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.)
Wolf continues,
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.
Your protestations in the other thread aside, I am not sure how this is not just saying “meh” to what the Republicans in the Senate did. You are saying that they put party over country, and that is a bad thing. You are saying that they would have put party over country even in more egregious cases, and that would be a worse thing.
But you are also saying there is no way this will change due to our institutions. So why are Darryl and the CNN commentator wrong? Why does this not show there are no effective limits on the Presidency so long as his party has at least 1/3 of the Senate seats?
I sometimes see conservatism as the philosophy of “but”. We should do something about racial discrimination, but, bootstraps, young bucks, chose to live there … We should fix global warming, but, the economy, SUVs, it’s the Chinese … We should cut the deficit, but, tax cuts, trickle down …
We shouldn’t let democracy be destroyed, but, it’s being destroyed per the rules.
You can’t know that, it is merely opinion. Whataboutism is a nasty behavior, and worse if about a hypothetical.
There is only one major party in America that has become an Americanized version of Authoritarian Leadership, and it is not the Democrats.
This is not just about partisanship, it is also driven by fear of the personality cult that has developed around Trump. And, while Bernie has his cult (the BernieBros etc.) it is not even close to numerous enough to dominate the Democrats the way Trump does the GOP. And, there are personality traits differences between the parties, not so many Democrats susceptible to cult-like behavior.
You have a supermassive black hole’s mass more faith in the modern GOP than is warranted. They would support Trump even if video emerged of Trump handing Putin and the GRU a truckload of ballots and the keys to a voting machine factory.
Also, there’s very little qualitative difference between hacking machines to change votes and coercing a foreign government into announcing a fake investigation, thereby causing people to change their votes (or stay home). The latter is simply a bit less precise. But both rig the election.
The system has failed. All it took to subvert the system was one psychopath.
You have a computer. Turns out some hacker found an easy exploit and posted it on-line. But that doesn’t mean your computer’s security is compromised. Right? It was just that one guy who broke in, leaving behind an easy step-by-step how-to. Surely no one else will. . .
Once subverted, and once that subversion has been accepted, the system ceases to be anything like a democracy. So, I think what Democrats have to do now is talk to the Chinese and offer them a sweet deal if they break into Trump’s phone and computers and publish their findings. Then we should talk to the Germans and the French, line them up on our side. Of course Trump will have the Russians and Israelis, but that’s democracy, you get your foreign army and I get my foreign army and we do some democracy!
Although I find Joyner’s pious prissyness about the former president Clinton baffling and stupid, he is right here in that the high dungeon the Lefty commentariat here is overdone. The USA has had worse moments of corruption (later half of the 19th century being illustrative).
Rather than moaning about democracy being dead, it would seem rather more important to look at fixing norms that have broken down – that typically requires putting in place legal safeguards. Returning more power to the Congress and putting in place again an independent prosecution office (with lessons from your last misadventure taken nevertheless) not subject to executive relative to the executive itself, to address such moments may be one step.
Taking mere ad hoc measures will end up with an imperial President, but I think Joyner is correct, you are not yet there. But now the threat and the risk is made very evident, undeniable even. Reliance on tradition has broken down, so for better or worse institutionalized fixes are required else the effect of bad money driving out good will tend to self-reinforce.
From the political aspect, while the Left commentariat like to dismiss the entire Trump voting body as deplorables and write them entirely off, it seems rather clear there is a fundamental lower-middle-class to working class white reaction in the middle states feeling threatened by combined social and economic change, where regardless of mechanistic demographic predictions, such votes are fundamental to winning
Something like Brexit, the Remaining side was never sufficiently sensitive to the need to provide the positive story to the Left Behind by Change (essentially North and MidLands England, the English segments of Wales).
The Democrats have to develop a response that can peel off the right set of electoral vote winning votes – and that would seem rather clearly by structure to moderate the cultural Left politics and find paths of compromise between Coastal and Centre.
Or be condemned to whinging on and pious hand-wringing.
@Michael Reynolds: Nixon, Buchanan, Atwater, Rove, Gingrich, the Kochs, Scaife, McConnell…
It took lots of psychopaths, and lots of dipshit voters too.
I think a couple things may have permanently changed. First, the president’s use of executive privilege during an impeachment should not have been honored but it was. That doesn’t bode well for the future. Privilege can be declared and then if it is challenged it can be tied up in the courts for years. Second, Dems will want revenge. It is clear that principles dont matter anymore after the Merrick Garland debacle and now this.
Steve
@Moosebreath:
To the extent “there are no effective limits on the Presidency so long as his party has at least 1/3 of the Senate seats,” it’s been true for two hundred plus years, for reasons Steven lays out in “Is Presidential Impeachment Constitutional Dead Letter?” But I think the statement is too strong. Rather, no President is going to be removed through the process unless he’s at something like 70% disaproval in the polls.
