We must fix our impeachment process

During former President Trump’s first impeachment, which accused him of withholding military aid to coerce the Ukrainian president to forward Trump’s political ends, law professor Michael Gerhardt testified, “If what we are talking about is not impeachable, nothing is impeachable.” With Trump’s acquittal in his second impeachment trial, involving lies about a fraudulent election and the Jan. 6 riots at the Capitol, we now know the professor was correct. Nothing, apparently, is impeachable — at least as our Constitution and laws currently exist.   

Impeachment and conviction is the process whereby our public officials should be held politically responsible for abuse of office or the public trust, and removed from office if still in office and, importantly, barred from holding office again. This is different from criminal accountability, which involves the loss of freedom (jail) and often the imposition of financial penalties (fines), and requires proof beyond a reasonable doubt, a judicial or unanimous jury verdict and other legal requirements. Moreover, a person convicted of a crime is not prevented from becoming president.

Impeachment and conviction, as a viable process, is critical for good government — and good government matters greatly. In general, or at least all too often, people perform up to the level that is tolerated, rather than up to the ideals we strive for.  If we, as a country, tolerate officials who abuse power or violate the public trust, that is exactly what we will get. Our citizenry, our country, ultimately will suffer. Impeachment and conviction must have teeth.   

The big losers from the Trump impeachment experiences are the American people. We have effectively neutered the impeachment clause and created a government whereby public officials, and certainly the president, have little to fear from impeachment. We must amend our Constitution and change our laws in the following respects.           

First, taking Sen. Mitch McConnell (R-Ky.) at his word, he strongly believes that Trump committed impeachable offenses but he voted to acquit because he believes the Constitution only permits impeachment and conviction of current officeholders. By their vote on the constitutionality issue before the trial, most other Republican senators ostensibly agreed.  Whether that was our Framers’ intent or not, the Constitution should be amended to make clear that a person who is impeached by the House while in office, as Trump was, shall be tried in the Senate on the merits of the indictment even if that person no longer holds office. This will help hold presidents accountable to the end of their terms.

Second, other than Trump’s lawyers, hardly anyone argued that his conduct did not rise to the level of impeachable offenses. But senators need political cover to do the right thing. Sen. Bill Cassidy (R-La.) was censured by the Louisiana Republican Party almost immediately after indicating that he would vote to convict Trump. Certainly, a significant factor for most other Republican senators was fear of the political repercussions of such a vote. The Constitution should be amended to provide that such votes in the Senate shall be by secret ballot. It is possible that the outcome of Trump’s trial might have been different if the vote were secret.

Third, the Constitution provides that impeachment shall occur in the event of “treason, bribery, or other high crimes or misdemeanors.” While some constitutional scholars argue that this language encompasses more than formal crimes, others disagree. That issue was critical during Trump’s first impeachment, and in the second, House managers attempted to prove that Trump incited an insurrection. The defense argued they had not met the criminal legal standard, claiming that Trump’s words at his Jan. 6 rally in Washington did not directly cause the resulting riots. 

Yet, Trump committed three acts for which he should have been impeached, even if none was a formal crime. First was “the Big Lie.” Thousands of Americans have fought and died for our sacred right to freely elect our leaders. For a political leader, much less the president, to perpetrate a lie that an election was fraudulent, and cause millions of people to lose faith in our electoral process, is anathematic to the foundation of our country. That alone should be impeachable, even though it arguably violates no current criminal law.  

The second act was inciting the insurrection. Regardless of whether Trump’s words meet the criminal standard, as McConnell said, he is “practically and morally” responsible for what happened. Any president or official who engages in conduct and words that prompt others to resort to violence should have no place in our government — ever.  

Finally, after learning of the Capitol breach, Trump initially resisted calling in the National Guard to help protect those working at the Capitol during the constitutionally mandated process of certifying the election. That, in itself, likely was not a criminal act, but must be an impeachable act. The Constitution should be amended to make clear that “high crimes and misdemeanors” includes more than formal criminal acts.   

Finally, we know from Trump’s first impeachment proceeding that a president can withhold documents and prevent witnesses from testifying under the claim of executive privilege. His administration used the argument of a lack of sufficient evidence and witnesses as a basis for acquittal in the first impeachment, and Trump’s lawyers made similar arguments in his second impeachment trial. Currently, for Congress to overcome such claims, it must litigate a president’s refusal to release documents and witnesses in the courts, a process that can take years. Justice delayed is justice denied. 

But Congress has the right to change that process. It can pass a law providing that the legitimacy of congressional subpoenas, at least in an impeachment inquiry, shall be decided on an expedited basis in the courts so that all such issues — including appeals — are resolved in a month or even weeks, rather than years.  

Some may argue that such changes would make impeachment too easy. But it would still take a two-thirds vote in the Senate to convict, and it is unlikely any major political party will have such an overwhelming majority for the foreseeable future. Moreover, with the insurrection at the Capitol and the gross affront to the legitimacy of our elections by the former president, the danger that our country faces is not too easy of an impeachment but too difficult of one. 

Gary A. Garfield is the retired chairman, president and CEO of Bridgestone Americas Inc. He practiced law for 29 years and was the general counsel and chief compliance officer before leading the company.