There is a gaping whole in the fabric of the U.S. constitutional system, one that has been horribly exposed and presents a danger that all Americans, regardless of political affiliation, should be able to unite to confront.
The danger of an autocratic, ambitious person rising up to throttle what democracy we have in this country is very real and has perhaps never been more apparent than it is right now. Yes, Donald Trump is out of office, but the wounds he left are yawning and inviting the next aspiring autocrat to take his place.
Some have made the staggeringly incorrect argument that Trump’s final departure and the failed attempt to subvert the 2020 election by legal means and then by use of illegal force show that our democracy is strong and can beat back challenges. In fact, both prior and subsequent events have shown that the opposite is the case.
The bulwarks against a president assuming dictatorial power were woven into the constitution and had been thought to be robust. Trump showed them all to be as ineffective as vapor. It is only Trump’s own lack of strategic thinking, his megalomania, and his overreach that saved us, despite his proving the constitutional barriers illusory.
Trump’s desperation to hold on to office led to that overreach. His insistence that the election was rigged, despite having no substantiating evidence, led to an attempt to coerce a different outcome by violence, an attempt that simply didn’t have enough mass participation to succeed, although it did attract enough true believers to shake the country to its very core. Even some of his Republican supporters had to support calls for legal action against the perpetrators of the violence, even if they did not join the calls to pursue a case against Trump and other inciters of the uprising.
Impeachment is the most obvious tool to pursue such charges with, and it has been used in the past to some effect. While Richard Nixon was not impeached, he is the sole historical example of both parties uniting to condemn the actions of a president who exceeded his authority. The threat of an impeachment that was going to be supported by his own Republican party was enough to force Nixon’s resignation.
But Nixon was an exceptional case. With both Andrew Johnson and Bill Clinton, impeachment was an overwhelmingly partisan process, with not a single senator in either case voting to convict the impeached president. Mitt Romney broke that precedent when he voted to convict Donald Trump in 2020. It’s quite possible that Romney will be joined by a few other Republicans in Trump’s trial in February.
Still, despite the extraordinary circumstances of the January 6 attack on the Capitol building, a preliminary vote made it clear that it is highly unlikely the Senate will vote to convict Trump. The argument put forth by some Republican senators — most prominently by Rand Paul of Kentucky — that the Senate trial is improper because Trump is already out of office is a threadbare cover for Republicans to hide behind as they make it clear that they will acquit Trump of the incitement that the whole world watched him commit on live television.
The purpose of Rand Paul calling for the Senate to dismiss the impeachment was not that Paul believed he would win that vote. He surely knew he would not. Rather it was meant to demonstrate that the trial was an exercise in futility because there was no chance that seventeen Republicans would vote to convict. The 55–45 vote bore him out. The vote largely went along party lines, with five Republicans joining all fifty Democrats in voting against Paul’s motion. Once again, we see that partisanship and the impeachment process make for an incompatible couple, with the example of Nixon being the exception that proves the rule that Trump, Andrew Johnson, and Bill Clinton establish.
Johnson’s impeachment was the result of Abraham Lincoln’s decision to have a pro-slavery vice president in hopes of unifying the country after the Civil War who then unexpectedly gained the presidency when Lincoln was killed. Johnson clashed repeatedly with the overwhelmingly Republican Congress, and it was this that was really at the core of his impeachment. His firing of Secretary of War Edwin Stanton was simply the spark that lit the fire, not the cause. That was purely political.
Bill Clinton’s behavior toward women, before and during his time in office was execrable and was seized on by Republicans to impeach him. But this too was nakedly political.
Now, with Trump twice being impeached but likely not convicted either time, we have seen that Nixon was the outlier and that impeachment is simply no longer going to constrain a president’s actions. It is not the brake against an out-of-control chief executive that it was intended to be. Whether that’s due to pure partisanship, as was the case with Johnson, or because it was abused by one party as was the case with Clinton, the result is the same.
The situation is made worse by the decision Monday of the Supreme Court to order the dismissal of cases against Trump alleging violations of the emoluments clause, a constitutional law against corruption that Trump violated repeatedly and brazenly. The Court made no statement but ordered that lower court rulings finding Trump in violation of the emoluments clause be wiped out as Trump’s departure from office left no standing to bring the charge.
While some news reports suggested that this left the matter of a president profiting from his time in office open, in fact it slammed the door shut. The reluctance to bring corruption cases against a sitting president combined with this ruling effectively means that the emoluments clause is a nice idea that cannot be implemented.
Trump revealed for all the world to see that corruption and authoritarianism are acceptable vices for the president of the United States. The remedies we have against a president indulging themselves in them are ephemeral and meaningless.
Democrats are trying to ensure that Trump can never run again. It’s a worthwhile endeavor. Some of Trump’s most ardent followers have realized they’ve been duped as Trump left them to face the consequences of their actions with no help from him. But in four years, a huckster like him could, in theory, win them back and challenge for the White House again. I have always doubted that he would do so, but I do think he will try to get someone close to him — perhaps a family member or an exceptionally loyal Republican leader — to run in his stead. In any case, barring Trump would be worthwhile, for the message it sends if nothing else.
But it’s not going to happen in Congress. And we really need to think about what comes next.
A smarter person than Trump who is nonetheless his equal in the ability to sucker angry people into following him will come along, probably soon. They will follow the Trump playbook without the self-defeating immaturity and laziness. And what will we do with no legal tools to stop them?
There are a number of strategies that can be employed to prepare ourselves for this eventuality. The easiest, and one that Joe Biden can do entirely on his own, is to direct the Department of Justice to abandon the guidance that Robert Mueller brought to light that states that charges cannot be brought against a sitting president. The attorney general can guard against politicizing the power, and there can be stipulations, such as requiring some measure of bipartisanship to open an investigation or empowering an independent commission to decide on whether charges can legitimately be brought.
There are ways this can be done, and they must be explored because as things stand now, the obvious fact is that, not matter how often politicians falsely claim otherwise, the president is indeed above the law, and that cannot be tolerated.
It is impractical to even consider changing the process of impeachment. Because it is laid down in the constitution, it would require a constitutional amendment to change it, and that is obviously not a possibility. But the constitution does not forbid an alternative process.
Article II Section 4 reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This section has generally been understood to mean that this is the only process by which these individuals can be removed from office. And, while the process of impeachment and trial are described in Article I Sections 2 and 3, there is also the clause that reads, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The intent is clearly to bind the president and other officials to the law. By extension, if we remove the DoJ guidance that impedes prosecutors from indicting a sitting president, then there are consequences for a president breaking the law, even if those consequences cannot be immediately realized. An indicted president could face trial as soon as they are out of office, for example.
Could such a power be abused? Yes, and this would need to be considered when enacting the process for indictment outside the impeachment process. But the attorney general would control that process, and that person would have been selected by the president, so they would be less likely to side with a hostile Congress against the president without good reason. That is already a guard against using an indictment for political purposes. Other safeguards could be built in.
The specter of an indictment itself would carry political consequences and potential scandals that any president would have to be wary of and would, therefore, deter them from violating the law. And if Trump made anything clear it is that we do not currently have sufficient tools to deter a corrupt or authoritarian president from criminal and even seditious activities.
Whether we pursue these ideas or some other, the time for that pursuit is now. If a Democratic Congress enacted such a law with a Democratic president in the White House, it would give the constraints a great deal more legitimacy, as well as enhancing the chances of it passing. After what we just saw, now is the time to act. The president cannot be above the law any longer.