@charon:
We obviously can’t know, and thus can only have opinions, about counterfactuals. But, as Steven lays out in the post I link above, the incentives for party unity in these matters is extraordinarily high. And, as noted in my other post this morning, no Senator has ever voted to remove a President of his own party. Ever.
@Michael Reynolds:
I don’t see how the analogy works. That Senators stand with their President even when he’s done wrong is a normal feature of our system. I think the modern GOP has taken this further than usual but I’m much more worried about voter suppression efforts at the state level as a threat to our democracy than this.
@steve:
It was brazen. But House Democrats should have gone to the courts for resolution rather than hoping Senate Republicans were going to do it for them.
Okay, let’s apply this to other positions.
“We can’t expect the local Sheriff to arrest that white guy for robbing a black guy. We have to accept that most of the people who voted for him were white.”
“We can’t expect that Judge to side with the rural plaintiff. After all he was elected in an urban district and the suit is against a powerful townsman.”
We should just accept these realities and that regardless of whatever oath they took it is to be expected that they wouldn’t act so as to jeopardize their reelection. Let’s not get all hysterical about this.
Got it.
Not viable. The courts have shown their bias by blatently slow walking such appeals, which is why that option was rejected. (The courts behaved very differently in the Watergate thing, and in e.g., Bush v. Gore).
@MarkedMan: I actually think we shouldn’t have elected sheriffs and judges because, quite naturally, they’re going to make decisions with at least some thought to their re-election prospects. But I think, by and large, they act honorably because their daily duties aren’t partisan activities in the way of Senators and Representatives.
@charon: Presidential refusal to comply with subpoenas in an impeachment inquiry would be fast-tracked to the Supreme Court. Maybe we’ve reached a point where SCOTUS is a partisan body but I don’t think so. Regardless, Pelosi and company should have tested the theory.
@James. You’re making judgments before all the facts are in. There are numerous lawsuits on executive privilege, congressional oversight, congressional appropriation of funds and Tiny’s taxes that are filtering up to the SC. We can expect that Tiny will receive adverse rulings on at least some of those issues. What happens if he simply ignores the court?
@James Joyner:
“To the extent “there are no effective limits on the Presidency so long as his party has at least 1/3 of the Senate seats,” it’s been true for two hundred plus years, for reasons Steven lays out in “Is Presidential Impeachment Constitutional Dead Letter?””
Sorry, but this is flat out wrong. Just because this generation of officeholders from the self proclaimed “Party of Moral Values” has decided to give its blessing to wrongdoing if it keeps them in office does not mean that was always true, nor even that it is true about both sides now.
It certainly was not true in Nixon’s time. The wall was starting to crumble during Iran-Contra, when only some Republicans (primarily on the Senate side) were willing to openly say that a President with less than a 70% disapproval rating had violated the law. It even was still true during the Clinton impeachment, when the majority of Democrats were supportive of a censure resolution over matters far less significant than the Ukraine gambit.
@James Joyner: You’re aware of the court case involving the subpoena of Don McGahn? The one where a federal judge ruled last November that McGahn must comply?
And has he? (I’m pretty sure you can guess the answer…)
@Sleeping Dog:
There’s precedent for that. Jackson did it. So did Lincoln. Ultimately, it’s up to the political process at that point: either he gets voted out in November or he wins re-election; either he’s impeached and convicted or he’s not.
@Mikey:
I was only vaguely aware. But the ruling was stayed the next day by a higher court and is, to the best of my understanding, not yet adjudicated.
@TheLounsbury:
I think it’s worth noting that most of American history is not democratic. From the disenfranchisement of non-white-men to the yellow journalism leading up to the Spanish-American War, to half the country marinating their brains in propaganda from Fox in the present day — our democracy has been woefully tainted far more often than it hasn’t.
We’ve been forced to see it twice in recent history — the George W. Bush selection by the Supreme Court, and the Trump election. The first revelation was washed away by 9/11 and the second we are still dealing with.
(There are lots of other examples, but mostly obscure enough that most people can ignore it — unequal representation because of the senate… it’s just a thing people don’t see, but an election of a non-plurality president is hard to miss)
The Trump impeachment and the lockstep refusal on the right to consider evidence is the first time (at least in my lifetime) we are forced to see that a lot of people are ok with a broken democracy so long as they end up on to and that it isn’t a quirk.
But, at the same time, it’s a reversion to the norm after a period of increased democracy.
I have no doubt that America survives this, but we were wrong about what America is. We thought it was what we hoped it was. That said, I’m pretty sure we can push America closer to democracy again — because that increasing democracy has also been part of America for the past 200 years.
It was as democratic as anything called democratic at the time.
As for “woefully tainted” – well such is reality with actual human beings and not abstractions in operation.
There will be other interesting issues to face this century. Global warming, for one. Do the rich technologically advanced nations of the world join together to constrain the earth’s rise in temperature? Or do they shrug it off and condemn smaller and less advantaged countries to poverty, famine, depopulation, etc? We Americans might be forced to make an explicit choice.
