Saving the Constitution isn't unconstitutional
Why the GOP's argument against punishing Donald Trump doesn't stand up
If we're to believe Sen. Rand Paul, a proper reading of the Constitution means that former President Donald Trump cannot be punished for trying to usurp the Constitution.
That is the crux of the argument the Kentucky Republican made in his attempt this week to persuade the Senate that it should not conduct a trial on the article of impeachment against Trump. The former president is now a former president, Paul said, and thus beyond the Senate's power to punish him for inciting the Capitol insurrection earlier this month. An impeachment trial, Paul said, "would try a private citizen and not a president, a vice president, or civil officer," he said, and that "violates the Constitution and is not in order."
Democrats — along with a small band of Republicans — defeated Paul's effort. But enough GOP senators joined the movement to stop the trial before it begins that Trump's acquittal is all but assured. The party of "law and order" has decided that the former president should get off on a technicality.
Many, if not most, legal scholars disagree with Paul's interpretation. And there is every reason to think that anti-impeachment Republicans are guilty of motivated reasoning — not wanting to cross Trump and possibly end their own political futures. But let's take them seriously for a moment. The GOP's argument suggests that the Constitution must inevitably contain the seeds of its own demise.
Remember, the Capitol riot was intended to disrupt Congress' Jan. 6 certification of President Biden's electoral victory — and to intimidate then-Vice President Mike Pence into essentially voiding the electoral votes of swing states that went against Trump. The crowd that burst into the halls of Congress had been primed for two months by Trump's lies that the election had been stolen. They were sent there by the president himself at his "Stop the Steal" rally that day. They roamed free while the president reportedly ignored efforts to send reinforcements for Capitol Police.
Congress was carrying out one of its most important Constitutional duties. Trump tried to stop it. His fans used violence to try to accomplish his goal. Thankfully, the effort failed. Does the nation's founding document really require us to ignore all that because Trump fell short at the polls and unwillingly left office on time?
No. And we know this because of an incident from the Republican Party's earliest days.
During the Civil War, President Abraham Lincoln — fearing that a rebellion would spring out of Maryland to threaten Washington, D.C. — ordered the suspension of habeas corpus near railroad lines between Philadelphia and the capital city. Supreme Court Justice Roger Taney believed that was wrong, and that the Constitution allowed such suspensions only by act of Congress.
Lincoln disagreed, citing the plain language of the Constitution itself. But he more fundamentally disagreed with the notion that abiding by the Constitution meant allowing it to be destroyed.
"Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?" he asked. "Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?"
The question hovering over the entire Civil War, he said, was this: "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”
Congress ultimately ratified Lincoln's decision. And Lincoln ended up both saving the Union and ending slavery.
The attack on the Capitol was the greatest, most dangerous act of insurrection since the Civil War. Again, there is every reason to believe that an impeachment trial of Trump is constitutional — there is certainly nothing in the document's text that prohibits the impeachment of ex-officials, and at least one precedent for doing so. But Lincoln's precedent suggests that where there is confusion or haziness on the matter, American leaders should act vigorously to defend the Constitution. In 2021, that would mean convicting Trump on the impeachment charge of inciting a riot, and prohibiting him from ever running for office again.
By passing on an impeachment conviction, Senate Republicans abandon justice for the 140 Capitol Police officers who were injured, some badly, defending the lives and work of those same senators. They ignore the five people who died because of the riots. And ultimately, they betray their oaths. Convicting Trump almost certainly does not violate the Constitution — but it does, as Lincoln said, tend to preserve it.