President Trump’s incitement of the frightening assault on our Capitol, our Congress and our Constitution on Jan. 6 reveals some uncomfortable truths about our aspiration toward a “more perfect union.” First, white supremacy is undeniably a fundamental organizing principle of American policing. We do not yet know precisely how and why our seat of government received only token defense against an invasion by an armed, almost entirely white, Confederate flag waving mob, bent on mayhem. But the violent police responses to largely peaceful demonstrations against white racism after the murder of George Floyd leave no doubt that an angry march on the Capitol in support of Black lives would, by contrast, have been met with a show of overwhelming, deadly force.
Second, our credo of American exceptionalism is plainly hollow. Our presidential elections do not invariably end in a peaceful, consensual transfer of power. We are no more immune than the rest of the world to the threat of authoritarian ambition. We do not even know yet whether opponents of the current presidential transition have more violence planned between now and Jan. 20. Our Constitution itself may hang in the balance.
But even under siege, the Constitution offers tools which can help us through the present crisis. The shock and fear felt by many members of Congress when attacked by Trump’s mob may have loosened the death grip he has held over the Republican party. The second impeachment of President Trump by the House of Representatives may yield more than just a venting of outrage.
The Senate trial of this new impeachment will take place only after Trump’s term has ended. Still, that trial will not be redundant. If he is convicted, the Constitution authorizes the Senate to bar Trump permanently from public office, thus precluding him from running for president again in 2024. A lifetime ban from political power would mark a fitting rejoinder to Trump’s destructive presidency, one that may be welcome to Republicans senators who have belatedly come to rue his impact on their party. If there are 17 of these senators, the second impeachment of Trump, unlike the first, actually has a chance of convicting him. If not, we will at least know who among the newly chastened Republicans is actually serious about disavowing him.
Trump’s impeachment trial will also provide us a better forum for prosecuting his despicable incitement of violent rebellion against our constitutional order than will any criminal charges he may face. Trump’s reckless speech to his mob just before their attack on the Capitol may not violate the highly speech protective conditions imposed by the First Amendment for a successful criminal prosecution. But his urging of insurrection against the Constitution and his incessant lies about his election defeat are unquestionably high crimes and misdemeanors justifying his conviction by the Senate.
Trump’s Senate trial can also produce a thorough public vetting of the abject failure of law enforcement agencies to protect Congress from Trump’s mob. The Democratic Senate’s power to subpoena all pertinent witnesses and documents, now unfettered by immunity objections from a sitting president, should be used to uncover the extent to which that failure was either deliberate, the fruit of the poisonous tree of white racism, or both.
Removing Donald Trump from American political life will not end the malignant influence of Trumpism over his Congressional allies. At least two of them, Senators Hawley and Cruz, may even welcome Trump’s demise. Yale historian Timothy Snyder has observed that their craven leadership of Trump’s coup attempt on the election can serve their own 2024 Presidential ambitions only if Trump himself is out of the picture.
But the Constitution can also help to derail Hawley’s and Cruz’ opportunism. As Robert Meeropol pointed out in the Recorder, the 14th Amendment disqualifies any person from the Senate who, in violation of their oath to support the Constitution, has given aid and comfort to an insurrection against it. And Article I, Sec. 5, allows each House of Congress, upon a concurrence of two thirds, to expel any of its members. Hawley’s and Cruz’ efforts to overturn the election after the mob’s desecration of the Capitol provided that aid and comfort. And, again, 17 Republican senators prepared to reject Trumpism can bring their expulsion within reach.
Ours is a living Constitution. It works only when active citizens insist that it be used to seek justice. Congress has the constitutional tools to disqualify a criminal President from future office through impeachment and to expel members who foment insurrection against constitutional government. Using these tools effectively now will help preserve the Constitution from being undermined by the Jan. 6 assault against it.
Bruce Miller is a professor of law, Emeritus at Western New England University School of Law and a Northampton resident.