Caleb Verbois: Trump, originalism and the purpose of impeachment

Donald Trump’s presidency had a powerful warping effect on American politics. The biggest example of this is the way that politically minded evangelicals moved, almost in lockstep, from a longstanding view that “character mattered,” to the belief that only “policy mattered,” to the conclusion that only “loyalty mattered.”

Trump similarly warped the media; witness the rapidity in which Fox News correspondents and talk radio show hosts abandoned their previously held positions, or at times, simply started reversing themselves, as Trump’s tweets demanded it. Or think back to how the mainstream press covered Trump as an entertaining oddity in the Republican primary: “It may not be good for America, but it’s damn good for CBS,” as CBS head Leslie Moonves said of his coverage of the Republican primary. The media’s fawning coverage of Trump during the Republican primary was abruptly reversed for the four years of his presidency to such an extreme that a substantial portion of the country felt justified ignoring the media’s coverage.

But until relatively recently, one area that has largely proved immune to this warping is the American court system and in particular, conservative originalist lawyers and judges. For proof of this, consider how many of Trump’s lawsuits (60-plus) over the election have been thrown out of court. Judges, including Trump’s own originalist appointees, have dismissed his claims of electoral fraud on the merits.

Now some originalist lawyers argue that Trump should not be impeached either because he did nothing wrong, or because impeachment can only be justified if the president commits a crime. Meanwhile, most Republicans in the Senate, theoretically originalists, are arguing Trump cannot be impeached because he has already left office.

Each of these claims is wrong.

The claim that Trump did not incite violence rests on a narrow reading of his comments at the Jan. 6 “Stop the Steal” rally. It is true that Trump did not tell his supporters to break into the Capitol, attack Capitol police with flags and fire extinguishers, chant “Hang Mike Pence,” or steal the podium from the floor of the House of Representatives.

But context matters.

For months before the election, Trump repeatedly claimed that the election was going to be stolen, and for three months after the election he claimed, without evidence, that the election had been stolen. In the weeks before the Jan. 6 rally, he continually told his supporters that together they could force the election results to be overturned. In a Georgia speech two days before the assault on the Capitol, Trump said, “We’re going to take what they did to us on Nov. 3. We’re going to take it back.”

Is it really a surprise that some of his most fervent supporters would take him seriously? Trump clearly believes that the insurrectionists who broke into the Capitol and waved Confederate flags are his supporters, because in his video message on the evening of Jan. 6, he said: “We love you. You’re very special,” and he tweeted at the end of the night, “Remember this day forever!”

I suspect that we will remember the day forever, but not for Trump’s reasons.

More importantly, impeachment does not depend on criminal evidence, and originalists cannot argue convincingly that it should. Impeachment is a political remedy for a political evil. The Constitution’s requirement that impeachment was for “high crimes and misdemeanors” was not created out of thin air. The clause does not refer to ordinary crimes. It has a long history in English common law that was very well known to the authors of the Constitution — in fact, even as the Founders convened in Philadelphia to form the Constitution, in London there was a famous impeachment trial over Warren Hasting, the governor-general of Bengal, who was charged with “high crimes and misdemeanors” for mismanagement and corruption.

In British law, high crimes and misdemeanors referred to abuse of authority — not ordinary political disagreement, but anything from bribery to subverting the Constitution. The constitutional delegates knew this. During the debate over impeachment, Virginia delegate George Mason specifically referred to Hasting’s behavior as an impeachable offense.

The question for the Senate in Trump’s second impeachment trial is not whether Trump’s words on Jan. 6 meet the legal definition of incitement. It is not whether Trump can be impeached after leaving office. Officials have been impeached in similar circumstances before. The question is whether repeatedly claiming an election has been stolen, and pressuring state officials, the vice president and Congress to overturn a democratic election is an abuse of office — a form of subverting the Constitution.

To put it another way, if Congress does not impeach Donald Trump for “incitement of insurrection,” what, exactly, would Joe Biden or a future president have to do to justify being impeached?

Caleb Verbois is a professor of American politics at Grove City College.