Friday, February 12, 2021

Are the Consequences of Trump's Impending Acquittal by Senate Republicans Definitely All Bad?

by Neil H. Buchanan

The House's impeachment managers rested their case yesterday, powerfully concluding a necessary national immersion into the events that led up to the January 6 insurrection and the horrors of that day.  If nothing else, the Democrats successfully reversed the shocking national amnesia that had set in over the last five weeks.
 
Republicans have, all too predictably, continued their contradictory and bad faith responses -- "What kind of trial has no witnesses?" "If the Democrats dare to call witnesses, we'll freak out!" "They're going through this too quickly!" "They're going through this too slowly!" -- and the outcome is so little in doubt that Trump's lawyers are going to essentially submit a Post-It note for their defense today and then rest.

Although I have argued passionately that there is only one right outcome to this trial on its own terms, I have also expressed doubts about whether the outcome matters going forward.  It is a strange situation indeed, with Democrats truly having no choice but to impeach on these facts and then to proceed to trial and hope for a conviction, even knowing that this could all end up helping Trump and the Republicans in the political realm.  "Could," however, does not mean "will," and it remains possible that Democrats will gain politically from doing the right thing.

But what if we knew with certainty that the Democrats' seemingly required response to the insurrection would lead to Republicans taking back power in 2022 and never giving it up again?  Obviously, the strategy would have to change, and impeachment -- no matter how justified -- would have to be abandoned.  Because it is just as easy to picture a future in which Democrats gain by having impeached but lost in the Senate as it is to picture the opposite, however, the only thing to do now is to defend the rule of law and hope (and fight peacefully) for a better future.

Here, I want to explore the possible political implications of the trial from a slightly different angle.  As I wrote in my Dorf on Law column yesterday, "I am less convinced than ever that the Senate's vote in this trial matters, as I will explain in greater detail in my next Dorf on Law column tomorrow."  In particular, I want to disagree rather strenuously with two arguments that the Democrats' impeachment managers laid out as a warning to any wavering Republicans.

Representative Ted Lieu (D-CA) offered this completely plausible line of reasoning yesterday:
"And that is why President Trump is so dangerous, because he would have all of us, all Americans believe that any president who comes after him can do exactly the same thing. That’s why lack of remorse is an important factor in impeachment because impeachment, conviction and disqualification is not just about the past, it’s about the future. It’s making sure that no future official, no future president does the same exact thing President Trump does. President Trump’s lack of remorse shows that he will undoubtedly cause future harm if allowed, because he still refuses to account for his previous high grave crime against our government. I’m not afraid of Donald Trump running again in four years, I’m afraid he’s going to run again and lose because he can do this again."
Similarly, the brilliant Jamie Raskin (D-MD) echoed Lieu and argued that, "[i]f you don’t find this a high crime and misdemeanor today, you have set a new terrible standard for presidential misconduct in the United States of America."
 
The impeachment managers thus argued that convicting Trump is both necessary and sufficient to stop him from doing this all over again.  The idea is that an acquittal sets a bad precedent that apparently cannot be reversed, while a conviction stops Trump in his tracks and thus prevents future Trumpian insurrectionist activity.
 
Even though I do believe that Trump should be convicted, I think that both of those assertions are contestable at best and outright wrong at worst.
 
Raskin's claim that an acquittal sets a terrible precedent is true to the extent that precedents matter, but no one seriously thinks that the lesson that people would take away from an acquittal is that any future president could do whatever he or she wants.  In response to any possible impeachment talk, that future president might well say, "Hey, at least I didn't incite an insurrection, so get off my back," but that in no way guarantees that he or she would be let off the hook by a future Congress.

For one thing, there is the technical but dispositive point that the Senate need not adhere to its own past practices.  Just this week, in fact, 44 Republicans ignore the inconvenient fact that the Senate has indeed tried officials who no longer hold office.  In any future situation, senators of either party could simply say that new facts require new thinking.  Some people (including now-Senator Lindsey Graham)  thought that Bill Clinton's lying during a deposition about non-official conduct was a high crime, yet they felt no obligation to be guided by that precedent in 2020 or 2021.
 
And lest we forget, Republicans in 2016 said that Supreme Court vacancies cannot be filled during an election year, only to brazenly and without shame or apology do the opposite in 2020.  Situational inconsistency is the rule, not the exception.

More to the point, even the most naive civics student would have to conclude from this trial not that there is a "new terrible standard for presidential misconduct" but that the vast majority of the Republican Party thinks that Donald Trump should be able to do whatever he wants.  That is the upside of a cult of personality, after all.  Republicans would throw Ted Cruz or Josh Hawley overboard in a second, if it were in the party's political interest to do so.  If not, they would probably point to the 2021 acquittal as a supposed precedent, but that would be entirely opportunistic and thus performative.

Stated differently, I am not going to be any more worried about the standards for impeachable conduct after a Trump acquittal than I would be after a Trump conviction.  I want him to be convicted for different reasons, but I do not see how what happens here is going to change the hyper-political nature of impeachments in the future either way.  Every impeachment will be different, and any appeals to precedent and history will be window dressing, every time.

As great as his handling of the trial was, then, Raskin's bleak warning about the future strikes me as completely unconvincing.  Do not misunderstand me here, however, to be saying that the future is anything but bleak.  I am simply observing that its bleakness is already guaranteed, conviction or no.

