I read a note-worthy piece at the New Yorker by Jeannie Suk Gerson yesterday, titled “The Risk of Trump’s Impeachment Trial” (here: www.newyorker.com/...)(the New Yorker paywall allows 2 free views per month for non-subscribers). I noticed there was a brief write-up of the article in today’s APR. I thought the ideas presented were important enough to deserve their own diary, so I present it here. Anyone who is interested in discussing this further is invited to comment below.
Ms. Gerson begins by noting this second impeachment of Trump is occurring after Trump has left office, and the fact that Trump is now a private citizen will be an important point in his defense. Ms Gerson assures us that the majority of educated legal scholars hold that impeaching someone who is no longer in office is fully constitutional, though it remains a legal point that can be debated. And Trump’s legal response to the impeachment says clearly that since Trump is no longer president, he cannot be removed from office by impeachment, and therefore the senate has no grounds to try him. Trump argues the senate now lacks jurisdiction to try him.
Ms. Gerson then presents three historical precedents of when the federal government sought an impeachment trial of public officials who had left office. None of these precedents resulted in a guilty finding. In one case, a majority of the senators who voted for acquittal offered the rationale that they did so because the defendant was no longer serving in office.
Forty five conservative senators have already let it be known through their vote that the trial for impeachment of a president who is no longer in office is improper and/or unconstitutional. We can expect senate conservatives to offer up a debatable point about the legality of impeaching a president who is no longer in office as a rationale for their vote to acquit. This is a comfortable harbor for Trump supporters who must sail the stormy waters of public opinion.
And this is one reason why this trial of Trump is dangerous. An acquittal based on the (dubious) public rationale that someone who is no longer in office is beyond impeachment sends a clear message to future criminal office holders and seekers: postpone or delay your prosecution until you are out of office. The arguable idea that a president can never be indicted while serving in office will be joined with a second disputable idea that once out of office, a president can no longer be prosecuted. An acquittal of Trump is an invitation to future presidents to commit crimes.
Another danger of this second impeachment is that acquittal means dubious and debatable legal issues become settled fact in the minds of 70 million Trump voters. The second pillar of Trump’s defense will be that Trump has a free speech right to give voice to his political ideas, including the one that he won the election. As Ms. Gerson writes:
“But the question of whether he [Trump] did, in fact, incite violence against the U.S. government is properly evaluated by looking not only at his words but also at his determination to remain in power despite losing the election, and at the tragedy that ensued on January 6th as a culmination of that relentless quest. The defense will argue that Trump’s intent in all his actions was not to tell falsehoods, make threats, or encourage unlawful behavior. The fact that the former President’s best available defense—one that will appear to have been successful when he is acquitted—is that he didn’t believe that he’d lost the election and didn’t know that his followers would become violent against the government he was telling them to fight is a manifestation of how, in our time, willful blindness is rewarded.”
Of course, what is being rewarded is more than willful blindness, but provable fictions. Again, the senate will be sending a clear message to future would-be dictators: lies protect conservatives. Ms. Gerson continues:
“The most demonstrative rejection of the Senate’s authority to proceed against Trump would be for him to decline to present a defense there at all. But his lawyers appear to understand that Republican senators will glom onto the constitutional argument about jurisdiction in order to countenance their votes to acquit, while Trump and his supporters will be able to claim that he won at trial, finding in his acquittal a confirmation of the election-fraud lies that drove some of them to violence against the government. We’ll get the worst of all worlds: a divisive impeachment trial that inflames half the country and that brings no vindication for the other half. Given the importance of condemning Trump’s destructive actions, the message sent by an acquittal may be worse than no trial. And, further, the result may complicate any effort by criminal-law enforcement to investigate and indict Trump for inciting insurrection or even levying war against the U.S. As we look ahead, then, even those of us who supported impeaching Trump for his catastrophically dangerous conduct in January, in the hopes of removing him, might reasonably feel dread at the consequences of trying him for it in February.”
Ms. Gerson has put my private worries into articulate words. Conviction in the senate is a near impossibility. And for too many Americans, the failure to convict Trump will prove to them that Trump really did win the 2020 election.
It has been my feeling that the senate trial of Trump is important as a means of presenting the facts of Trump’s effort to overturn an election and the subsequent physical attack on congress to the American people, and enter those facts into the historical record. Yet sadly, the American people, like the senators, have already made up their minds. Given that an acquittal will itself turn fictions into settled law, is there anything beyond a moral victory that can wrung from this real-world defeat?