Immunity, Impeachment, and Political Killings: It's Even Worse Than It Seems
Not that it is relevant to today's column, but this morning a question popped into my head: Does anyone miss Kevin McCarthy? Didn't think so.
With that out of the way, it is important to return at least briefly to Donald Trump's lawyer's infamous moment in the DC Circuit last week, where he argued that Trump can only be prosecuted for what he does in office if the House impeaches him and the Senate convicts him first. This is based on an utterly nonsensical reading of a sentence (Clause 7) in Article I, Section 3 of the Constitution:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
This says only that the Senate's conviction of the defendant in an impeachment trial cannot send a person to prison. In plain text, it is a limitation on the consequences of impeachment. In no way does it say anything close to Trump's lawyers' version, which is that only someone who has been convicted in an impeachment trial can then be subject to criminal prosecution. Efforts by seemingly qualified scholars to say otherwise are shockingly fatuous.
Again, this clause says: (1) if you are convicted in an impeachment trial, the worst thing that can happen as a consequence of that conviction is that you are removed and disqualified from office, but (2) you can still be prosecuted in criminal cases (under the "beyond a reasonable doubt" and unanimous jury standards). It says nothing at all about people who have not been convicted in an impeachment trial, and it certainly does not say that such a conviction is a condition precedent to criminal prosecution. Textualism!
I emphasize that key point up front not because it is difficult to understand but rather because the big story in the week or so since the DC Circuit's oral argument has pushed that core constitutional idiocy aside. Instead, the focus has -- quite reasonably -- been on a question that Judge Florence Pan posed: "Could a President order SEAL Team 6 to assassinate a political rival?" After Trump's flailing lawyer tried to say that such a President "would speedily be" impeached and convicted, Judge Pan honed the question to its essence: "Could a President who ordered SEAL Team 6 to assassinate a political rival, who was not impeached—would he be subject to criminal prosecution?" Still flailing, Trump's lawyer ignored the import of the question and said, "If he were impeached and convicted first," to which the judge responded, "So your answer is no." And that is indeed Trump's lawyer's answer.
Again, that is the big news, and it would obviously and inevitably draw our attention away from anything so boring as actually understanding what the core constitutional argument is. One argument that has made its way through the noise, however, is that this would allow President Biden (and later President Harris) never to leave office, because they could commit election-related crimes -- including, say, bribing "faithless electors" -- to prevent themselves from losing elections.
Notwithstanding the completely atextual and thus unconstitutional argument offered by the Trump team, there is in the Biden/Harris counter-hypo some reason to think that such a process would indeed work in a reasonable way. That is, although conviction in an impeachment case is not constitutionally required, it would in fact happen to Biden or any other Democrat, because all Republicans and a large number (perhaps all) Senate Democrats would agree that this is anti-American. So even though conviction by the Senate is not in fact required, it "would speedily" happen, because Democrats do not play hardball in the way that, say, 43 Senate Republicans did after Trump's second impeachment trial.
There is, however, an interesting gap in the public discussion about the Seal Team 6 hypo. The most that I have heard any non-Trumper argue is the flipside of what I just said about Senate Democrats. That is, when conviction in the Senate requires 67 votes -- two-thirds of the full 100-seat body -- and when we can be highly confident that at least 34 Republican senators would vote to acquit Trump in any case brought against him, Trump would be politically protected by his sycophantic party. And because of that, he could indeed stay in office for life via criminal means and not be prosecuted if he ever chose to leave office.
Again, that argument has come up frequently in what I have read and watched about this controversy. The gap -- or at least the argument that I have not seen anyone make, although I can hardly claim to have read everything that has been written about this in the last week -- lies in the question of whether Trump would truly need 34 votes to skate. Clause 6 of that same constitutional section reads as follows: "And no Person shall be convicted without the Concurrence of two thirds of the Members present."
Because "the members present" is not necessarily 100, Trump would only need to have more than one-third of the votes of those who are present, not the entire body. And that means that he could, for example, have Lindsey Graham lock the door to the Democrats' cloakroom before the vote. That would be a clearly illegal act, and Trump's order to do so would itself be a crime, but it would prevent him from being convicted in his impeachment trial, so long as at least one-third of Republicans were willing to acquit. And if the numbers were still not quite right, Trump could order people to be detained illegally until the vote was over (or Republicans could do that without even being asked).
