TRUCKEE, California: The US Senate will hear what may turn out to be the most important trial in US history on Tuesday (Feb 9).
After months of hyping conspiracy theories and pressuring election officials to falsify results, Donald Trump incited a mob to storm the US Capitol and stop Congress from certifying the presidential election on Jan 6.
If this does not warrant conviction in his upcoming Senate trial, what possibly could?
The US Senate must convict Trump and disqualify him from ever holding office again for three reasons.
A VIOLATION OF THE PEACEFUL TRANSITION OF POWER PRINCIPLE
First, Trump’s actions easily qualify as an impeachable offence. The Senate may convict and disqualify Trump if he committed “treason, bribery, or other high crimes and misdemeanours” under the US Constitution. The key question, then, is whether Trump committed a high crime.
There is little doubt he did. His intentions over the US Capitol storming is not the point.
Trump may not have known the mob would physically breach Capitol Hill security. He may not have wanted five people to die as a result. But he organised and incited his supporters to physically stop Congress from performing its constitutional duty.
This is not just a crime; and it’s not just a high crime. Trump’s acts violated the most essential constitutional principle in US democracy, that a peaceful transfer of power follows an election.
This organising principle is, indeed, the basic necessity on which the rest of the US democratic system rests. The alternative to the peaceful transfer of power – the usurpation of power by an incumbent against the will of the people – is the antithesis of democracy.
If not the rule of law, what else guides how US society is governed? It should go without saying that even in difficult, polarising times, a sitting president accepts the victory of a newly elected leader and step down without protest.
LEAVING OFFICE SHOULDN’T GIVE TRUMP A FREE PASS
Second, the US Senate may convict and disqualify Trump even though he left office. The text of the constitution doesn’t limit Senate trials to incumbents.
There are numerous examples in both American and British law of officials being impeached after leaving office. The US impeachment power came from England, where both impeachments by the British Parliament in the 18th century were of former officials. Even Thomas Jefferson was subject to an impeachment trial in Virginia after leaving office as governor.
Impeachment trials serve the chief purpose of holding elected officials to account and giving them a chance to clear their names, even after they step down.
Of course, if the contrary were true – and a president could escape a US Senate trial by resigning or committing crimes just before leaving office – then the constitution’s disqualification remedy would be hollow.
Ultimately, the Senate, with Senators elected by US voters, is empowered to resolve open constitutional questions regarding its own proceedings.
UNFIT FOR THE TOP JOB
Finally, Trump’s efforts to overturn the election conclusively establishes he is unfit to be president. A presidential election is the ultimate source of legitimacy in US democracy.
It is the only time all Americans come together and vote on the same question.
This legitimacy weighed in Trump’s favour for years – protecting him against widespread efforts to remove him from office – even though his behaviour was consistently disruptive and disturbing for a US president.
For example, Trump refused to concede defeat at the ballot box until January, several months after the presidential election. For years he put down appointed officials like Dr Anthony Fauci, undermining the US COVID-19 response. And Trump, of course, was already impeached by the House of Representatives for his 2019 effort to pressure Ukraine to announce investigations into Joe Biden.
But the people had spoken in 2016 and they had elected Donald Trump.
Yet this same essential consideration – that presidential elections are the deepest reflection of the people’s will that the US political system affords – led to Trump’s catastrophic demise when he tried to reverse Joe Biden’s victory.
The constitution provides enormous leeway for presidential misbehavior. It is not an impeachable offense to be crass, inappropriate, immoral, irrational or even reckless. Trump indeed labelled his political rivals such denigrating nicknames as Crooked Hillary (Hillary Clinton) and Sleepy Joe (Joe Biden). And he slandered the media with the label “enemy of the people.” But the constitution likewise has foundational rules that US presidents must follow.
For months, Trump was at war with the most fundamental one of all, the peaceful transfer of power. And this culminated in his incitement of the mob that sought, through violence, to overturn the election.
READ: Commentary: With Trump off social media, platforms must crack down on incendiary speech from other leaders
Donald Trump’s behaviour was an offence – a constitutional high crime – unlike any other in US history. He must never hold office again.
Because the Constitution requires a two-third majority to convict, the outcome at his trial will depend upon whether 17 Republican senators cross the aisle vote to convict Trump. Despite the compelling reasons to do so, the political calculus in the US – where Trump remains popular with Republicans – makes that a very unlikely result.
Listen to Prof Chan Heng Chee and BowerGroupAsia Managing Director James Carouso explain how America came to be so deeply divided amid a bitterly fought election on CNA’s Heart of the Matter podcast episode published in November 2020:
William Cooper is an attorney based in Truckee, California.