On Saturday, February 13, 2021, former President Donald Trump was acquitted by the United States Senate after being impeached (indicted) by the House of Representatives on January 13. 57 Senators (including 7 Republicans) voted to convict Trump of Incitement of Insurrection, a historic and extraordinary article of impeachment. The Republicans who voted to convict Trump included Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey. This is the highest number of Senators from an impeached president’s party to vote for conviction. Still, it is extraordinary that Trump was acquitted given the evidence against him, the fact that many Senators’ lives (including Republicans) were at great risk during the insurrection, and the fact that the stability of our democracy is at stake.
The extraordinary acquittal of Donald Trump begs the question of what exactly can a president be impeached for. If a president of the supposed largest democracy in the world can get away with inciting an insurrection against that democracy and not suffer any consequences (including being allowed to run again in 2024 if Trump chooses), a dangerous precedent has been set for the future. It’s a precedent that will imperil this democracy for years to come.
The Trump presidency exposed many systemic and structural flaws of our political system. The second Senate acquittal of Trump points to a possible flaw in the impeachment clause itself. What we mean is that the framers of the constitution did not construct it around the idea of political parties. The two main political parties dominate. They largely set the rules. What’s supposed to be a system of “checks and balances” is now merely a means of neutralizing the other party during a divided government. During impeachment, it has usually meant that there will never be enough votes to convict and remove an impeached president from office. Growing partisanship and the precedent set by Trump’s second impeachment will probably ensure that future impeached presidents who actually commit high crimes will remain in office or will be able to run again if the impeachment trial happens after the president leaves office after losing an election.
Even among the 7 Republicans who voted to convict Trump, politics very much played a part.
Senator Richard Burr of North Carolina is serving his last term in the chamber. So, he felt free to apparently vote his conscience.
Bill Cassidy of Louisiana just won reelection to the Senate in 2020 and will not face voters again until 2026.
Susan Collins just won reelection but has sometimes been known to go against Trump in rare circumstances. Both Collins and Lisa Murkowski are in states that use Ranked-Choice Voting and there has been debate about whether or not RCV has actually helped the two Senators.
The Alaska Public Media explains Murkowski’s situation in Alaska:
It’s easy to imagine Murkowski would lose to a Trump-endorsed candidate in a closed Republican primary. She already lost a primary election in 2010, before she angered tons of Trump supporters with her inconsistent loyalty to him.
But in August 2022, it won’t be just Republican voters who decide whether Murkowski should advance to the November ballot. She and whoever else wants the seat, of any party, will be on the same ballot for all primary voters. The top four will advance to the general election, and voters will rank them on the November ballot.
Murkowski said the new open primary and ranked-choice voting puts her in a better position.
“I think so,” she said. “I actually, after giving it a fair amount of study, I like that this will put forward, hopefully, a process that is less rancorous.”
Pat Toomey of Pennsylvania is, like Richard Burr, not seeking re-election.
Ben Sasse, won convincingly in 2020 and won’t have to face voters again until 2026. Sasse of Nebraska had a strong win in a very conservative state (outside of Omaha and Lincoln) despite him being known for speaking against Trump periodically.
Romney may be in a more vulnerable position. He’s up for re-election in 2024 and is expected to run for his seat again. However, Romney was elected to the Senate in 2018, in a very conservative state, despite forcefully speaking against Trump at times, especially during the primary in 2016.
The point here is that impeachment will only work if there’s enough political will to do so, not because it’s the right thing to do in a democracy that depends on executive accountability. 43 Republicans chose to acquit and some believe that Trump would have been convicted had there been a secret ballot.
Senator Mazie Hirono, a Hawaii Democrat, said that “most” Republican senators would vote to convict former President Donald Trump of inciting the attack on the U.S. Capitol if they were given the opportunity to use a secret ballot.
In a Tuesday interview with CNN, Hirono suggested Republicans were making their decisions out of “fear.”
“If the Republicans could vote by secret ballot…most of them would vote to convict,” Hirono told CNN. “So again, that shows that they are hiding behind an unconstitutional claim.”
Only two other presidents in United States history have been impeached by the House. In both cases, the Senate was unable to convict. Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act. The Senate acquitted him weeks after. The Tenure of Office Act was said to be passed to prevent Johnson from removing civil officers without senatorial consent.
Time goes on to explain:
Johnson’s defense argued that he hadn’t appointed Secretary of War Stanton in the first place, which meant that he wasn’t violating the Tenure of Office Act. They also claimed that Johnson intended to push the Act before the Supreme Court. Historian Hans L. Trefousse argues that the Senators who voted against removal decided that Johnson was being pushed out of office for political reasons: “[The] weakness of the case… convinced many that the charges were largely political, and that the violation of the Tenure of Office Act constituted neither a crime nor a violation of the Constitution but merely a pretext for Johnson’s opponents.”
This result set a major precedent for future presidential impeachments: that Presidents shouldn’t be impeached for political reasons, but only if they commit, as the Constitution stipulates, “treason, bribery or other high crimes and misdemeanors.”
As one of the defecting Republicans, Senator James Grimes, said, “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President.”
Bill Clinton was impeached by the House in December 1998 and acquitted in February 1999 for perjuring himself before a grand jury regarding a sexual relationship with White House intern Monica Lewinsky and for allegedly obstructing that investigation. The House impeachment vote and the Senate trial vote fell largely on party lines.
The only case in which impeachment may have actually worked was in the case of Richard Nixon. In 1974, the House Judiciary Committee approved three articles of impeachment against President Richard Nixon for obstruction of justice, abuse of power, and contempt of Congress. Nixon resigned before an impeachment vote went to the full House after being compelled to comply with the special prosecutor, investigating Watergate. As the evidence against Nixon mounted, his political support among Republican Senators plummeted. Nixon was faced with the fact that he would likely not withstand a Senate trial vote and resigned from office in August 1974.
We are far removed, in terms of both time and politics, from the days when we came close to holding a corrupt president accountable for his crimes. Even Donald Trump’s actions, which led to his first impeachment, were worst than what Nixon did during Watergate. Not only was Trump acquitted by the Senate, but his polling rose even in the midst of his impeachment trial and in the weeks after. Right after Trump’s Senate acquittal, he did exactly what many Democrats feared an acquitted Trump would do, swiftly moving to purge officials who tried to hold him accountable. Many described the act as his Friday Night Massacre, a reference to Nixon’s Watergate scandal. In the months to follow, and even as the country was gripped with a devastating pandemic and historic racial justice protests, Trump would go on to launch some of the biggest attacks on democracy in US history.
Given its apparent ineffectiveness in an era of growing partisanship and party politics, we may need to rethink the impeachment clause of the constitution altogether. We may need to devise a new way to hold presidents accountable for their crimes and abuses. This will likely require a constitutional amendment, but barring something miraculous, this is very unlikely in our current political era. So, we’re left to imagine a political system that could do a better job at holding presidents accountable, for instance, in special circumstances that could trigger a national recall vote. Parliamentary democracies solve this problem by holding snap elections.
We must fight for nothing less than full and sweeping democratic reforms. Such a fight will be enormously difficult given our current political circumstances and barriers, but it’s required if we seek to rebuild a badly damaged democracy.
Photo Credit: House Television via ABC News