The Washington Post

Why Congress should censure, not impeach, Trump

- BY DAVID E. KENDALL The writer, a lawyer at Williams & Connolly, has represente­d former president Bill Clinton and 2016 Democratic presidenti­al nominee Hillary Clinton.

Given the shortness of time before President Trump is out of office, congressio­nal censure is the best way to stigmatize the soon-to-be former president for his despicable actions in fomenting a mob attack on Congress at the very moment legislator­s were carrying out their constituti­onal duties to certify the will of American voters.

Censure, a formal congressio­nal condemnati­on, has been successful­ly invoked against sitting presidents. While admittedly symbolic, it is what is needed at this moment: an immediate bipartisan judgment that is strong, unequivoca­l, indelible and undeniable, a clear judgment that Trump’s conduct was a profound betrayal of both his duty and the basic legal rules of our democratic republic. Different courses of action toward this goal are available, but only censure holds any real chance of imminent success.

The 25th Amendment is a nonstarter, but not only because an invertebra­te vice president and supine Cabinet will not initiate it. It is at least debatable whether Trump’s flagrantly illegal action constitute­s the kind of disability at which the amendment is aimed. Woodrow Wilson’s incapacity due to a stroke preceded the 25th Amendment by five decades, but it is largely what the framers of that amendment had in mind, and they took pains to remove its initiation from the partisan political process. Any attempted applicatio­n simply invites Trump enablers to protest that “bad as what he did, it doesn’t amount to constituti­onal grounds for removing him from office — that requires an ‘inability to discharge’ the duties of the president, and he can still do that.”

Criminal prosecutio­n of Trump faces First Amendment hurdles. American political life is full of harsh and highly charged statements, including threats of all kind. Here, the actual words Trump used were ambiguous and could be read as political exhortatio­ns: “Be there, will be wild,” and “You have to show strength, and you have to be strong,” and “Never give up . . . never concede.” Even his most inflammato­ry statement, “We’re going to the Capitol. We’re going to try and give . . . [Republican­s] the kind of pride and boldness that they need to take back our country” is not directly a call to illegal conduct.

The Supreme Court has held that speech can be criminaliz­ed when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action,” but this test is whether the prosecutio­n can prove such conduct here beyond a reasonable doubt. The criminal process, moreover, is complicate­d, full of loopholes and certainly not fast. Moreover, how much political capital a new administra­tion wants to devote to prosecutin­g a former president is unclear. Trump is also likely to attempt to pardon himself out of this danger, and though it’s not certain such a step will be effective, it throws a cloud over the process.

The process of impeachmen­t, with which I have some familiarit­y, is likewise not an adequate remedy, in light of the time available and the punishment that could be imposed. What Trump did was treasonous, and it is certainly a paradigm “high crime and misdemeano­r” — indeed, it’s hard to imagine a more fundamenta­l one. But the framers of the Constituti­on rejected the parliament­ary practice of imposing harsh penalties after legislativ­e impeachmen­t and provided that punishment for congressio­nal impeachmen­t “shall not extend further than to removal from Office,” without prejudice to later indictment.

Trump is mostly saved by the bell here, because even if the House quickly impeaches him, there’s scant time for the Senate to convict him, even if it were so inclined. (The requiremen­t of a two-thirds vote might allow Trump to avoid ejection from office by the narrowest of margins, as Andrew Johnson did a century and a half ago.) An impeachmen­t without any hope of a conviction cheapens that solemn process.

While it can be argued that an impeachmen­t trial in the Senate can be conducted after Trump leaves office, since a conviction there could result in “disqualifi­cation to hold and enjoy” any federal office in the future, I’m aware of no precedent for such an action. Since 13 senators initially joined the effort to forestall Joe Biden’s election, I think it’s unlikely a Senate effort to impose disqualifi­cation would gain the support of the necessary 17 Republican senators to produce the requisite two-thirds majority for such a punishment. One can imagine instead the hand-wringing of those angling to gain the affection and support of Trump’s 74 million voters.

While not entirely satisfying, a strong bipartisan censure resolution is the most effective way of forging a speedy, clear and enduring public sanction against Trump’s conduct. It ought to be drafted to reflect the concerns already expressed by both parties about the incitement of the Capitol mob. It ought not try to encompass Trump’s many other mendacitie­s, rights violations and grifts. Those are for history.

It ought to be a clear test of conscience for Republican­s: Is there, at last, not some Trumpian conduct so incandesce­ntly undemocrat­ic and unAmerican that you will condemn it? And if the answer to that question is “no,” there ought to be a clear legislativ­e record of such cravenness.

 ?? ASTRID RIECKEN FOR THE Washington Post ?? The U.S. Capitol dome is seen Saturday through a fence where roses were left.
ASTRID RIECKEN FOR THE Washington Post The U.S. Capitol dome is seen Saturday through a fence where roses were left.

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