Trying to persuade Republican senators to convict former President Donald Trump in an impeachment trial is like trying to sell tickets for a trip on the Titanic after it sank. There is no more Titanic, and you wouldn’t want to be on it anyway. They can’t remove Trump from office now, and they wouldn’t if they could.
Even Republican senators who are still suffering panic attacks about the Capitol violence must wonder if there is any point to impeaching the president who lit a fire under the mob.
Why vote to evict a president who is already gone? Why spend precious time debating the misdeeds of someone whom the American people have disowned? Why give Trump more time and attention?
Last week, only five Republican senators voted to proceed with an impeachment trial. Given that at least 17 Republicans would have to vote for conviction, even holding a trial seems to be an exercise in futility.
There is a point to impeachment, of course. It doesn’t take much imagination to realize that the Jan. 6 insurrection, deadly as it was, could have been far worse. Vice President Mike Pence and members of Congress could have been injured or killed. Congress could have been prevented from carrying out its responsibility to certify the Electoral College results.
Trump not only spurred his followers to disrupt the proceedings but declined to call them off once they stormed the Capitol — even though his own vice president was in danger. He obviously hoped to deploy these extremists to keep himself in office, despite the judgment of mere voters.
If those are not “high crimes and misdemeanors,” what would be? Letting Trump go unpunished would encourage future presidents to emulate his criminal behavior.
Republicans have a point. So do Democrats. Fortunately, there is another option that would accomplish the most important purpose of convicting Trump — and would have a very good chance of success. As law professors Bruce Ackerman of Yale and Gerard Magliocca of Indiana University noted in the Washington Post, the 14th Amendment to the Constitution has a provision that fits our current needs.
It says that any “officer of the United States” who has “engaged in insurrection or rebellion” against the Constitution “or given aid or comfort to the enemies thereof” shall not be allowed to hold “any office, civil or military, under the United States.” Ratified after the Civil War, this section was meant to prevent former Confederate leaders from gaining positions of power in the government they waged war against.
But it would apply equally to anyone else who actively encourages a violent uprising, as Trump did. Senate Republican leader Mitch McConnell affirmed the obvious when he said: “The mob was fed lies. They were provoked by the president and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government, which they did not like.” That is sedition, plain and simple.
The main value of convicting Trump is that it would allow the Senate to take a separate vote to forbid him from running for president again. But under the 14th Amendment, Congress could impose a ban even without a conviction. As Ackerman and Magliocca explain, “Congress would simply need to declare that Trump engaged in an act of ‘insurrection or rebellion’ by encouraging the attack on the Capitol.”
This option has several advantages. First, it would take only a simple majority of both houses. Second, it would give Republicans a middle way between convicting Trump in an impeachment trial and impersonating potted plants. For members thinking of running for president in 2024, it would take him out of the race.
What’s in it for Democrats? Their chief purpose is making sure that Trump will never be president again. Using the 14th Amendment would be a reasonable alternative, particularly if it would attract a significant amount of Republican support.
It could be done quickly, freeing Democrats to move on to urgent policy matters, instead of delaying President Joe Biden’s agenda. And it could not be undone by a future Congress without a two-thirds vote of each house.
It would also affix a unique and permanent mark of infamy on the 45th president, which he has earned in full. If the 14th Amendment ban was good enough for Jefferson Davis, it’s good enough for Donald Trump.