Senators should not rush to remove President Donald Trump from office following the House of Representatives’ vote Wednesday to impeach the president for the second time in his four-year term, said Erwin Chemerinsky, dean of Berkeley Law.
Instead, Congress should focus on building a methodical, complete and articulate case about why Trump is unfit for office that will stand the test of history and make clear to future presidents what the limits are, he said.
“This impeachment is not about removing Trump from office,” he said. “This impeachment is about setting a message for the future.”
Chemerinsky spoke with Berkeley News shortly after the House’s 232 to 197 vote to impeach the president for inciting a violent insurrection on Jan. 6 during remarks to his supporters.
You wrote in a Los Angeles Times op-ed on Tuesday that the Democrats should ‘not rush’ impeachment. What worries you about the fact that they took this vote so quickly?
Erwin Chemerinsky: I support impeachment, and I am glad that the Democrats impeached. What concerns me is the procedures — that always, before, it was a committee that gathered the evidence, held hearings, made recommendations and then the whole House took it up. This time, they didn’t follow that procedure. I worry it sets a precedent for the future.
What is that precedent?
It sets a precedent that it doesn’t need to go through that kind of careful process.
Why do you think that careful fact-finding is so important, even when we are in this period of polarization, where no one can agree on basic facts?
If nothing else, the fact-finding process sets the evidentiary record, and when people look back on it, they can see the evidence that was there. I think that the fact-finding process lets the people at the time know that it was a careful and thorough procedure.
Do you think this more about changing minds now, or recording something for the sake of history?
Both. This impeachment is not about removing Trump from office. This impeachment is about setting a message for the future and a message to the country now. When I wrote the op-ed piece, I thought that message would be much more developed if there were those kinds of hearings and it went through the usual procedure.
But isn’t impeachment inherently a political act that isn’t about law or procedure? Isn’t it about politics?
Well, it’s both politics and law. It’s done pursuant to law, the Constitution. It has to meet the constitutional standard: treason, bribery, or high crimes and misdemeanors. It requires that the law be followed: a 50% vote in the House and a two-thirds vote in the Senate to convict. So, it’s the application of a constitutional standard by a political body.
One of the concerns among some lawmakers is actions Trump could take in the last days of his presidency. If he isn’t quickly removed from office via impeachment, how should he be held accountable?
Well, impeachment doesn’t change what Trump can do in the next seven days because the Senate’s not going to meet to consider removing him from office before January 20th. So, impeachment doesn’t in any way constrain Trump. Obviously, if he were to try to do something very destructive, we just have to hope the other checks in government would be able to provide us protection .
What do you think the Senate should do now?
I hope that the Senate will hold a trial. I hope that the two-thirds of them will then choose to convict Donald Trump of that for which he’s accused.
And if he is convicted, even after he’s left office, what will that mean?
Well, there’s a disgrace that goes with this. And there’s a message to the future of those who occupy the White House in terms of how not to behave.