Trump’s Acquittal and American Democracy
Has this precedent permanently damaged the country? Or is it just politics as usual?
In the discussion section of my post yesterday arguing that we didn’t need witnesses in the impeachment trial since the facts were not in dispute and the outcome was inevitable, I was somewhat cavalier in dismissing longtime commenter @Darryl and his brother Darryl‘s assertion, “American Democracy will die later today. Long live Donald J. Trump, KOTUS.”
That the country is in an absolutely awful state politically is beyond serious dispute. And the abandonment by the party with which I’d identified for nearly four decades of its ostensible core values has been distressing, indeed.
Still, I don’t see these as permanent, at least not necessarily.
CNN’s Zachary B. Wolf offers a more detailed version of Darryl’s lament this morning in a column titled “Here’s what we’ve learned from Trump’s impeachment trial.”
Trump has changed the balance of power in the United States
New separation of powers – Every American kid learns about the three co-equal branches of government envisioned and enacted by the framers of the Constitution, an ingenious invention to ward against the abuse of power and keep any one person from gaining too much control.
A newly empowered Presidency – But what’s absolutely clear from this impeachment is that the presidency has risen far above the other branches of government, freeing the occupant of the White House from the system of checks and balances designed to constrain him.
The Senate ceded power by declining to call witnesses or hear evidence against Trump. His attorney Alan Dershowitz claimed new and expansive power for the President by arguing the President’s personal interest in reelection can be synonymous with the national interest. The Senate granted that power to the President by acquitting him.
Rep. Adam Schiff, the lead House impeachment manager, called this “a descent into constitutional madness.”
More power – But Schiff’s warnings didn’t matter, since Republicans frustrated by Trump’s behavior decided not to act against him.
The President now has new power until a President, in the future, is checked. If you don’t think Bernie Sanders, were he elected, would use executive authority seized by Trump, you should give it some thought. Also read this story about his campaign assembling a list of things he could do via executive action — just as Trump did in his first 100 days back in 2017.
Little of that is true.
By presumptively acquitting Trump Senate Republicans have certainly emboldened him. They may well have given him the green light to further flout norms, conventions, and even laws in his re-election campaign. And that’s very, very bad.
But a Republican majority Senate refusing to remove a President who’s overwhelmingly popular with Republicans doesn’t change our system of checks and balances—it merely demonstrates that our junior high civics version of how they work is shallow. Their failure to convict President Trump no more binds them to give a potential President Sanders a pass than their failure to give Merrick Garland a hearing binds them to do the same for a Republican appointee. Indeed, I guarantee you virtually all Republicans who vote to acquit Trump would vote to convict Sanders under the same set of facts (and a large number of Democratic Senators who will vote to convict Trump would find an excuse for not convicting Sanders). And I’m not certain that Sanders would have been impeached by the current House, certainly not if he had the same approval among Democrats as Trump does with Republicans.
The only thing Wolf gets right here is the bit about executive orders. But that has next to nothing to do with this vote; it’s a longstanding trend that I’ve complained about for decades. (And, actually, Trump has been much less successful than his predecessors at enacting policy change through this vehicle because he’s been too inept to follow the Administrative Procedures Act.)
There are new rules for US politics
New precedent set — There’s a second way this impeachment, and Trump’s ability to stay in office afterward, has changed the country. It is now presumably OK, in the eyes of the Senate, for a President to use his office and US foreign policy to do political harm to his rivals. Trump has argued it was absolutely above board for him to seek political help from Ukraine. And he’s asked China for the same kind of help. Democrats continue to howl about it and some few Republicans complained in statements on their way to acquit him. But there is, as Mitch McConnell would say, now precedent for it.
A pattern of asking foreign governments for help — You might argue the precedent came in 2016, when Trump publicly asked Russians to hack Democrats. Plenty of Democrats wanted to impeach him after the Mueller report was released. But it wasn’t until he more actively sought help from Ukraine and used taxpayer dollars to do it, that impeachment reached a tipping point. That impeachment failed could mean he will feel no compunction about asking foreign governments for more help in the future.
