Prominent conservative lawyer Michael Stokes Paulsen, a leading academic expert on impeachment, hardly agrees with famous liberal Harvard law professor Laurence Tribe on a few points. Impeachment is just one of many constitutional issues where there are major differences. In 2018, Paulsen published an article in the Harvard Law Review in which he heavily criticized the book about the impeachment of Tribe co-authored with Joshua Matz (Tribe and Matz responded here). But Paulsen, Tribe and Matz all agree when it comes to advocating a quick second impeachment trial for Donald Trump.
Here is Paulsen in an article published in The Dispatch yesterday:
President Trump should be charged and removed from office immediately.
He has undoubtedly committed acts that constitute “high crimes and misdemeanors” within the meaning of the constitutional impeachment standard. He has tried to stay in office despite his re-election defeat by attempting to undermine the results of a number of popular democratic state elections – a terrible attack on our constitutional republican government…. During an hour-long phone call last Saturday, he essentially threatened and intimidated electoral officials in Georgia so that they could “find” – produce – enough votes to overthrow the official, verified count of a free and fair man corruptly conducted elections … .
Trump instigated a mob to march on the Capitol and disrupt the official counting of votes for his opponent by Congress. His remarks and tweets can be understood as efforts to incite impending lawlessness, rioting and violence – including attacks against his own Vice President …
If Trump’s wrongdoing is not indictable, nothing is. Unless that is the legal and moral reason for exercising the power to indict, convict, remove, and expel a president, then there is never such an occasion.
Constitutionally, Trump can be indicted, tried, convicted and removed within a day or even a few hours – literally overnight …
What’s the point Won’t Trump be gone in two weeks?
The point is upholding the constitution. The point is to maintain constitutional government. It is about the decisive and emphatic rejection of a leader or pretender who would try to usurp power and overthrow the democratic and constitutional processes of free government.
It is also about preventing such a potential usurper from ever becoming president again. The Constitution states that “the judgment of impeachment shall go no further than impeachment and disqualification from holding and enjoying an office of honor, confidence, or gain in the United States …” A failure to To indict and convict President Trump means he could run again in 2024, raising the specter of a former president waiting in the wings trying to spark more riots.
Tribe and Matz make similar points in a comment published the same day in the Washington Post:
As the House of Representatives takes the extraordinary step of considering a second impeachment of President Trump during his final term in office, two questions arise: Has Trump committed any criminal offense? And does it make sense to bring charges, although the Senate may not try to convict him before he leaves office on January 20th? The answer to both questions is yes.
Trump spent months unsubstantiatedly convincing his supporters that they were the victims of massive election fraud. He called them to DC for a “wild” protest when Congress met to approve the election results. Then he whipped them into a frenzy and aimed the angry horde directly at the Capitol. When Trump’s mob broke through the building, he inexcusably dawdled to use violence to quell the uprising. And when he finally released a video statement, it only made matters worse …
The impeachment article distributed on Friday by Democratic Representatives David N. Cicilline (RI), Jamie B. Raskin, Md., And Ted Lieu (California) accurately captures the gravity of Trump’s wrongdoing. It aligns its actions with its “previous efforts to undermine and hinder the certification of the results of the 2020 presidential election”. And it recognizes the terrible damage Trump has done to the nation as a whole by his instigation …
That’s true even though Trump will be stepping down in just 12 days. The constitution gives the House “sole power to impeach” and the Senate “sole power to attempt any impeachment”. There is good reason why the House and Senate have traditionally exercised these powers with considerable diligence, deliberation and process.
However, the Constitution does not require slow motion in a time of crisis, especially when the nation has witnessed a criminal act in real time. Here it would be a silly undertaking to hold lengthy hearings, much like playing a sonata on the decks of the Titanic. The house can and should trade shipping.
I should add that due process concerns are mitigated by the fact that impeachment and deportation do not require the same level of due process as a criminal or even civil proceeding that threatens to deprive the defendant of basic human rights to life, to freedom or to property. I expanded this point in a piece written at the time of Trump’s first impeachment trial:
In criminal matters, there are good reasons to avoid conviction unless the charge against the accused is an offense clearly established by law and the guilt has been clearly established. The reason is that the accused will lose her freedom or property – or even her life. In contrast, the risk for an accused president is to remove himself from a position of enormous power [and being barred from holding such a position in the future].
Unlike unjustified deprivation of life, liberty, or property, removal from power does not violate anyone’s human rights. When real human rights are at stake, it can make sense to allow ten guilty people to be released to save even one innocent person from conviction. When it comes to positions of power, almost the opposite is true: removing ten “normal” politicians is more than justified if that is the only way to get rid of someone who is seriously abusing power.
In a case where the facts are clear and indisputable, like this one, it doesn’t have to be more than a day or two for the House to debate and vote on impeachment and for the Senate to go through a process in which both sides have ample time have (maybe several hours at a time) to present arguments and evidence. That may not be enough to send a man to jail. But it should be enough to remove him from a position of power.
After all, it is important to take decisive action against Trump in order to deter future presidents from similar misconduct. Too many times in the last century we have allowed presidents to get away with serious violations of the Constitution and horrific abuses of power without having much impact. I’ve given a few examples here:
Too many past presidents have gotten away with horrific illegality and abuse of power, such as the internment of Japanese-Americans by FDR in concentration camps, Woodrow Wilson’s massive violations of civil liberties, and – most recently – Obama’s start of two wars without congressional approval and Trump’s cruel guidelines on how to do so Separation of families and the ban on travel …
That story – including his previous impunity – may have encouraged Trump to think that he could get away with what he wanted. And if we continue impunity, it could easily encourage future presidents, some of whom may be less incapable than Trump in their efforts to undermine liberal democracy.