The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.