Impeach and Convict Trump. Congress Must Defend Itself.

Impeach and Convict Trump. Congress Must Defend Itself.

Trump’s incitement of a riot is a violation of the separation of powers that threatens the foundation of the Republic.

By Bryan Garsten

Dr. Garsten is a political scientist.

  • Jan. 10, 2021, 3:15 p.m. ET
Credit…Erin Schaff/The New York Times

It is tempting to try to run out the clock on the Trump presidency. President Trump has already been impeached once and congressional leaders may assume they still lack the necessary Republican votes to convict and remove him in the Senate. Lawmakers concerned about the possibility for new abuses of power before Jan. 20 have been tempted to settle for urging the president to resign. But more is at stake than what the president might do in the next few days. If Congress declines to impeach and convict the president for his actions on Wednesday, its failure to act will weaken the basic structure of the Constitution.

The key issue is this: One of the three branches of the federal government has just incited an armed attack against another branch. Beyond the threat to a peaceful transition, the incident was a fundamental violation of the separation of powers. Prompted by the chief executive, supporters laid siege to, invaded, and occupied the Capitol building, deploying weapons and subjecting members of both chambers of Congress to intimidation and violence in an effort to produce a particular decision by force.

We have all been taught about “checks and balances” in school. The Constitutional strategy for limiting power requires that officeholders defend the institutions they occupy against what the framers called “encroachments” by the other branches. Usually encroachments are understood metaphorically, and there is time to allow the branches to work out their differences in the back and forth of political negotiation and occasional court battles. The president’s attempted encroachment on the constitutional rights of Congress this past Wednesday was anything but metaphorical.

The president aimed to reverse the decision that Congress was making on a question that the Constitution expressly reserved for the legislature. The specifically anti-congressional animus is most obvious in the fact that the only other elected member of the executive branch, the vice president, was specifically targeted in his role as president of the Senate.

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At Wednesday’s rally, Mr. Trump gave some prepared remarks on the so-called evidence of election fraud, but he worried aloud that the crowd would be bored by those details. The more powerful thread running through his speech was an argument that constitutional constraints were forms of weakness, that Vice President Mike Pence and Congress should not be allowed to certify the election, and that it was time to take the gloves off and fight.

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After Rudolph Giuliani, the president’s personal lawyer, exclaimed, “Let’s have trial by combat,” and Donald Trump Jr. said of Republican members of Congress who did not support Mr. Trump, “We’re coming for you,” the president took the stage. He praised his son and Mr. Giuliani, and then delivered a speech full of inflammatory implications. He stated: “We will never concede. We will not take it anymore.” He condemned the Republican Party for fighting like “a boxer with his hands behind his back,” urged Mr. Pence in his capacity as presiding officer in Congress, to “come through for us,” said it was up to Congress to refuse to certify the election, and then announced that he would lead the crowd down Pennsylvania Avenue to the Capitol just after the speech. About the possibility that Mr. Pence and Congress would fail to block certification of the election on Wednesday, he said, “We’re just not going to let that happen” and then remarked on the size and devotion of the crowd.THE INTERPRETER: Original insights, commentary and discussions on the major news stories of the week.Sign Up

The president did speak of protecting the Constitution, but made that equivalent to supporting his own electoral victory. He announced that “the Republicans have to get tougher” and then mockingly dismissed those members of Congress who worried “the Constitution doesn’t allow me.” He announced, “When you catch somebody in a fraud, you are allowed to go by very different rules” and proclaimed, “This is a matter of national security.” He went on, “We fight, we fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.” He concluded by repeating the call to walk down Pennsylvania Avenue to the Capitol to intimidate “weak” lawmakers into doing his bidding.

The president and his surrogates may say that the language against weakness and for fighting was metaphorical. After all, he also said that the protest would be done “peacefully and patriotically.” But when the violence first appeared on television, Mr. Trump did not immediately communicate any disapproval. When he did tweet a statement that afternoon, he confusingly urged his supporters to continue what they were doing (“Stay peaceful!,”) and reiterated his support for them — this at the very moment they were engaged in the attack. The president reportedly failed to order the National Guard to defend Congress. His own former attorney general, Bill Barr, thought it was fair to describe the president’s actions as “orchestrating a mob to pressure Congress.”

How will Congress respond? In the hours after the attack on the Capitol, members of Congress demonstrated their commitment to their institutional duties by returning to the building and finishing the work of accepting the results of the presidential election. Some of them gave fine speeches. The moment of danger had brought out a hint of heroism in them. But merely finishing the certification procedure is not enough. Nor will prosecuting individuals for their particular crimes address the fundamental constitutional issue, the blatant violation of the separation of powers.

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If the cabinet and vice president decided to remove the president temporarily from his duties through the 25th Amendment, they would protect us against some immediate dangers, but their action would do nothing to stand up for the integrity of Congress as a coequal branch of government. In fact, it would reinforce the notion that true power is concentrated only in the executive branch. Impeachment and conviction offer the only constitutionally appropriate response to the president’s encroachment on the legislative branch.

When James Madison described the checks and balances in Federalist No. 51, he wrote that “ambition must be made to counteract ambition” and that “the interest of the man must be connected with the constitutional rights of the place.” This means that members of Congress should feel that their personal interests and ambitions are intertwined with the power of the institution they occupy. They cannot allow the constitutional rights of Congress to be attacked with impunity without undermining their own reputations.

Members of Congress who support the Mr. Trump’s policies should nevertheless rebuff his attempt to diminish the power of their office. Members who said they wanted to satisfy popular sentiment questioning the election results by channeling it through a congressional commission should see that the president’s actions have made a mockery of their procedural efforts. Their place in history depends on whether they counteract the president’s ambition and resist the humiliation of Congress in the way the constitutional framers assumed any self-respecting legislator would.

Not so long ago, the Republican Party described itself as “the party of Lincoln” and flaunted its commitment to constitutionalism. Now, the question is whether enough Republican senators will do what is necessary to help the country step away from what Lincoln called the “mobocratic spirit,” which he identified as the greatest threat to our political institutions.

The whole country, indeed the world, is watching Congress to see whether it will allow this unprecedented attack incited by the president to go unpunished. If Congress does not utilize the constitutional means of defending itself and deterring future attacks, this moment will come to be regarded by historians as a decisive capitulation, not just to President Trump, but to a dangerous new mode of presidential action. The precedent that a president can stir up mobs to intimidate the other branches will be set, and even if it recedes into the background for a while, eventually that precedent will be followed. We will have taken a large step away from constitutional self-government.

Bryan Garsten is professor of political science and the humanities and chair of the Humanities Program at Yale University. He is the author of “Saving Persuasion: A Defense of Rhetoric and Judgment.”

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