On January 6, 2021, Congress assembled to perform “one of its most solemn constitutional responsibilities”: the electoral count. As the House and the Senate convened in their respective rooms, and with Vice President Mike Pence presiding, President Donald Trump held the “Save America Rally” in the Ellipse within the National Mall just a short distance from the Capitol Building. For nearly an hour, President Trump spoke to the crowd, reiterating his claim that the Democrats stole the election and “exhort[ing] the crowd to ‘fight much harder’ to ‘stop the steal’ and ‘take back our country.’” At the end of his speech, President Trump called on his supporters to march to the Capitol, and at 1:30 p.m. they began their ascent up Constitution Avenue. Around 2:15 p.m., the pro-Trump mob breached the Capitol building. For hours, chaos ensued. Congressmembers were evacuated as rioters attacked Capitol law enforcement with “sledgehammers, baseball bats, hockey sticks, crutches, flagpoles, police shields, and fire extinguishers.” Once inside, the rioters vandalized the building: “They left bullet marks in the walls, looted art, smeared feces in hallways, and destroyed monuments.” As the Capitol was seized for the first time since 1814, President Trump was silent. For more than three hours, President Trump merely watched, described by those around him as “borderline enthusiastic,” before releasing a scripted video, telling the insurrectionists, “We love you, you’re very special. . . . But go home and go home in peace.” Five people died during the insurrection, and more than seven hundred individuals have since been arrested.
The entire country, and much of the world, watched the events unfold on January 6. It will remain etched in our minds and engraved in history as one of America’s ugliest days. The worst fear of the Framers of the Constitution had been realized: the President of the United States refused to concede the election and called on his supporters to attack the legislature. One could not have imagined a more blatantly impeachable act. The House moved swiftly, voting to impeach President Trump on January 12, 2021, by a vote of 232 to 197, and charging the President with incitement of insurrection. On February 9, 2021, the impeachment trial began, and on February 13, President Trump was acquitted. This result, though disappointing, was not altogether surprising. Republicans had vehemently expressed their opposition to impeachment proceedings from the beginning. Still, both sides agreed that President Trump’s actions were inexcusable, with House Minority Leader Kevin McCarthy going so far as to state that “[t]he president bears responsibility for [the] attack on Congress.” America was left wondering, how can the president of the United States be condemned by both sides of Congress for inciting an attack on the Capitol only to be acquitted of the incitement charge? The answer has to do with both the erosion of the impeachment tool and the growth of hyperpartisanship in America. This Paper attempts to explain the degradation of impeachment as a useful check on the executive branch and the dangerous effect an unchecked executive branch can have on our country.
Part II of this Paper outlines the history of impeachment, from its British roots to its incorporation into the U.S. Constitution and early application in America. Part III explains the elements of a successful impeachment: (1) a divided government; (2) broad public support; and (3) a threat to our constitutional order. Part IV applies those elements to the second impeachment of Donald Trump and explains why President Trump’s defenses were meritless. The impeachment elements have become hurdles the country must overcome before utilizing impeachment to constrain the power of the executive. Part V highlights the rise of hyperpartisanship and normalization of impeachment. Although once a useful deterrent, impeachment has been overcome by hyperpartisanship, and the result is a growing executive branch with little incentive to play by the rules. Part VI describes ways in which the impeachment power could be strengthened and other checks that can be used to temper the power of the executive branch. Finally, the Paper proposes that the real issue underlying the growing power of the executive branch is not a dysfunctional impeachment tool, but rather, a dysfunctional Congress.