A Qualified Defense of Impeaching Trump Again

I supported the previous impeachment of Trump, and would be happy to see him impeached and convicted now. But before proceeding, we should carefully consider how effective a new impeachment effort is likely to be.


In the hours since the awful riot by Trump supporters at the Capitol today, many have called for Trump to be impeached for a second time, due to his role in inciting the riot. In addition to numerous Democrats, advocates include prominent conservatives such as David French, John Podhoretz (who harshly criticized the earlier effort to impeach Trump, and leading legal scholars, such as my co-bloggers Keith Whittington, and (in a joint post) Will Baude, Sam Bray, and Steve Sachs. By the time you read this, there are likely to be more supporters of a second impeachment, perhaps many more.

I myself supported the earlier impeachment of Trump over the Ukraine scandal, and also believe he deserved to be impeached for other lawbreaking and abuses of power, such as his cruel child separation policy. I think today's events provide additional grounds for impeachment and removal, for many of the same reasons French, Whittington, and other advocates have pointed out. Unlike in the Ukraine case (where Trump violated a federal criminal law, as well as abused his powers), or in the child separation case (a policy courts ruled to be illegal), it is not clear to me that Trump has broken the law in this instance, though I admit I could be missing something on that point.

But even if Trump hasn't broken the law, he has abused the powers of his office by falsely claiming that the election was stolen from him, and repeatedly inciting violence by his supporters. David French summarizes the issue well:

Donald Trump sowed the seeds for the riot of January 6th from the moment he entered the race in 2015, when he made it plain that he welcomed violence to silence protesters at his rallies, when he broadcast that any election defeat – even then – would not be legitimate. He kept sowing when he refused to promise that he'd support the peaceful transition of power. He sowed the seeds when he famously told the Proud Boys – a far-right street militia – to "stand back and stand by." And he sowed still more when he raged, day by day, that he'd suffered a great injustice on November 3rd.

And now, as the nation's capital reaps what he sowed, he can't stop stoking the flames. In a video message ostensibly designed to quell the violence, he repeated his election lies. And he told members of the insurrection, "I know how you feel." He told the rioters, "We love you."

Yes, Donald Trump loves his violent mob.


For reasons well-summarized by  Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated. I have previously defended such impeachments for noncriminal abuses of power against claims that they would create a dangerous slippery slope (see here and here). Everything I said then still applies.

If Trump is impeached again, I will be happy to support the effort and to advocate conviction. If Trump is convicted, I hope the Senate will not only remove him from office, but impose the additional penalty, provided for in the Constitution, of "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." That would prevent Trump from returning to the White House in 2024, or at any future time.

But before going down this road, advocates should consider whether it is likely to succeed. A second impeachment, followed by a second acquittal, could potentially benefit Trump as much or more than it hurts him. He and his supporters could point to the acquittal as a vindication.

Obviously, a second impeachment would be a stain on his reputation, even if he avoid conviction. But it's not clear that two acquittals would really be much more of a stain than "only" one. It's still possible that a second impeachment would be worth the risk. Even if Trump gets acquitted, he could take some real damage if a large number of GOP senators vote to convict (unlike last time, when Mitt Romney was alone in his party for doing so). If there is substantial GOP support for a second impeachment, I say "full steam ahead!"

But if not, we should at least carefully consider whether this approach is worth it or not. The main goals of impeachment are to remove a dangerous president from office, impose a political price for abuses of power, and deter future misconduct of the same type. These goals are only achievable if the target is either convicted or at least suffers damage to his reputation and political standing. If he gets acquitted, and his standing remains intact —or, worse still, actually improves—the impeachment has to be considered a failure.

Admittedly, an otherwise unsuccessful impeachment effort might eventually be vindicated in the eyes of history. As I wrote a year ago, it is still not clear what the ultimate impact of Trump's first impeachment will be. But a well-thought out impeachment effort should also seek to achieve beneficial short and medium-term goals. At the very least, it should avoid creating harmful effects that might actually benefit its target and his allies.

In sum, I believe there are ample legal and moral grounds for impeaching and convicting Trump, and for barring him from holding any federal office in the future. But advocates of a second impeachment should carefully consider the potential political effects before proceeding.

UPDATE: I should note that today's events also strengthen the case for potentially using the Twenty-Fifth Amendment to remove Trump from office and for prosecuting him after he leaves. I will leave the former to those with greater relevant expertise. I hope to address the latter in a future post, if I decide I have something useful to contribute to the debate.