What of Lieu's warning that the Senate must convict Trump and vote to disqualify him from holding office?  Again, Lieu persuasively asserted that "President Trump’s lack of remorse shows that he will undoubtedly cause future harm if allowed," and: "I’m not afraid of Donald Trump running again in four years, I’m afraid he’s going to run again and lose because he can do this again."
 
Even though Lieu had not yet spoken those words when I published yesterday's column, this idea is exactly why I wrote in that column that I remain unconvinced that the trial matters.  My cynical, resigned equanimity can best be explained in two steps.

First, Trump can and probably will foment violence no matter what happens.  If he were convicted by the Senate, the only consequence would be that they would try to disqualify him from running in 2024 (more on that shortly).  That, however, would not stop him from encouraging people to engage in acts of violence against his perceived enemies.  If Trump gets it into his head that, say, Liz Cheney needs to be terrorized, he would not say, "Oh, but I was convicted by the Senate.  Never mind!"  If he lets it be known that the Republicans who defied him need to be not just primaried but violently harassed (a la the incident in Texas last Fall with the Biden campaign van, which could have ended with people dead), many of his dead-enders will heed the call.

And if Trump comes up with the idea that his cultists need to return to the Capitol to finish what they started, the success or failure of that second insurrection will not depend on the outcome of the Senate trial.  It will depend in large part on whether there are enough people who will risk being killed or jailed again, but that is not what Lieu was talking about.  I honestly doubt that there will be another attack on the Capitol, but that is not because of anything related to impeachment.

Second, Lieu is right to imagine that if there were to be another sacking of the Capitol (or anything like it), it would most likely happen in the aftermath of Trump running and losing again in 2024.  Again, that is not to deny that non-candidate Trump would be motivated to rouse his false patriots in other contexts.  If Trump is charged with a crime, for example, he could incite his cultists to attack the prosecutors, the jurors, the judges, the courthouses, the prisons, and so on.  Indeed, he might be somewhat more inclined to do so after being convicted by the Senate, simply out of pique and vengeance.

More importantly, the premise of Lieu's argument is that a Senate conviction and disqualification from running again would actually be binding.  That is, Lieu assumes that Trump would in fact be prevented from running in 2024 if the Senate were to convict him.  But imagine that 17 Republican senators voted to convict, only to see a huge pro-Trump backlash.  Trump already has 88 percent of the Senate Republican caucus on board saying that the trial is unconstitutional, which would mean that his conviction and disqualification are infirm.  Even Republicans who voted for conviction could say, "Well, it was a hypothetical vote, assuming arguendo that the trial was constitutional, which it is not."

How would that play out?  If Trump truly decides that he wants to run in 2024, he will almost surely have the full backing of Republican-led states (especially because the responsible Republicans in those states are currently being purged), which means that he would be nominated and put on the ballot in those states.  Who cares if blue states insist on leaving his name off the ballot?  With Republicans now doing their worst in Arizona and Georgia, Trump is only one governor's mansion among three (Wisconsin, Michigan, and Pennsylvania) away from locking down an Electoral College majority, without a single voted being cast.

Would Democrats fight that in court?  Whether or not Biden runs again, there would be a very sensible argument not to appear to be afraid of running against Trump.  They might even want to run against him again, because everything that gave Biden the win in 2020 is dialed up to eleven when Trump is on the ballot.  It might even be the best way for Democrats to hold onto or win back the House and Senate in 2024.

If it did go to court, what would happen?  At the Supreme Court, the justices could rule that the post-term Senate conviction of Trump was indeed unconstitutional.  The six Republican justices are probably not that nihilistic, however, so they would likely try to find federalism-like reasons for letting the states determine who is an eligible candidate.  Or, the Court could simply hide behind the political question doctrine and be done with it.

I am not laying odds on any of my speculative musings here.  What matters is that there are ways that -- even after being convicted and purportedly disqualified from serving again -- a Donald Trump who manages to maintain his grip on the Republican Party would be able to make a great deal of trouble, whether he tries to run or not.

The bigger issue, then, is whether Trump's iron grip on his cult will weaken or strengthen as we move forward.  And not only do we not know what will happen in general, but we do not even know how to predict whether a Senate conviction will help him with his base or cause them to wander away.

In the end, then, I disagree with the House managers' predictions about the consequences of acquitting Trump.  I understand why they said what they said, and even though I would most likely have done the same, I would understand that I was doing so for rhetorical purposes.  What they (and I) are actually saying is that presidents who incite insurrection should be pursued to the full extent of the law, even when there is not much of an extent to it on the constitutional level.  Why?  Because even a small response is better than no response.
 
Thankfully, there are other ways to pursue justice outside of the impeachment context.  There is already talk of a 9/11 Commission-like inquiry.  There are criminal and civil actions to be pursued.  There will be fights over Republican voter suppression efforts, which will determine whether the 2022 and 2024 elections are merely a sham.  All of those things and more could plausibly be influenced by the Senate's vote at the end of this trial, but no one knows how things will change, or who will be helped or hurt.

The real struggle is against White supremacist autocracy, as embodied by Trump.  And that struggle must continue, no matter how the Senate votes.