But Trump did not commit a federal crime. He did not call for violence, he did not specifically know that violence would result, and it was not clear at the time of his speech that the mob would use force to attack the Capitol. Trump spoke recklessly, but not criminally, at least not as defined by the Supreme Court in important First Amendment cases. But as James Phillips and I show in a forthcoming article in the Southern California Law Review, the Founders did not believe that impeachment requires a criminal act. Although the Constitution sets the grounds for impeachment as treason, bribery, “or other high Crimes and Misdemeanors,” its drafters and ratifiers would have understood that phrase to include serious abuses of power, dereliction of duty, or failure. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”
Even though Trump’s encouragement of opposition to the electoral count and his delay in protecting Congress qualify as impeachable offenses, Republican senators should consider voting for acquittal not to protect Trump, but future presidents. There are several reasons to support this action. First, the Founders believed that impeachment should remain an extraordinary and rare measure for only the most severe cases of presidential misconduct. They defined the grounds for impeachment so high, and then set the standard for conviction even higher at two-thirds of the Senate, because they did not want Congress using a power of removal to control the president and eventually erode the executive’s independence. Senators should cast a suspicious eye on a House impeachment process that took only two days — even the House’s 2019 impeachment of the president followed months of investigations, hearings, and debate. If the Senate blesses a second impeachment in two years, which takes only days to draft and report, it will only encourage future Houses to launch abbreviated proceedings that could easily seek to subordinate future presidents. While the Constitution has many ambiguities, on one thing it is clear: The Framers wanted an energetic executive independent of Congress, which is why they placed his election in the states and made his removal difficult. Even though Trump has inflicted an unprecedented disruption on the political system, pursuing impeachment further could make matters worse by turning the extraordinary of impeachment into the everyday.