NEXT: Impeach and Remove

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  1. Cool. Count Ilya in on the sentiment and give him kudos and the same social esteem. Hooray for social esteem!

    But at the same time, Ilya wants to say he’s not as unhinged and emotional as the others.

    1. Ready for compliance with the preferences of your betters, Ben? Losing has consequences. You are about to experience them. I will enjoy observing this.

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  2. Nah, man. I could see thinking he should be impeached for this if there was time.

    But then you go and assert he should have been impeached for the family separation thing. That was a policy decision that you disagreed with. It was arguably a bad policy and was certainly cruel, but it doesn’t approach impeachment level, as it wasn’t a high crime or misdemeanor. It just doesn’t get close.

    It demonstrates a bias that’s so strong that I’m questioning my agreement with you here.

    1. Yep. I could hear this from an unbiased party, if there still were such a thing on staff at Reason. But this smacks of agenda from the get-go.

    2. The Kids-in-Cages started under Il Duce Redux Obama, pre- 2014.

  3. Maybe Somin should finally take his own advice and foot vote to somewhere more his style, like Xinjiang.

    1. After all the worrying he did about travelers from Yemen, he still has not announced a speaking engagement in Yemen.

      1. Are you ready for a Democratic Senate, Democratic House, and Democratic President, clingers?

        Ready for three or four consecutive Democratic presidents? Ready for an enlarged Supreme Court? Universal health care? A competent pandemic response? Enlarged House? Criminalization of voter suppression? Ready for conservatives to be a permanent political underclass, scavenging for the crumbs their betters drop their way?

        1. You are deranged.

  4. You guys just don’t get it. You never did understand Trump, almost as if you refused to make any effort to understand Trump.

    He’s popular because he’s not an ordinary politician. He is possibly the most transparent honest President this country has ever had, excepting George Washington simply because he didn’t really want to be President, and Jimmy Carter for various definitions of Jimmy Carter.

    Obama, “the most transparent President ever”, was exactly why Trump was so popular, and you and everyone else who refuse to even try to understand Trump is why he won.

    Impeach him again and it won’t matter whether he loses or not. He will be even more popular among his supporters.

    Your ridiculous support of Biden because Trump spent too much just shows how blind you willfully are, to Trump and to Biden. Your ridiculous support of both Trump impeachments is just more of the same.

    1. “He is possibly the most transparent honest President this country has ever had”

      Preposterous. Does anyone in their right mind believe that horsesh*t? He constantly lies. He constantly makes things up.

      If you really believe what you just wrote, you’re _blind_.

      1. When I say honest, I mean you can tell what he will do from what he says. I don’t mean he never lies. I mean regardless of whether he lies or tells the truth, you know exactly what he’s gonna do.

        If you think other politicians fit that definition of honest, you are the blind one. With Trump, it’s pretty damned obvious what he means and what he says.

        If you think Obama was transparent, and Trump was opaque, you are blind again.

        1. Good point. I remember they every time I look at that big beautiful way that Mexico paid for.

          1. And do you also still have your health plan that you liked so much?

            Do you still believe Hillary’s lies about her illegal email server? Her lies and excuses for Bill’s rapes? For that matter, do you still believe Bill didn’t rape those interns, and that he did nothing untowards when he flew on Epstein’s private jet to Epstein’s private island?

            How do you choose which lies to believe? It’s is flat amazing how you deny all the lies you like, and pretend to be suckered by the lies you don’t like. No one with half a brain believed Trump could make Mexico pay for that wall. Everyone knew he wanted to build it. Whereas Obama deported more immigrants than Trump, but lied so much and so well that you don’t believe it ever happened; but Trump, oh he was a monster because he tried to do what he promised to do.

            Let’s see: Obama got a Nobel Peace Prize for his campaign promises, and then started a flood of new wars. Obama promised to shut down Gitmo, got stymied, and never tried again. Compare that to Trump’s wall and how many shenanigans he tried — that’s the kind of honesty that his supporters liked. But I guess Obama’s lies is what his supporters like.

            1. My point is not that I think Obama was exceptionally honest or that I support him. My point is that Trump is exceptionally dishonest, and I genuinely have trouble believing that you can’t see that.

              I agree that you can generally predict what Trump will do (i.e. something that is simultaneously disgustingly self-serving and grossly incompetent). But that’s being predictable, not being honest. Indeed, the fact that there’s no particular correlation between his saying that he will do something and his doing it would generally be considered dishonest.