Again, we’re in agreement that this is a bad thing. I just don’t see it as a fundamental re-ordering of our political system. Impeachment has always been a political process and, like is or not—and I don’t—party politics often trumps right and wrong.
As Steven Taylor explained last May in a post titled, “Thinking Through the Impeachment Process,”
[U]nlike judges, presidents serve fixed terms. This means that there is always a chance for removal coming. It blunts, therefore the urgency for Congress to seek to remove a problematic president. They can always punt to the people to decide. It also underscores the political nature of the process: all sides are calculating not only whether impeachment and/or removal are viable and appropriate avenues, but what role the next election plays in the process.
[T]his means that the only sure outcome of removal is when the president has so shamed himself that he might as well resign since he knows he will lose the next election (again, assuming we are talking first term). In a second term scenario he will likely only resign if his party is willing to vote him out because they have decided that their electoral fortunes will be adversely effects by continued support of that president.
Despite the elevated constitutional position of the impeachment process, it really does come down to electoral calculations. It is, to paraphrase Madison from Federalist 51, ultimately about a reliance on the people. The only way to get the Senate to vote in overwhelming numbers to remove a president is if the people have turned against that president in substantial numbers.
As such, we can’t forget that while all of this is mess is blamed on party politics, those parties are responding to voters. This fact would, of course, be a cleaner final answer if the Senate and Electoral College were more representative of popular political sentiment.
In theory, Senators should put their oath to the Constitution above such considerations. But the reality is that Senators will almost always find a way to rationalize supporting a President of their own party outside of the most egregious conduct. As disgusted as I am with the current state of the Republican Party, I’m reasonably confident that they’d vote to acquit a Republican President clearly guilty of treason, taking bribes, or other gross crimes. Mostly, though, that’s because the citizenry themselves would demand it.
Threatening to withhold security assistance that Congress had authorized for a desperate country in exchange for a public announcement of an investigation into a potential political opponent is unconscionable. But it’s murky enough that roughly half of the country—including roughly half of self-identified independents—think it’s not bad enough to remove Trump from office.
Similarly, I thought actively encouraging Russian manipulation in 2016 was impeachable. But Bob Mueller botched the report in a number of ways, making it easy for a corrupt Attorney General to mischaracterize. And the details were sufficiently complicated that Nancy Pelosi and other Democratic leaders judged it not worth the political risks of pursuing impeachment over.
Still, I think the American people—even Republicans—would rise up against more blatant attempts at foreign interference.
Later in the aforementioned discussion, Daryl characterized the Ukraine gambit as an attempt at “rigging the election.” I argued that, no, that would require “something along the lines of stuffing the ballot box, hacking voting machines to change totals in one’s favor, massive voter intimidation campaigns, and the like.”
Russians using sophisticated methods to manipulate people’s Facebook feeds and the like to sow discord was awful and it’s shameful that our government did so little in response. (I am sympathetic, however, to the Obama administration’s damned if you do, damned if you don’t predicament.) But it was nonetheless much easier to dismiss than efforts to manipulate the actual voting process. One hopes the reaction to that would have transcended partisan interests.
Alas, I’m less confident in my fellow citizens and our institutions than I was four years ago.
Despite his persistent lead in the polls, I thought the Republican primary electorate would revert to form and nominate a more sensible alternative to Trump. Even understanding the vagaries of the Electoral College, I thought it obvious that the people would reject Trump in the general election, especially after the “Access Hollywood” tape and other irrefutable evidence of his grossness. And I thought the Mueller Report would galvanize public opinion against him. I was, obviously, wrong.
To reiterate a point made by Steven, part of the problem is indeed institutional. The American people writ large did reject Trump; he was nonetheless elected because of the vagaries of the Electoral College. Similarly, it’s unlikely that Democrats will retake the Senate because its allocation doesn’t reflect the country’s demographics very well. But that’s not a new development.