Making Impeachment an Actual Trial

On February 14—39 days after the January 6 Capitol riots—the United States Senate acquitted Donald Trump on charges of incitement of an insurrection against the government. The predictable decision was barely an improvement from the 2019 impeachment over his alleged attempt to coerce Ukraine into damaging then-presidential candidate Joe Biden. While Trump’s second impeachment produced the more bipartisan vote - with 10 Republican representatives and seven Republican senators joining all Democrats, respectively - the blame still lies upon the 197 Republican representatives and 43 senators who voted to acquit and turned a blind eye to Trump’s complicity. Despite having experienced the violent culmination of his months-long campaign to overturn a fair election first-hand, they still turned a blind eye to Trump’s culpability in mobilizing supporters to storm the United States Capitol and endanger their lives.

The bitter failure of Trump’s second impeachment has yet again exposed the desperate need for impeachment reform. Impeachment’s inherently political nature has jeopardized its purpose - combating a culture of impunity surrounding the executive branch - under the brutal partisanship of today’s Congress. To ensure a fair removal of a federal official, Congress must restore impartiality and legitimacy to future impeachments through a series of legislative reforms.

Impeachment is the ultimate symbol of checks and balances upon the executive branch. The Constitution grants the sole power of impeachment to the House of Representatives, while establishing the Senate as the sole body in charge of the impeachment trial. By placing the responsibility of impeachment and trial within a legislative body, the Founding Fathers established impeachment as not a criminal court trial, but a political, last-resort mechanism to decide whether an official had engaged in “an abuse or violation of some public trust.” According to Alexander Hamilton, Congress was the only branch capable of wielding such impeachment power - the other option, the Supreme Court, would hold no true “credit and authority” in their decision due to their smaller size and unelected justices. While the Founding Fathers certainly expected the imperfect arrangement to invoke “partisan passions,” they also trusted that the public virtue would motivate elected officials to place civic duty above a tyrannical president.

While admirable, such theories rely on a certain level of bipartisanship and morality within Congress members. They therefore fall flat with the presidency of Donald Trump and its blistering aftermath, where even five deaths and 140-plus injuries fail to set aside Congress’ partisanship and opportunism for the sense of moral duty the Founding Fathers envisioned. The 240 Republicans of Congress who voted to acquit Trump feared the repercussions of voting outside of the party line - they later saw the censures of Senator Bill Cassidy of Louisiana, Senator Ben Sasse of Nebraska, and Representative Liz Cheney of Wisconsin by their states’ Republican Party for voting against Trump. Meanwhile, Senators Josh Hawley of Missouri and Ted Cruz of Texas, both speculated to run for president in 2024, needed to appeal to the large majority of Republicans who still support Trump. Consequently, they led the pre-riot effort against certifying Biden’s electoral college votes and the post-riot acquittal of Donald Trump.

In other words, the Founding Fathers had not adequately prepared the nation for a Congress who disregarded the Constitution and history by the Congress alongside their duty to hold an authoritarian president accountable. As Republicans still needed a pretext for their partisanship-charged acquittal, Senate Minority Leader Mitch McConnell, who repeatedly denounced Trump as guilty, claimed that the impeachment of a former president was unconstitutional. Yet nowhere does the Constitution state that only a sitting official may be tried or impeached; in fact, there is a precedent for impeaching officials who have already left office. In 1876, William Belknap, President Ulysses Grant’s secretary of war, attempted to avoid impeachment for bribery by resigning. The House impeached him anyway, and while the Senate acquitted him, the House impeachment managers desired to set a precedent that any civil officer - sitting or former - is impeachable.

The damage of Trump’s acquittal may be done - but the United States must still ensure that it will not greenlight a future president, knowing the political limitations of impeachment, to blatantly abuse power in the final few days of office. Fortunately, two preliminary reforms - feasible due to the Founding Fathers, who gave “wide discretion” to Congress on the impeachment process - can prevent a permanent precedent of impunity for both officials and irresponsible Congress members.

The first reform would be to reinforce the significance of subpoenas within the investigation and trial. A particular issue with Trump’s first impeachment was his administration’s refusal to deliver subpoenaed documents; the House did not receive a single document from the 70 requested categories of documents from executive-branch agencies, leaving them with little federal evidence and cooperation. To re-establish impeachment as a serious, inescapable process, Congress must introduce a resolution warning legal and political repercussions, such as fines or committee removals, for individuals who refuse to comply with subpoenas. While still not adopting full practices of a criminal court, future impeachments would mount more of a significant challenge to a president’s abuse of power than, as Trump scoffed, an easily dismissable “witch hunt.”

The second, a constitutional necessity, would be the enforcement of representatives and senators’ impartiality during the impeachment and conviction process - an element nearly absent from Trump’s presidency. Moving forward, Congress must pass a larger resolution setting standards for the recusal of members personally involved in the impeachment charge. If members are implicated in their own misconduct alongside the suspected official, forceful recusals would prevent them from voting to acquit the official and save their own skin. Consequences would range from the Ethics Committee’s letter of reproval to, if they repeatedly refuse, removal from committee or censure. The resulting impartial set of impeachment jurors would restore legitimacy and public trust within both the process and Congress itself.

However, the ultimate problem of the most recent impeachment does not simply lie in a flawed process, but rather, in the fiercely partisan state of politics today. The greed and selfishness of politicians, intentionally divisive, has once more hindered them from acting as the public servants the Founding Fathers designed Congress around. Now, with Trump’s acquittal, the burden of restoring the decency of government falls upon Joe Biden and the 117th Congress - and the nation’s future will be determined by whether they will be able to unite and reform a nation deeply traumatized by the destruction of January 6.

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