              1. I think the difference between the two is that Obama told tactical and strategic lies, he lied in an effort to fool people into acting against their own interests.

                Trump engages in endless, tiresome braggadocio. That IS, technically, lying, but it’s a rather different sort of lie.

                There’s also a lot of lie inflation when it comes to Trump. The WaPo has that database of Trump lies, and I’ve been through it. It’s a festering joke, if Trump says it’s a nice day, and it was raining somewhere a thousand miles away, they record it as a lie. Literally, they’ve still got Trump’s promise to renegotiate NAFTA listed as a lie. He actually did it, and it’s still listed as a lie!

                I would not regard Trump saying he’d make Mexico pay for the wall as a lie. It was perfectly feasible to do so, by taxing remittances. The problem was that he did not yet, at that time, realize that the Congressional Republicans who’d ran along with him on improving border security had been themselves lying, and would oppose his every effort.

                When you promise to do something, attempt it, and fail, does that really qualify as a lie?

                1. “When you promise to do something, attempt it, and fail, does that really qualify as a lie?”

                  Only if you are a Republican.

                  Democrats NEVER lie.

            2. Being a more obvious liar does not make you more honest. It merely denotes that you are less interested in the truth; that you don’t even care if what you say is true. It’ll surely make you a better liar, in time, because you’ll get so much practice, and you’ll be relaxed, because you don’t feel guilty about lying.

              No; if you’re an obvious liar, you are worse; you are less honest.

        2. “When I say honest, I mean you can tell what he will do from what he says”

          Oh so true, which is why it would be a mistake to impeach Trump before he (finally) announces his Beautiful Cheaper Healthcare Plan.

          I hear he’s set to unveil it in another week…..

    2. How much of the social fabric are you folks willing to tear in the process?

      A lot of his supporters are of the belief that “the only good lawyer is a dead lawyer” — how much of the social fabric are you willing to tear going after this man?

      And at what price?

      1. The right-wing losers get to decide how many of them get to die for bigotry, backwardness, ignorance, stupidity, and more bigotry. Suit yourselves. But you will not be appeased or offered concessions by your betters. Toe the line or sustain the consequences. Take Ted Cruz with you.

    3. When people speak honestly and frankly they’ll speak quickly and confidently, that’s because they don’t need to filter their words or think about them too much.

      When they lie they need to think a lot, and so they speak slowly and cautiously so they can keep the lies straight.

      Politicians are often at risk of having their words misunderstood or taken out of context, and so even when they’re telling the truth they speak slowly and cautiously. That’s why it always sounds like they’re lying.

      Trump on the other hand speaks quickly and confidently, but that’s not because he’s honest. It’s because he’s so dishonest he doesn’t care if his lies are easily detected. If you dealt with him one-on-one on a daily basis you’d figure out the shtick pretty quick and get tired of it. But because of how the news cycle works the BS never quite catches up with him.

      But please think back about hearing him talk and think about why he “sounds” so honest.

      1. No, politicians lie, period. Remember “If you like your health plan, you can keep your health plan.” Or “We had to pass the bill to find what was in it.” Both from the most transparent administration in history.

        But gosh, he spoke so intelligently!

        It’s so funny — you clowns hate Trump because he is rude and crude, lewd and loud, and don’t look beyond what your ears here. You like Obama because he spoke so intelligently, and you didn’t want to look beyond what your ears heard.

        The core problem is that you are so infatuated with government, period. Instead of recognizing that government is the problem, you look for nicely groomed nicely spoken liars for leaders because you don’t like thinking for yourselves; and because you don’t trust yourself to think for yourself, your don’t think anybody else should be allowed to speak for themselves.

        1. Your problem is that you are a disaffected, bigoted, ugly right-wing loser who will spend the rest of his deplorable life complying with the rules established by people like me. This seems to bother you. You should be accustomed to it by now, you worthless, vanquished dumbass. Now be nicer, or we might not be so gracious about it.

          1. Are you ready for the next mid-terms? If Biden runs his promised policies you it will be hard to find a Democrat is the House or Senate.

      2. Trump on the other hand speaks quickly and confidently, but that’s not because he’s honest. It’s because he’s so dishonest he doesn’t care if his lies are easily detected.

        Top politicians all have in common the ability to lie convincingly. Nothing good ever comes of this. Voting for the lesser of two evils still gets you evil.

        I wish I had a job whete my spouse and friends magically got rich.

