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Op-Ed: The House should not rush an impeachment vote this week

House Speaker Nancy Pelosi (D-San Francisco)
House Speaker Nancy Pelosi (D-San Francisco) speaks to reporters Thursday, the day after a pro-Trump mob stormed the U.S. Capitol.
(Kent Nishimura / Los Angeles Times)

Given what the world has seen in recent weeks and days from Donald Trump and the consequences of his lies about a stolen election, he deserves to be impeached. It appears that the House is planning to vote on an article of impeachment on Wednesday. But a sound process requires that the House not rush to a vote this week.

The House can continue its impeachment process after Trump leaves office, and then send the article of impeachment to the Senate any time after that.

The point of impeaching Trump now is not to remove him from office. There is no chance that the Senate will meet to consider this, let alone have a two-thirds vote to remove, by Jan. 20. Rather, the impeachment is to send a message of condemnation of Trump’s behavior to the country and for the future. But a rushed vote, deviating from the usual procedures, is sending the wrong message about how impeachments should be handled.

The standard procedure is for a House committee to hold hearings and vote on articles of impeachment. This allows for the gathering of evidence and for the nation to hear arguments from all sides. Once voted out of committee, the full House can consider the articles and approve them by a majority vote. This was the process followed in 2019 when Trump was impeached and in prior impeachments as well.

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This week, however, the House is planning to skip committee hearings, going right to a floor debate and then vote. Perhaps the argument is that everyone saw what happened and there is no need for committee proceedings. Although I find the arguments and evidence for impeachment to be compelling, there still are questions that need to be addressed and evidence that should be produced.

The draft of the article of impeachment for Trump accuses him of inciting an insurrection. The hearings could carefully develop the evidence that his speech constitutes incitement, which is a term with a specific legal definition. At the very least, committee hearings could fully develop the factual record of Trump’s conduct and the legal arguments for why his conduct constitutes inciting insurrection. This would be a crucial record for the future. Those who disagree could offer evidence and testimony in the committee hearing. And there may be other articles of impeachment that should be added.

Even if the evidence appears to make a committee hearing superfluous, I worry that this sets a precedent for the future to skip the committee work. Fact gathering, debate and deliberation are important when the stakes are as high as impeachment of a president or a federal judge or a high-level federal officer.

There is an understandable desire to proceed quickly because Trump has little time left in office. The Constitution says that a president, and other officers, may be “removed” for treason, bribery, or high crimes and misdemeanors. That implies that impeachment is limited to those occupying an office, though there is strong historical precedent for impeachment proceedings continuing after a person leaves government service.

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The reality is that there is nothing to stop Congress from continuing impeachment and removal proceedings after someone leaves office. The Supreme Court has said that the federal courts cannot and will not hear challenges to impeachment and removal proceedings; those issues are left to the discretion of Congress.

And in the current case, the Senate will not take up impeachment until after Trump has left office. No one expects the Senate, which is in recess until Jan. 19, to consider the article of impeachment before Trump’s presidency ends.

The House’s haste reflects the understandable outrage that its members feel over Trump’s undermining of the election, his fomenting of violence and his role in the attack against the Capitol. I share that outrage. But deep feelings are a reason for more procedure, not less.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.


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