Impeachment Is Working—Just Not as the Framers Expected

The case against despair

Impeachment managers walk to the Senate.
Salwan Georges / The Washington Post / Getty

Updated at 2:30 p.m. ET on February 8, 2021.

In 2020, President Donald Trump withheld military aid from Ukraine to blackmail its president into fabricating dirt on Joe Biden. The House of Representatives impeached Trump for this act. The Senate acquitted him.

In 2021, Trump incited a mob of his supporters to attack the Congress, in hopes of overturning his defeat in the presidential election. This act of incitement immediately followed Trump’s attempts to mobilize election officials in Republican states to find votes to reverse in his favor the certified election outcome.

The House of Representatives impeached Trump for this act, too. The Senate seems certain to acquit him again.

This pattern has pushed some to despair. Trump repeatedly committed impeachable offenses. The senators of Trump’s party repeatedly protected him. Does the impeachment remedy even function any more? What can be achieved by undertaking this second trial after the first? Is it not already confirmed that partisanship counts for everything, and constitutional accountability for nothing?

Here’s the case against despair.

The impeachment remedy is not dead. It remains extraordinarily powerful—just in ways different from those imagined by the authors of the Constitution.

There have been four presidential-impeachment processes since 1787. None has resulted in removal, but all four had seismic political consequences.

Andrew Johnson was not removed in 1868, but he was not renominated, either, and failed to gain the second term he so wanted.

Richard Nixon was not removed in 1974; he resigned amid an immense scandal.

Bill Clinton was not removed in 1998. Instead, Clinton’s became the first administration since Reconstruction to gain congressional seats in the sixth year of its term. His chief opponent, House Speaker Newt Gingrich, resigned instead, as did Gingrich’s presumptive successor, Bob Livingston, who confessed to an extramarital affair of his own.*

Donald Trump was not removed in 2020, but he lost the presidency, and his party lost control of the Senate.

Impeachments were designed as ways to remove corrupt federal officials. That function has mostly gone dormant, replaced by the operations of federal public-integrity law, enforced by the Department of Justice. Each month, DOJ announces actions in some two dozen cases. Recent announcements include the conviction of a former mayor in the federal territory of Guam on extortion changes and a former border officer on bribery charges.

But what impeachment can do in the modern era is send a powerful signal to the public about the gravity of certain cases. When the House impeaches, it declares: We believe we have exited normal politics; we believe we are dealing with a true emergency.

It elevates the president’s alleged abuse over all other congressional business. Impeachment empowers the House to force an issue onto the agenda of the slower-moving Senate. Impeachment changes the calendar of politics. Impeachment concentrates and clarifies issues. Impeachment compels senators to take a public stand one way or the other: convict or acquit.

Because impeachment is such an extraordinary act, it is also profoundly risky to its proponents. If done wrong, it will redound upon the impeachers, as Clinton’s impeachment redounded upon Gingrich and the House Republicans.

In 1998, a substantial majority of the American people rejected the Republican impeachment case against Clinton. After the House approved articles of impeachment, Clinton’s approval jumped to a new high of 73 percent in a CNN/USA Today/Gallup poll, and approval of Republicans tumbled to 31 percent.

Even the fiercest partisans sense those risks. That’s why impeachment does not happen promiscuously. Ronald Reagan was not impeached for Iran-Contra. George W. Bush was not impeached after Democrats won the House and Senate in 2006. Barack Obama was not impeached despite the fervor of the Tea Party Republicans who took the House in 2010 and the Senate in 2014.

The Trump impeachment, by contrast, was supported by a consistent if narrow majority. Seventy percent of Americans condemned Trump’s attempted extortion of Ukraine’s government to aid his reelection. Trump and his supporters hoped and trusted that impeachment would backfire in 2020 as it had in 1998. Pro-Trump pundits confidently predicted that it would backfire. Those pro-Trump hopes were disappointed. The process began and ended with most Americans accepting that Trump had committed impeachable offenses and that he deserved to be removed from office for those offenses.

None of this sufficed to force the Senate’s hand and end Trump’s term prematurely. But it did frame the 2020 election as a referendum on Trump’s wrongdoing above all—and debunked in advance the false claim that Trump lost reelection only because of his callous bungling of the COVID-19 crisis. Trump’s acquittal only postponed his political reckoning; it did not avert it.

