If it’s early February, it must be time for another impeachment of Donald Trump.
Yes, I know that’s what his defenders say as well, bitterly. But parties differ on shape of planet.
In mid-May 2019, I published a blog called “Who’s Afraid of the Big I?” arguing for the Trump’s impeachment based on the conclusions of the Mueller report. That essay was the third in a series, following posts on why Trump richly deserved that fate, and the appalling Republican rank-closing to protect him, “a die-in-place effort that makes thefanatical deadenders of Imperial Japan look like wishy-washy dilettantes,” as I wrote at the time. Not much has changed, except that this time both aspects are even worse.
Of course, Trump was not impeached over the Mueller report, but seven months later, he was impeached over a completely different, though related, scandal. Man, the guy had criminality to burn. From the great beyond, Nixon must be doffing his cap. (The Wifi in the seventh circle of Hell is pretty good.)
I want to look at the same issues again now, as we prepare for something even weirder: this second impeachment of Donald Trump, after he is out of office. This, of course, has never before happened to a US president, and is something almost no one ever predicted, not even the most savvy and/or Trump-critical observers. But then again, almost no one ever predicted that Trump would send a mob of Confederate flag-waving, body armor-wearing, gun-toting goons to invade the US Capitol, assassinate his own vice president, and try to keep him in power by force.
THE PEOPLE VS. DONALD TRUMP
The House impeachment managers, led by Rep. Jamie Raskin (D-Md.) will no doubt definitively show Trump’s culpability for the January 6th attack on the US Congress. (That, my friend Justin Schein says, is the proper way to describe it—as an attack on people, and not just a building—and he’s right.)
They will show how Trump spread the Big Lie that the 2020 presidential election was “stolen” from him, and in fact laid the groundwork for that lie for months beforehand, not to mention doing his level best to undermine the vote in that very election.
They will show how, after he was fairly and decisively defeated, he exploited every legal maneuver to try to overturn the result, losing some 60 lawsuits in the process. They will show how, when legal options were exhausted, he and his surrogates (like Lindsey Graham, who will be one of the jurors even as he is implicated in the offense) turned to illegal ones, pressuring state lawmakers to cheat, to decertify their state’s votes, and generally to disregard the will of the people. Though will show how he pressured his own VP in the same way.
And finally they will show how, as his last ditch effort at hanging onto power illegally, he summoned his furious, radicalized followers to a rally on the National Mall, fired them up with more lies and open calls for violence (a longstanding trend in his rhetoric), and sent them down to the halls of Congress to attempt a violent seizure of power. This was not a peaceful protest that—oops—got out of hand. It was a well-orchestrated assault, funded by well-connected Republican groups, promoted by the White House itself, planned and coordinated by its most violent followers, who came equipped for battle, with reconnaissance beforehand conducted with the aid of sitting Republican members of the US Congress. There has never been anything like it in American history, and Donald Trump must answer for it.
I am very confident that the Democratic case for the prosecution will be a juggernaut.
So let’s look now at the Republican defense. It has two major, process and substance, and the tea is very weak on both.
On the former, Trump and his defenders claim that it is unconstitutional to impeach a president after he has left office. But the Senate has already rejected that argument, as well it should, with five Republicans joining the unanimous Democratic majority. Of course, for conviction, the burden is reversed, and the prosecution will need 67 votes to prevail. But in terms of sheer legality, this Republican claim has no basis, either in the US Constitution or simple logic. (A nice summary of the whole issue is here.)
Federal officials have been impeached after leaving office, and reason demands that they be subject to that procedure. In 1876 Grant’s Secretary of War William Belknap was impeached (and acquitted) of corruption even after resigning from office. The Senate affirmed its right to do so in a 37-29 vote. In 1989, the US Supreme Court affirmed the Senate’s broad powers in terms of who it may impeach and under what rules, in considering an appeal from a US District Court judge in Mississippi, Walter Nixon (no relation, but it’s ironic), who had been impeached, convicted, and removed from office on corruption and bribery charges. (Thanks to former US Attorney Chuck Rosenberg for that citation.)
A variation on this claim is the so-called “January Exception,” the idea that a president can’t be impeached for actions taken in the final two weeks of this term—the equivalent of “garbage time” in sports. I’m not a constitutional scholar, nor a professional sportswriter, but I don’t see that in the owner’s manual for our representative democracy either. As former acting Solicitor General Neal Katyal has argued, If that were so, a president could commit any crimes he or she wished in his final weeks of office—murder, bribery, conspiracy with foreign powers—knowing that there would be no time to try him before the end of his term.
