In this post on impeachment, I want to state some presumptions that I think should apply in impeachment proceedings, including the latest impeachment of President Trump.
First, in my view, there should be a strong presumption against impeaching a president. The decision of who should be president is for the American people to make. The Constitution permits Congress to override that decision, but Congress should be very hesitant to use that power — and Congress always has been until pretty recently.
Although the Constitution uses the language of criminal law — “crimes” and “misdemeanors” — the criminal law standard of proof beyond a reasonable doubt should not apply, in my opinion. However, the evidence of the “high crimes and misdemeanors” should at least be clear and convincing. If the president is to be impeached because of things he said, as is the case in the second impeachment of Trump, ambiguities in his statements should be resolved in his favor, rather than in favor of impeaching him.
The second Trump impeachment could, at most, have removed Trump for only a few days of his term. However, the same standards, principles, and presumptions should apply to the impeachment of a president at any point during his term and, if such thing is permitted, to any impeachment proceeding that occurs thereafter.
A second presumption, which follows from the first, is that the impeachment and removal of a president should occur only after thorough deliberation and consideration of the evidence. Whatever else one thinks about the first Trump impeachment, it followed that model. So did the Clinton impeachment and the Nixon impeachment proceedings (which were aborted when Nixon stepped down).
The second Trump impeachment did not. It was rushed through. And I gather that the trial, if it occurs, will also be a rush job.
Supporters of the impeachment say the evidence against Trump is clear. They would say that, and did during the first impeachment, as well.
However, Trump made no statement of which I’m aware telling anyone to riot, invade the Capitol building, or launch an insurrection. Thus, the case that he incited violence — the only plausible grounds for impeachment — isn’t so clear, after all.
It depends on a close analysis of the words Trump used, how they were interpreted, and the reasonableness of the interpretations. It might also depend on Trump’s intent.
The House should not have impeached Trump without more deliberation than occurred.
Finally, for Republicans and conservatives, there should be a presumption against taking any action relating to partisan politics or the treatment of political personages that the Democrats favor. Democrats are our adversaries. They are trying to gain power at our expense. Increasingly, they are using that power to punish us.
This doesn’t mean that Republicans and conservatives should never support the impeachment of a Republican. The presumption against doing so can be overcome. But our starting point should be opposition to any Democratic effort to punish a Republican, just as the Democrats always start from a position of opposition when punishment one of theirs is under consideration.
In my next post about impeachment, I will turn to the specifics of the latest Trump impeachment.
UPDATE: A reader points to another possible basis for impeaching Trump besides what he said to protesters — his efforts to persuade Mike Pence to reject electoral votes in disregard of Pence’s duty as vice president. I will consider this ground in my next post about impeachment.