Another issue: people are already using in vitro fertilization and selective abortion to reduce the numbers of infants born with Downs Syndrome, spinal bifida, and other disorders. In maybe ten years, we can expect screening of sperm and eggs to produce “optimal” children, with higher intelligence and expected lifespans and reduced chances of Alzheimer’s and schizophrenia, etc. Probably not much later, we can use CRISPR or similar procedures to deliberately tailor children with desired characteristics. At a cost of course — maybe not for the cost of a millionaire’s mansion, but say new car prices. So, should Medicaid or other federal program foot the bill for everyone, or should we leave this to millionaires in a handful of states where such procedures are legal? And what should we do if in our wisdom we keep genetic modification under strict limits while say France or China decide to go for broke by allowing all their citizens to have Homo Sapiens 2.0 children?
And, given present trends, the US economy looks to run at no better than 2 % growth rates for the next many years, while China and India and Ethiopia and some other African states may be growing at 6-10% rates. China and India and Africa as a whole are larger than the US in population and can be expected to have larger armies and perhaps also greater inclinations to throw their weight around militarily. This is, to put the issue mildly, not the sort of world the US elite — or even non-elites in the USA — wants to dwell in, and deciding how to respond is likely to be contentious.
We’re probably going to have some future political controversies.
“We shouldn’t let democracy be destroyed, but,
it’s being destroyed per the ruleswe can’t stop that from happening unless we (well most of us anyway) agree on how to stop it.”FTFY
@Just nutha ignint cracker: The problem is that the institutions are designed so that “most of us” is not enough to enact massive changes. It would require roughly 3/4 support—or at least solid majority support in 3/4 of the states—to amend the Constitution. (Theoretically, the Constitution can’t be amended to change the way the Senate is apportioned but there are workarounds.) And it takes 67 Senators to remove a President.
@Teve: Thank you! I’ve been reading all of this outrage about Trump and how this is different and thinking that it’s almost like Kissinger and Ollie North never existed. 🙁 (And they may have actually succeeded at affecting the outcome of elections. 🙁 )
Then we get to see if there are agencies and forces available to place him under arrest. Beyond that, only events happening that way will tell.
@James Joyner: And more importantly, the likelihood of such an agreement–at the societal level, which is what I was thinking of–is infinitesimally small to begin with. We’re simply not good enough people to contend with changing our system. Fwk! We can barely recognize competent people to elect to office (and seem to have trouble encouraging honorable ones to seek office to begin with as well).
@James Joyner: Indeed. So I’m sure you can see how sending things over to the courts is essentially ineffective. Certainly, none of the subpoenas issued by the House have been “fast-tracked” to SCOTUS. Relying on the courts simply means nothing will happen soon enough to actually matter. Trump and the GOP know this, of course, which is why they asserted the ridiculous and unprecedented claim of “absolute immunity.” They know it’s impeachable obstruction of Congress, and they know the Senate Republicans won’t care.
Good grief, were they not blatant enough this time? Exactly how blatant would they have to be before Republicans would rise up against them? Well, other than if they were done by a Democrat, that is…
I’d love to know who is going to do all of that…certainly it won’t be members of a political party that are benefitting from corruption…
The concept of ‘precedent’ has been frequently abused and misused in all the kerfuffle about impeachment, often by lawyers who ought to have known better. The way the Republicans ran the Clinton impeachment did not limit in any way the options open to Congress to run this one, just as the Senate’s refusal to call witnesses will not impose a constraint on any future Senate that decides to call 50 of them. Neither party will feel any obligation to act in future consistently with what it said in the past; we’ve seen countless examples of this in the last few years.
Politics is an arena where the players are largely free to do whatever they think is in their interests, subject to the law and the institutional willingness to enforce it. Politicians might pay lip-service to the importance of following custom and practice when it suits, but they’re adept at inventing imaginative reasons why norms are inapplicable or no longer appropriate if they find them seriously inconvenient. Republicans might profess to find Dershowitz’s arguments compelling in 2020, but like Dersh did about his own opposite opinion which he had expressed in 1998, they’ll have no trouble finding that ‘more research’ convinces them he was dead wrong if a Democratic president is ever impeached.
Wrong question, I think. It’s like asking “Has the copious flow of pus from this wound injured the patient?”. The pus isn’t causing damage; it’s proof that really bad stuff had already happened.
Silly Hunter…he should have instead supposedly written a book like somebody else’s son did…I wonder if Hunter’s book would be described like this…
Wow! That description is perfect for none other than Guarneri…
Of course, if Hunter did write a book and wanted some help with selling it, he could do what another person’s son did…
@Teve:
Don’t underestimate the extent to which the psychopaths worked hard to make sure the voters were dipshits. Trumpism didn’t happen accidentally.