Interestingly, the most innovative response I have heard to the question of whether Trump would be convicted -- speedily or otherwise -- came from a stand-up comedian named Trae Crowder, who calls himself the Liberal Redneck. In a video that he released shortly after the Seal Team 6 hypo made the news, Crowder said this: "Who's gonna impeach the guy that's public murdering his political opponents? It's like, you can just murder your way into an unimpeachable position. You can murder every damn one of 'em, if you want to. Why not?"
Exactly. It would not even be necessary to lock out the Democrats, because those who might have too much integrity to acquit but valued their lives (and the lives of their families) would simply stay away. Meanwhile, however, Trump might not take the risk and could have them killed, arrested, or deported.
I have not heard anyone other than Crowder make that point. And although it is possible that I missed something there as well, this seems like the kind of thing that Trump's critics would have jumped on if they had heard it (or thought of it themselves, which I certainly did not do). It is the safest bet in the world that this would be repeated endlessly on MSNBC's shows and elsewhere, yet I have not seen or heard it even once. Odd.
Even short of that, however, I do want to return to the completely absurd constitutional argument on which Trump's lawyers are currently relying. Back in early 2020, when I was one of the few voices arguing that Trump would refuse to leave office and would stop at nothing to win, I anticipated in a Verdict column what I called the "legalistic lawlessness" of a post-rule-of-law America. I wrote in part:
What we now know as the Jim Crow era was in fact a legal system (backed by the use of terrorist tactics) that made it impossible for justice to be done. Changing the rules of contract, property, elections, and especially the criminal law made it possible for the cogs in the machine of injustice to simply fulfill their roles and feel that they had followed the rules. But that cannot be called justice, because it boiled down to saying “the white person always wins, and the black person always loses, no matter the facts.” South Africa’s reviled apartheid system took that to an even more despicable level.
Indeed, many of the most monstrous examples of state-sponsored injustice were built around the pretense of legalistic order. Nazi Germany and the Soviet Union did not simply allow arbitrary actions by state actors—or not only that. Both regimes held legal proceedings (darkly satirized in novels such as Kafka’s The Trial) that made it appear that those were not banana republics.
It is, indeed, generally a priority for lawless regimes to dress up their actions in the garb of blind justice. The Nazis took great pains to document everything that they did and to organize their records, showing an affinity for law-and-order thinking without the bother of justice.
And to be clear, it is not only history’s most notorious regimes that try to pretend to be something other than cults of personality. Garden-variety despotism can readily be presented to the world as justice, as we have seen recently in the whitewash of the murder of the journalist Jamal Khashoggi. It was important to the perpetrators of that crime to pretend to have investigated it and to have “done justice under the law.”
Earlier in that column, I noted that the alternative to legalistic lawlessness is what I will now dub Banana Republicanism, which Trump would clearly prefer. There, even the veneer of legalism is tossed aside, and open despotism ensues. I still believe that Trump would push in that direction, but there are enough Republicans who would want to maintain at least a fig leaf of decency that they would rely on tortured legalisms.
Sometimes, as in the recent pearl-clutching by some supposed liberals about the disqualification clause in Section 3 of the Fourteenth Amendment, even some Democrats (if they are still allowed to exist) would say that the Constitution is not clear enough to stop Trump, or something like that. Indeed, everyone expects the current Supreme Court to rule for Trump and keep him on the ballot precisely because they expect Thomas, Alito, and the rest to craft legalistic language that turns an insurrection into a tourist visit to the Capitol.
What is surprising is that Trump and the Republicans are revealing their legalistic lawlessness strategy so early. Is it truly necessary to their planned overthrow of the US constitutional system to say that Trump could never be prosecuted once out of office without having been convicted in a Senate impeachment trial? Why throw off all pretense now, when the election is still months away?
The only answer that makes sense to me is that they know that they will never allow Trump to lose, so even though his lawyer spilled the beans early, there is no panic among Republicans. The people in the non-Trump world who say that "we should beat Trump at the ballot box, not on a constitutional technicality" have forgotten that Biden did exactly that, and Trump then came within a whisker of pulling of a self-coup. He has shown that he has no intention of failing next time, but those who oppose him still have not taken the gloves off.
And now we have Trump and the Republicans not only calling duly convicted insurrectionists "hostages" but saying openly that he can get away with murder, and there will be nothing legally to be done about it. It is enough to make a sane person think about moving out of the country.