As we wait for the impeachment of the President for a second time, I wanted to share what I considered to be the better path not taken by the House. We had an opportunity to speak with one voice in a bicameral, bipartisan resolution. That moment will soon pass.
Here is my column in the Hill:
Congress is poised to prove Abraham Maslow’s “Law of the Hammer.”
The American psychologist articulated a “law of the instrument,” which held that “if the only tool you have is a hammer,” then you tend “to treat everything as if it were a nail.” Similarly, if impeachment is your only tool, then every problem is treated as an impeachable offense.
Over the last four years, Democrats have called for the impeachment of President Trump for acts ranging from his criticism of NFL kneelers to his inflammatory tweets. After previously impeaching him, they now are pushing through a dangerous “snap” impeachment — an impeachment that effectively would go to a vote without the deliberation or inquiries of a traditional hearing.
There is another tool that could avoid creating the harmful precedent of a snap impeachment. It is called censure.
Democratic leaders are actually wielding two hammers with the addition of the 25th Amendment. House Speaker Nancy Pelosi (D-Calif.) said she would prefer to see Trump removed under that amendment, but she also issued an ultimatum: Declare Trump incompetent under it, or she would seek his impeachment. The 25th Amendment, however, concerns physical or mental incapacity; it is not interchangeable with impeachment, which addresses a different problem with a vastly different standard. Thus, the sole focus of Democrats seems to be on the remedy, not on the basis for these actions.
Both “hammers” would do more harm than good. By ignoring traditional impeachment standards, the use of these provisions would create a type of “no confidence” vote used to remove prime ministers in the United Kingdom. Moreover, a snap impeachment based on Trump’s speech would allow any president to be removed for using language deemed inflammatory to violent third parties. In his speech to a massive rally on Jan. 6, Trump did not call for violence; rather, he called on his supporters to go “peacefully” to Capitol Hill to show support for senators backing an electoral-vote challenge and opposition to those who opposed it. Such protests are common in capitals, from statehouses to Congress, during legislative sessions.
Pelosi admits that the current interest in impeachment is to bar Trump from running for the presidency in 2024. Yet, such a move would further inflame the political divisions in our country. Trump’s future should be left to history and the voters to decide — not canceled by congressional fiat.
Many of us have denounced Trump’s speech as reckless and wrong. Indeed, I was tweeting my objections to the speech as it was being given. Moreover, I opposed the congressional challenges to the electoral votes from the outset, rejected Trump’s claim that the electoral votes could be “sent back,” and praised Vice President Pence for defying Trump. Yet, none of this is license for Congress to rampage through the Constitution with the same abandon as last week’s rioters did in the Capitol.
I testified against the first Trump impeachment — and I stand by that testimony today. I believe, however, that he warrants congressional condemnation, and that a censure resolution could help repair some of the damage that he has caused in this national tragedy.
Such a joint statement of condemnation by the two houses could be based on three grounds.
First, Trump — as well as his son, Donald Jr., and his lawyer, Rudy Giuliani — whipped the Jan. 6 crowd into a frenzy before the rioting in the Capitol. While Trump’s speech would not constitute criminal incitement, it was inciteful and unpresidential. Before that, on Twitter, he called thousands to the city for a “wild time,” and then worked some into a frothing mob.
Second, Trump repeated clearly false statements about the constitutional process and made the unconscionable demand that Pence should usurp that process by “sending back” electoral votes. As many of us said repeatedly for weeks, Pence had no such authority and could not unilaterally act as Trump demanded. Yet, Trump continued to tell his followers that such authority existed — leading many of them to launch a hashtag campaign to “#hangmikepence.”
Third, Trump was conspicuously silent as this riot engulfed the Congress. It was not until the next day that he clearly denounced all of the violence and called for the prosecution of those responsible. On the day in question, he gave a widely ridiculed statement thanking his supporters and saying he understood their anger. It may not have been criminal incitement — but it was an outrageous failure to denounce the violence, immediately and unequivocally.
Censure is not a substitute for impeachment. It is not even mentioned in the Constitution. However, it would serve a greater purpose in this instance: It would allow both parties to speak as one in condemnation of the actions — and the omissions — of the president. It would be a unifying act that allows us to state our expectations of a president, a statement made all the more important with the approaching inauguration of a new president.
Indeed, this is where President-elect Biden can prove he is a unifying leader. He should call on his party to stand down and join in a bipartisan censure resolution. In doing so, he would pass the very test that Trump failed on Jan. 6. Rather than seek to use this moment for political advantage, Biden could use it to help heal these divisions by getting a majority to speak as one voice. It is an opportunity he should not allow to pass.
What happened on Jan. 6 was a crisis of faith. As a nation, we are losing faith not just in the Constitution but in each other. We need leadership — real leaders to step forward and say “enough” to the reckless rhetoric of the president, to the reckless response of his critics of rushing to impeach, and to the politics of division. It is time we speak with one voice. It is time to censure the president.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.