Censure, a formal condemnation, has only been successfully invoked against one president, Andrew Jackson in 1834. While admittedly symbolic, it is what is needed at this moment: an immediate bipartisan judgment that is strong, unequivocal, indelible and undeniable, a clear judgment that Trump’s conduct was a profound betrayal of both his duty and the basic legal rules of our democratic republic. Different courses of action toward this goal are available, but only censure holds any real chance of imminent success.
The 25th Amendment is a nonstarter, but not only because an invertebrate vice president and supine Cabinet will not initiate it. It is at least debatable whether Trump’s flagrantly illegal action constitutes the kind of disability at which the amendment is aimed. Woodrow Wilson’s incapacity due to a stroke preceded the 25th Amendment by five decades, but it is largely what the framers of that amendment had in mind, and they took pains to remove its initiation from the partisan political process. Any attempted application simply invites Trump enablers to protest that “bad as what he did, it doesn’t amount to constitutional grounds for removing him from office — that requires an ‘inability to discharge’ the duties of the president, and he can still do that.”
Criminal prosecution of Trump faces First Amendment hurdles. American political life is full of harsh and highly charged statements, including threats of all kind. Here, the actual words Trump used were ambiguous and could be read as political exhortations: “Be there, will be wild,” and “You have to show strength, and you have to be strong,” and “Never give up . . . never concede.” Even his most inflammatory statement, “We’re going to the Capitol. We’re going to try and give . . . [Republicans] the kind of pride and boldness that they need to take back our country” is not directly a call to illegal conduct.
The Supreme Court has held that speech can be criminalized when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action,” but this test is whether the prosecution can prove such conduct here beyond a reasonable doubt. The criminal process, moreover, is complicated, full of loopholes and certainly not fast. Moreover, how much political capital a new administration wants to devote to prosecuting a former president is unclear. Trump is also likely to attempt to pardon himself out of this danger, and though it’s not certain such a step will be effective, it throws a cloud over the process.
The process of impeachment, with which I have some familiarity, is likewise not an adequate remedy, in light of the time available and the punishment that could be imposed. What Trump did was treasonous, and it is certainly a paradigm “high crime and misdemeanor” — indeed, it’s hard to imagine a more fundamental one. But the framers of the Constitution rejected the parliamentary practice of imposing harsh penalties after legislative impeachment and provided that punishment for congressional impeachment “shall not extend further than to removal from Office,” without prejudice to later indictment.
Trump is mostly saved by the bell here, because even if the House quickly impeaches him, there’s scant time for the Senate to convict him, even if it were so inclined. (The requirement of a two-thirds vote might allow Trump to avoid ejection from office by the narrowest of margins, as Andrew Johnson did a century and a half ago.) An impeachment without any hope of a conviction cheapens that solemn process.
While it can be argued that an impeachment trial in the Senate can be conducted after Trump leaves office, since a conviction there could result in “disqualification to hold and enjoy” any federal office in the future, I’m aware of no precedent for such an action. Since 13 senators initially joined the effort to forestall Joe Biden’s election, I think it’s unlikely a Senate effort to impose disqualification would gain the support of the necessary 17 Republican senators to produce the requisite two-thirds majority for such a punishment. One can imagine instead the hand-wringing of those angling to gain the affection and support of Trump’s 74 million voters.
While not entirely satisfying, a strong bipartisan censure resolution is the most effective way of forging a speedy, clear and enduring public sanction against Trump’s conduct. It ought to be drafted to reflect the concerns already expressed by both parties about the incitement of the Capitol mob. It ought not try to encompass Trump’s many other mendacities, rights violations and grifts. Those are for history.
It ought to be a clear test of conscience for Republicans: Is there, at last, not some Trumpian conduct so incandescently undemocratic and un-American that you will condemn it? And if the answer to that question is “no,” there ought to be a clear legislative record of such cravenness.