And of course, the entire line of argument ignores the fact that Trump was impeached before he left office, on January 13th, meaning that his Senate trial could well have started (and indeed concluded) while he was still president for those remaining seven days….except that Mitch McConnell prevented that from happening. Now McConnell has voted with those who say Trump can’t be impeached for that very reason.
So let’s dispense with that laughable claim.
When they eventually lose their argument about process, Republicans will claim that Trump did not do anything impeachable. This argument, put forward by the likes of the aforementioned senior senator from South Carolina, would have us believe that the Democratic effort to convict Trump, even if legal, is driven by sheer personal vindictiveness. (They tried this with Russiagate and Ukrainegate as well.)
Again: risible. If fomenting a violent insurrection to overturn a fair and just election in order to hold on to power is not impeachable, wtf is?
The Republicans will reply that Trump did no such thing—that all he did was exercise his right to free speech. In fact, they have already made this claim even ahead of the trial. “If this speech is considered incitement for insurrection,” said Trump’s new lead counsel. David Schoen. “then I think any passionate political speaker is at risk.”
What utter bullshit. The House managers have already taken on this ridiculous but predictable claim, arguing, as the Washington Post reports, that the First Amendment was never intended “to allow a president to ‘provoke lawless action if he loses at the polls.’”
“I have a dream”…….”Ask not what your country can do for you”…..”All we have to fear is fear itself”—that is passionate political speech.
“Let’s go down to the Capitol take back this stolen election by force!” is not.
It’s worth stopping here to note that the Capitol insurrection is the child of the nauseating “Liberate” rallies of the summer of 2020, and the attempted kidnapping of Michigan Governor Gretchen Whitmer. Moreover, it is the malignant grandchild of the “Brooks Brothers riot” of 2000, when Roger Stone organized a paid mob of aggressive Young Republicans to pound on the doors of the Miami-Dade County election board until the terrified canvassers stopped the recount. It worked then, so it is any wonder that the technique has metastasized? But now the rioters have traded their Oxford shirts and khakis for camouflage and Kevlar, and went right to the heart of the federal government, carrying nooses for Mike Pence and Nancy Pelosi.
KABUKI, REPUBLICAN STYLE
I’m quite sure that Rep. Raskin & Co. will go on to demolish everything else the GOP throws up next week; we can postpone a thorough review until the trial unfolds.
But what is already clear is that Senate Republicans will be in a tough spot, because Trump really does not want to mount a defense based on process, or even substance really. He wants to defend himself on the grounds that he actually did win the election, and that his supporters were right to storm the Capitol and attack the Vice President and members of Congress in order keep him in office for a second term. That was the point that caused him to lose his previous legal team last week, at the eleventh hour, because he wanted those lawyers to go before the US Senate and argue that the Capitol insurrection was justified.
The mind reels.
(There is also reportage that Trump, skinflint that he is, balked at that legal team’s pricetag, said to be about $3 million, even though he just scammed $170 million from his dumbass supporters ostensibly to fund that legal defense. With Trump it always comes down to money.)
And here’s the kicker: Despite the utter madness of that argument, Trump will almost certainly win a second acquittal. Forty-five plus Republican Senators may not buy the argument that he was within his rights to try to overthrow the government—although they might, given their collective, unprecedented reluctance to acknowledge the legitimacy of the Biden administration—but they will at the very least find a way to AGAIN excuse him of responsibility, a reprise of their shameful shielding of Trump’s actions re Ukraine at this same time last year, even as these high crimes are much, much worse, and his culpability much, much more obvious.
But in order to do that, Republicans are going to have to participate in a very public, nationally televised, ritual of shocking self-abasement. Luckily for them, they are good at that.
The Post again:
The (Democratic) effort to present new video evidence and witness testimony appears designed to make Republican senators as uncomfortable as possible as they prepare to vote to acquit Trump, as most have indicated they will do. The prospect of injured police officers describing the brutality of pro-Trump rioters to Republicans who regularly present themselves as advocates of law enforcement could make for an extraordinary, nationally televised scene.
I look forward to watching fifty Republican Senators squirm as they watch video of Trump whipping up the crowd on the Ellipse, followed by twenty different crowdcast iPhone camera angles of a violent assault on the US Congress, Trump acolytes chanting “Hang Mike Pence,!”, a Capitol Police officer being beaten to death with a fire extinguisher, and MAGA flag-waving seditionists shouting “Trump sent us”…..and then voting to acquit anyway.