  5. Is that really the best argument you can come up with? He is a mean man? Maybe the left shouldn’t have spent the last year stoking a near race war. If we want to talk about accountability, lets start with that.

    1. Do they ever truly have anything besides that?

      1. We will have your compliance, bigot. The easy way or the hard way. But you will comply. You get to whine as much as you wish, though. Cry a little, too, if you like. But your ugly, stale thinking will lose. Being a low-grade clinger has consequences.

    2. Jimmy, the issue of the dead woman likely will get ugly.
      God help us if it was a Black cop who shot her…

      1. Need a hankie? A Band-Aid? A lollipop? A binkie?

        1. “Need a hankie? A Band-Aid? A lollipop? A binkie?”

          Personally, I would prefer your head on a pike.

          But, that’s just me.

      2. Why? I mean, I’m sure whatever you’re thinking, it’s something unspeakably racist and offensive, but I don’t see it.

  6. Jews be jewin’. People are out to get the jew controlled congress. Liberty takes many forms.

  7. It’s hard not to see volokj conspiracy and their ilk cozying up to Trump and his supporters as partially responsible.

    Even now in the comments, people who praised Somin et al are now calling them betrayers. They say the writers on this site should keep faith with Trump rather than abandoning him when he’s in his darkest hour.

    You allowed yourselves to get puffed up by these treasonous morons, and you lost your way. No you have no leg to stand on.

  8. Ilya Somin is a lawyer. Dismissed.

  9. What is your evidence that the election wasn’t stolen? Has there been a single public transparent investigation, showing its work?
    Biden should be called President Lachey.
    The vote spikes and turnout numbers are both impossible under normal election, balloting and counting processes.
    Why do Democrats oppose a commission to study this election?

    1. What is your evidence that the election wasn’t stolen?

      You understand that you’re literally asking someone to prove a negative?

      1. Prove that the ballots are real. No more proving a negative. FIFY

        1. The ballots fit all the standard tests for being “real”, and the null hypothesis is that the ballots are legit. You don’t get to discard massive numbers of ballots because they don’t meet some test you invented after the fact.

          And here’s another question, people who have EMPHATICALLY said that the election outcome was legit include:
          1) Mitch McConnell (who will now lose his cherished control of the Senate) + several other GOP Senators
          2) William Barr and Trump’s (now fired) head of election security.
          3) All the GOP election officials in the states in question.

          What possible motive would so many Trump supporting officials have for covering up Democratic election fraud?

    2. What is your evidence that the election wasn’t stolen?

      Where is your evidence that you didn’t sodomize my son’s puppy?

  10. There’s no expiration on the first impeachment. The senate could dust that off and remove DJT immediately.

    1. Yes there is. The Senate already voted it down.

  11. What incitement?

    I want you to think long and hard about how low you’re setting the bar for “incitement” here, and the implications going forward if it stayed that low.

  12. It was politically stupid before. It’s deranged now. All you are proving is that D-supporting pundits are not only sore losers, they’re poor winners as well.

  13. That’s setting a pretty low bar for ‘incitement,’ Prof Somin.

  14. Are you people TRYING to make Trump more popular? If you do that, Impeachment will be viewed as a RESUME ENHANCEMENT.

    And people will treat our institutions with even less respect as a result. Did you fucks not see what happened in the Capitol? That happened because people ALREADY lost respect for our institutions on election day. Impeachment is only going to magnify that sentiment.

    I thought you were the party of “unity” and “reasonable government.”

  15. “Obviously, a second impeachment would be a stain on his reputation,…”

    Seriously? Like the “stain” on Bubba’s reputation?

    There is precious little chance 45 would be convicted. Guys like him wear failed impeachments like a badge of honor. I believe this would cement his standings amongst his supporters.

    Move on. Biden will be president for the next few years, presiding over a friendly House and ambivalent Senate. Lets see if he and the Dems can do something constructive, or if they again squander all the good will they have amongst the electorate.

      1. Not squander if they can now build a government so big you can no longer resist. Hold on tight folks.

  16. “it is not clear to me that Trump has broken the law in this instance, though I admit I could be missing something on that point.”

    Understatement of the Year.

  17. “…such as his cruel child separation policy”
    One of a numerous examples why we should have impeached Obama? Why is this different? Oh, of course, you don’t like him.

  18. I guess we are now used to doing impeachment as a form of legislation? Nice how y’all getting real comfortable with this absurdity.

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