The opportunity to hold Trump to account for the frontal attack he mounted on American democracy, drunk, as he were, on the powers conferred by the same democracy, through the same democratic process that he chose to attempt tearing down was squandered by the Senate in partisan quibbles. American democracy might have survived Trump and Trumpism, but it came out battered and bruised.
Donald Trump is the only American president to be impeached twice by the House, and also the only one to be let off by the Senate — twice. And on both occasions, the charges were severe enough to warrant throwing the president out of the office without delay. But that’s where the similarity ends. The two charges, although similar in gravity, were materially different in nature, content, and scope because while “abuse of power” and “obstruction of Congress” are serious enough charges, and every bit as impeachable as any other, “incitement of insurrection” falls in an altogether different class of offenses.
The second time, Trump was charged with an attack on America’s democracy itself, and its time-honored democratic institutions. Trump was found to have attacked the very foundations of American democracy and to have practically attempted a violent takeover — a coup détat. That’s what dictators and tyrants do around the world to hold on to lost power but one wouldn’t expect such an attempt of a sitting US President, not even of Trump. But Trump had another unpleasant surprise up his sleeve. And yet, the Senate failed to impeach him.
The Senatorial Hypocrisy
Senate Minority Leader Mitch McConnell said, “There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day. No question about it. The people who stormed this building believed they were acting on the wishes and instructions of their president,” adding, “The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.”
There could be no surer indictment of the President by anybody, and there could also be no greater double-dealing, for the same man voted to let Trump off the hook on the synthetic ground that he was “constitutionally not eligible for conviction”. It was the same man who did not go ahead with the impeachment proceedings while Trump was in office because he supposedly believed there was not enough time for due process, and who also seemed perfectly willing to impeach Trump in a Senate trial. And then came the volte-face. What McConnell was effectively saying was that while Trump had definitely provoked the attempted takeover of the US Capitol on January 6, 2021, and was guilty of inciting an insurrection, it didn’t matter because Trump was no longer the president.
Watch: McConnell’s remarks after Senate Impeachment Vote
McConnell could be partially right only in the sense that removal from public office was not possible for someone who was not holding a public office, but Trump could very well be “convicted” for the wrongs he had committed against American democracy, and so he was certainly “eligible for conviction”. Even if removal from the office was not possible, it was still possible to convict Trump and bar him from ever holding public office under Section 3 of the 14th Amendment for having “engaged in insurrection”, which would have required a simple majority as opposed to the two-third majority in both the houses required for impeachment. Under the provision, the disqualification could be reversed by “a vote of two-thirds of each House”. So Trump’s conviction both possible as well as not entirely unavailing, had the Senate taken upon itself to punish the insurrectionist for the misdeed. But that wasn’t to be.
Failure of the US Democratic Process
Legal opinion on whether or not Trump could be convicted and disqualified from holding public office for fomenting insurrection might be divided, but there is nothing in the law that prevents a former president from being held accountable under the civil as well as criminal law for the acts done while he or she held office. And on that front, the wheels have already been set in motion with the Georgia prosecutors opening a criminal investigation into Trump’s “attempt to influence” the Georgia election just as Trump’s questionable business practices in New York come under investigation. In addition, Washington’s attorney general is also said to be considering bringing charges against Trump for inciting violence, a punishable offense in the District of Columbia. And then, there are a number of other instances in which Trump appeared to be criminally liable while in office, which the Justice Department can look into though it might refrain from doing it so as to not look politically motivated.
But none of it changes the fact that Trump is answerable for the crime of hitting at the very foundations of American democracy. And the fact that democratic institutions such as the House and the Senate should have held him to account for it. Even if Trump is convicted and punished by the courts under the criminal law, he will have been punished by the judicial arm of the state for criminal acts. That’s between the state and the offender, and the state might be able to successfully make him answer for it. But has the democracy been able to hold Trump to account for the frontal attack he mounted on American democracy itself, drunk, as he were, on the powers conferred by the same democracy through the same democratic process that he chose to attempt tearing down? The opportunity to do that and to reclaim democracy was squandered by the Senate in partisan quibbles. It’s hard not to note that in many significant ways, Trumpism won, and although American democracy managed to survive Trump and Trumpism, it came out battered and bruised.