In other words, Senate Republicans are going to have to stand up, one by one, even as Trump howls, “Hell yes I ordered the Code Red!!!” and say, “Nah, he didn’t.” Case dismissed.”
Good luck with that, fellas. The whole world will be watching.
IMMANUEL KANT WAS A REAL PISSANT
Even as the trial itself is probably a foregone conclusion, the politics swirling around it remain volatile.
The duty to impeach on principle, and to lay down the law against future presidential malfeasance, was never in doubt in 2019 and 2020 and is even less so now. But practical and tactical arguments remained—mostly dishonest ones from the right, but some genuine ones from the left as well—about why impeachment was nonetheless a fraught proposition for the Democratic Party. The arguments from back then will sound familiar, because we are hearing them again now.
From the friendly side, there was a lot of talk about whether the commitment to principle was outweighed by the goal of maximizing our chances of ousting Trump at the polls the following November. I disagreed, writing in May 2019:
(T)his utilitarianism, even if correct, creates an immense moral hazard. It is Congress’s sworn duty to hold a criminal president accountable, and failure to do so would be an egregious act of negligence and a terrible portent for the future, no matter what the electoral impact.
But I also rejected the whole premise of this false equivalence:
…..this theory presumes that impeachment by the House without a conviction in the Senate will hurt Democratic chances in the election. But we don’t know that that is so; in fact….it might be quite the opposite. In any case, it’s not at all clear that pursuing impeachment and winning the next election are mutually exclusive choices that require a binary calculation.
In other words, timidity on impeachment (cowardice, if we want to be blunt), even above and beyond the demands of principle, would cost us on Election Day.
The New York Times’ Eugene Robinson hit the nail even more directly on the head:
(S)trictly as a matter of practical politics, the best defense against Trump has to be a powerful offense. I fail to see the benefit for Democrats, heading into the 2020 election, of being seen as such fraidy-cats that they shirk their constitutional duty.
Does it “play into Trump’s hands” to speak of impeachment? I think it plays into the president’s hands to disappoint the Democratic base and come across as weak and frightened. Voters who saw the need to hold Trump accountable decided to give Democrats some power—and now expect them to use it.
Considering that the Dems went on to win the White House, the Senate, and hold the House in November 2020, Robinson’s argument looks vindicated, notwithstanding other intervening factors unforeseen in May of 2019—like 400,000 dead from a pandemic—that had a hand in it.
One of the Democratic voices arguing against impeachment in 2019 was former Clinton press secretary Joe Lockhart, who in an op-ed for the New York Times that April suggested that leaving Trump in office for the rest of his term would actually do the Republican Party much more harm by letting him continue to ruin their “brand.”
I objected to that approach on principle and still do, but it did turn out to be true following the craven Senate acquittal…..although I don’t think Mr. Lockhart or anyone else imagined at the time that the damage would include 500,000 dead Americans and an economy ravaged to near-Great Depression levels.
(Lockhart’s argument) blithely ignores the massive damage being done by Trump. In that regard it feels like something that could only have been written by a privileged member of the professional political class, one consumed with 202 area code gamesmanship, and not personally threatened by things like loss of health care, or clean water, or deportation to Guatemala….
Lockhart’s argument prizes partisanship over the public interest, treating the red-blue pachyderm/donkey competition like a sport, and not the existential national emergency it is.
Secondly, this argument vastly underestimates the resilience of reactionaryism. Yeah, the old white male demographic is dwindling in its political power, but to imagine that five-and– half more years of Trump is going to destroy the Republican Party from within is the worst kind of naiveté. It is more likely to destroy American democracy as we know it but leave the Republican Party intact, cockroach-like, and indeed more far-right wing than ever, blaming Democrats, immigrants, women, and people of color for the mess that the country is in.
And plenty of people tuned to Fox will believe that and still pull the GOP lever.
Turns out it didn’t even take five-and-a-half years for Trump to do that kind of damage, only one-and-a-half.
Meanwhile, post-January 6th, Republican submersion in the Kool-Aid is proving even deeper than we thought.
Of course, even if Trump is acquitted—again—this second impeachment will still have great value, even beyond a stand on principle, valuable as that is. As the New York Times’ Charles Blow argued in 2019:
I say that there is no such thing as a failed impeachment….The Senate has never once voted to convict. So, an impeachment vote in the House has, to this point, been the strongest rebuke America is willing to give a president. I can think of no president who has earned this rebuke more than the current one. And, once a president is impeached, he is forever marked. It is a chastisement unto itself. It is the People’s House making a stand for its people.
