I Testified at Trump's Last Impeachment. Impeach Him Again.


It’s perfectly logical to call for the immediate impeachment and removal of President Donald Trump for inciting a mob to storm the U.S. Capitol and interrupt the process of declaring Joe Biden president. Attempting to interfere with the democratic process counts as a high crime and misdemeanor under the Constitution.

But I would like to remind us all that the time to remove Trump was a year ago, when he actually was impeached — precisely for attempting to corrupt the 2020 election. What Trump did on January 6, 2021, was no more impeachable than what he did on July 25, 2019, when he phoned Ukraine’s Volodymyr Zelensky and asked him to discredit Biden.

Which distortion of democracy is worse? Trying to steal an election secretly, in advance, or publicly inciting the interruption of a largely ceremonial process after the fact? The former could have changed the outcome of the 2020 vote. The latter had essentially zero chance of blocking Biden’s ascent.

The Ukraine call was a serious and corrupt effort to misuse the office of the presidency to retain power. It was election cheating, no more and no less. Trump’s highly public post-election conduct, including yesterday’s incitement, has been repugnant and damaging, but it has not been a realistic plan to abuse the presidency to remain in power.

Watching the news yesterday, I was reminded of the phrase often used by artist Jenny Holzer: “Abuse of power comes as no surprise.” What Trump did on January 6 was part of a totalizing course of abuse of power that went back at least a year and a half to the conduct for which he was impeached by the House of Representatives — and, scandalously, not convicted by the Senate. The Ukraine call was an abuse of the power of the presidency. So was the incitement.

Trump was never prepared to lose a free and fair election, not to Biden, and not to anyone. His plan, however, was not to flail his way through a series of increasingly pathetic post-election efforts to delegitimize the vote. His plan was to win by secret corruption and chicanery — then to laud the democratic process that would have elected him in apparent legitimacy.

Back in the summer of 2019, Covid-19 wasn’t yet on the horizon. The economy was going strong. Trump had a reasonable prospect of beating whatever Democratic candidate emerged from the primary process. Just about the only Democrat who worried Trump’s camp was Biden, who at the time wasn’t close to the top of the large Democratic field of challengers.

But Trump didn’t want to take a chance on a fair fight with Biden. That was why he pressured Zelensky to announce corruption investigations into Biden and his son Hunter. Only when the July 25 call became public — after efforts to suppress it — did Trump claim that the call was “perfect.” His intent from the start was to keep secret his attempts to distort the 2020 election and keep himself in office.

His defense — that the call was business as usual and not a high crime and misdemeanor — was promoted outrageously by Republican members of the House and Senate. But that argument was always a fall-back, post-hoc attempt to justify the crime of interfering with the electoral process.

If Trump had succeeded secretly in bringing down Joe Biden back in 2019 by means of the Ukraine corruption charges, as he tried to, it seems entirely possible that he’d have won the 2020 election, Covid or no Covid.

It’s no coincidence that so many members of Congress who justified Trump’s conduct then are the ones endorsing his post-election lies now. In both instances, these allies have been willing to enable the president’s efforts to corrupt the democratic process.

Trump’s 2019 conduct merited impeachment and removal because of the basic threat it posed to the integrity of the 2020 election. That’s what the articles of impeachment passed by the House said, and it’s what I and other witnesses testified before the House.

Interfering after the fact is also an attempt by Trump to corrupt the 2020 election. It also counts as a high crime and misdemeanor and merits impeachment and removal. It doesn’t matter that Trump did it in public. It doesn’t matter that Trump and the mob had little or no realistic chance of blocking Biden from becoming president.

It does matter, constitutionally and historically, that we had every reason to know this was coming. It does matter that Trump actually was impeached. And it matters that the Senate did not remove him — because that “judgment” invited precisely what we saw yesterday: the president inciting his supporters to violently invade the U.S. Capitol.

History will remember these events as intimately connected. It should hold to account the Republican senators who voted not to remove Trump at his trial — and then professed to be shocked when he once again sought to corrupt election results, this time in the public eye.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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