Interestingly, this truth is perceived more clearly by Trump supporters than by Trump critics. Mark Hemingway, one of Trump’s most unwavering defenders in print media, wrote for RealClearPolitics on February 4:

By the numbers, Joe Biden is president of the United States because he won the swing states of Arizona, Georgia and Wisconsin by a combined total of some 43,000 votes. But he also owes his victory to the groundwork laid by Democrats and their media allies one year before, during the first impeachment of Donald Trump over his supposedly strings-attached demand that the Ukrainian government investigate alleged corruption involving Biden’s son, Hunter.

The first impeachment failed to oust Trump from office, but it helped secure the White House for Biden.

Hemingway intended to complain that Trump suffered some unfairness by being held to account. But the reason for such complaints is precisely that those on the receiving end of a popular impeachment feel the crushing power of this remedy—even when the impeachment does not end in conviction of the accused president.

In 2020, Trump could at least count on support from a majority of Republicans. Not in 2021. This time, only 36 percent of Republicans agree that Trump did “nothing wrong,” down from 56 percent of Republicans who said so last time.

Yes, Trump can probably still expect a second acquittal in 2021. But Trump has three main post-presidential goals, and the forthcoming trial will do severe and possibly lethal damage to all three.

Trump’s maximal post-presidential goal is to position himself for a comeback run in 2024.

Failing that, Trump would like to demonstrate that—president or not—he remains the dominant force within the Republican Party, a leader surpassing all others.

Failing even that, Trump would at a minimum like to prove that he remains a potent-enough figure to frighten away federal and state prosecutors from investigating his businesses for tax or bank fraud.

The second impeachment in the House has already complicated these goals. The second trial in the Senate will complicate these goals further.

The political world is already witnessing demonstrations of Trump’s ebbing impunity within his own party. Ten Republicans voted in the House to impeach. Five Republicans voted in the Senate to proceed with the trial. Two-thirds of the House caucus rejected Trump’s urgings to remove Representative Liz Cheney from leadership for her vote to impeach. Republicans, sadly, are not willing to unite to repudiate Trump. But they are not uniting to exonerate him either.

In his legal briefs, Trump has argued that he was justified in his attempt to overturn the 2020 election. Senate Republicans may want to acquit Trump on technicalities. He will not consent to that. It’s his way to implicate everybody around him in his worst behavior. Will he compel Senate Republicans to disassociate themselves from him? Or will they succumb to the trap set by Nancy Pelosi and the House Democrats, who are trying to identify all Republicans with the bigoted conspiracizing of QAnon and the violent sedition of January 6? The trial presents many hazards for both Trump and his party, and the odds are good that they will emerge from the trial exposed and weakened.

The Framers of 1787 modeled the House of Representatives on the colonial assemblies they knew so well. With the Senate, however, they were not so sure of what they were doing. In some ways, the Senate recalled the British House of Lords. In the 1780s, the House of Lords often functioned as a supreme court, the final arbiter of law. That was the inspiration for locating the power to try impeachments in the Senate. In other ways, the Senate derived from 18th-century understandings of how the Roman Senate had worked; that’s where the U.S. Senate’s “advise and consent” functions come from.

So much was uncertain about this new legislative invention. But the Framers did seem to expect that the Senate would function somehow apart from and above ordinary politics. They got that wrong. Any hope that the Senate would try impeachments with the detachment and objectivity of a court of law went out the window a very long time ago. Impeachment is politics, and an impeachment trial is politics, too.

Politics will dissuade the necessary 17 Senate Republicans from voting for Trump. Politics will acquit him. But that’s not the same thing as rendering the impeachment useless, or the trial a Trump victory.

A criminal trial is binary: guilty or not guilty, punishment or release. Politics offers a much wider range of outcomes. The Senate does not have to vote to disqualify Trump to destroy his future political prospects. It does not have to convict him on the impeachment charge to signal state and federal prosecutors that it’s safe to proceed against private-citizen Trump—that ex-president Trump has forfeited some large measure of the deference normally extended to former presidents.

He won’t be scotched. He will be marked. That will not be justice. It may be enough.

*A previous version of this article mistakenly referred to Bob Livingston as House Speaker. In fact, Livingston resigned before being formally confirmed to the position.