To Mr. Blow’s point, Trump is now the only US president ever to be impeached twice, and in a single term, to boot. If that’s not a withering indictment of him as far and away the worst president in American history, I don’t know what is.
(Andrew Johnson fans, spare me your teeth-gnashing. Andy’s abominable sabotage of Reconstruction was a precursor to Trump’s attempts to bring back the Confederacy, so he can share in Donald’s infamy.)
The impeachment offers another benefit to Democrats. Even if (when) Trump is again acquitted, the opportunity to present in public, on live television, a ironclad case for his criminality regarding January 6th is invaluable. It is not the Senate but the court of public opinion in which the House managers will be making their argument, and not to a jury of Senators but directly to the American people.
Nancy Pelosi was very canny about impeachment the first two times it was on the table, and took a lot of heat for how long it took her to get onboard over Ukraine. As I said at the time, I suspected she was “merely keeping her powder dry until the big fat orange target is in her sights at point blank range.”
So it’s significant that she didn’t hesitate for a moment this time. Trump sent people to assassinate her, and Mike Pence, and others. You can understand why she thinks he ought to be made to answer for that.
WHAT WE HAVE ON OUR HANDS IS A DEAD ELEPHANT
In 2019 I wrote:
The Republican Party is broken. You can’t have a functioning democracy when one of the two political parties refuses to act in good faith, and barring a sudden burst of integrity (ha ha just kidding), it’s hard to imagine the GOP returning to anything resembling principled participation in the American political process anytime soon.
And that was before the GOP got onboard with the violent overthrow of a democratically elected President from the opposing party.
(I)t is worth noting how the entire responsibility for saving the republic is being laid at the door of the Democrats, because not a single sentient American that I know of believes that the Republicans will lift even a pinkie finger to do the right thing.
For three years, going all the way back to the campaign, we have been hearing that Trump would finally cross a line that would alienate sufficient numbers of GOP leaders or voters. But nothing he has done has yet constituted that line, including the most outrageous revelations of entanglements with foreign powers, national security nightmares, hush money payments to porn stars, tariffs that violate what was once sacrosanct conservative dogma, outrageous attacks on our NATO allies and shoulder-shrugging over state-sponsored murders by Middle Eastern theocracies, the surgical attachment of his lips to Vladimir Putin’s white Russian butt……and on and on.
If the GOP is no longer a good faith partner willing to participate in a legitimate representative democracy, the Democrats’ path forward is a fait accompli. It’s not a matter of whether we are in a streetfight with a neo-autocratic white nationalist crime syndicate. That battle is already joined. The only question is how best to win it.
That assessment has proven true in spades. Even so, almost no one would thought Trump would go as far as he ultimately did, or that the GOP would be fine with it.
We are now seeing the logical end of the descent of the once-proud Republican Party. In my previous essay I quoted Paul Krugman, and I’ll do it again, as what he wrote in May of 2019 remains as true today as it was then:
It’s later than you think for American democracy. Before 2016 you could have wondered whether Republicans would, in extremis, be willing to take a stand in defense of freedom and rule of law. At this point, however, they’ve already taken that test, and failed with flying colors.
The simple fact is that one of our two major parties—the one that likes to wrap itself in the flag—no longer believes in American values. And it’s very much up in the air whether America as we know it will survive.
THE LUXURY OF A BLIND EYE
Last week in these pages, I made an argument that one can currently hear all over the non-insane portion of the United States: that there can be no unity in America, no healing from the Trump years, no repair and forward progress without a reckoning for what we just went through. In other words, accountability.
We will see a first step in that process when Donald Trump’s second impeachment trial in the US Senate kicks off tomorrow.
It ought also to be remembered that even in its shameless dishonesty, the Republican cry for unity is a tacit admission that Trump fucked things up. Bad.
The New Yorker editor David Remnick reminds us of the words of Jonathan Schell in that magazine in 1973, writing about Watergate.
Schell wrote, we are not allowed the luxury of seeking out the truth about high crimes and misdemeanors and then simply ignoring what is discovered.
“In a democracy,” he observed, “certain forms of truth do more than compel our minds’ assent; they compel us to act.”
This week, the Senate begins deliberations in Donald Trump’s second impeachment trial—and the resulting verdict will tell us much about the direction of our country. There have been only a few other moments of such political consequence in American history.
How will we fare? Not glowingly, given Republican telegraphing of the inevitable acquittal. But perhaps, as with the last impeachment and the pre-determined acquittal that followed that one, we will witness at least one of our two major political parties demonstrating its belief in the rule of law, and the idea that a defeated president is not within his rights to attempt a violent seizure of power.
Just a thought.