Would You Rather See An Impeachment Trial Or A Criminal Trial? Why Not Both?

It wasn't that long ago that Neal Katyal and Sam Koppelman wrote Impeach: The Case Against Donald Trump. The NY Times published an OpEd by them yesterday Why Congress Should Impeach Trump Again. They contend that because of the tape Trump must be impeached by the House again-- and removed from office by the Senate. They contend that by not impeaching him again, there is a real danger he'll run again in 2024. "Article I, Section 3 of the Constitution," they wrote, "entrusts Congress with the power not only to remove a president but also to prevent him or her from ever holding elected office again." While I think an impeachment against Trump should take half an hour or, at most, an afternoon, Katyal and Koppelman content that an "impeachment inquiry would take time, far more than Mr. Trump has left in office. But it would be well worth it." They want their readers to keep in mind that Trump "has reportedly inquired about the idea of enlisting the help of the military to keep him in power."

The tape and his threats against Raffensperger "may sound familiar, because an eerily similar abuse of power led to Mr. Trump’s impeachment just over a year ago. Senator Susan Collins of Maine explained her vote to acquit him by saying she thought he had learned 'a pretty big lesson.' Clearly, Mr. Trump learned a different lesson-- that he was above the law. It’s just as William Davie from North Carolina, discussing the position of the presidency at the Constitutional Convention in Philadelphia, predicted: A president who viewed himself to be unimpeachable, he said in 1787, would 'spare no efforts or means whatever to get himself re-elected.'"

It’s time for Congress, once and for all, to put an end to this.

No one wants to put the country through the turmoil of another impeachment. But we also can’t afford to look the other way-- for several reasons.

For one, we must establish a precedent that a president who tries to cheat his way to re-election will be held accountable. Sure, this attempt may not have succeeded, but a failed coup should itself be alarming enough. And who is to say there won’t be a closer election in the future, with a more competent authoritarian candidate-- whose party also has control of the House of Representatives? We need to make sure that Congress has ensured that candidates cannot strong-arm their way into re-election.

We also need to set a precedent that a lame duck president can still be held accountable. If an incumbent, say, threatened to nuke Iran unless the Electoral College sided with him, we would want to have a mechanism by which we could remove him from office. In our Constitution, impeachment is that mechanism, but it is worthless if we never use it.

...Senator Mitch McConnell, the majority leader, was able to protect Mr. Trump the last time — no doubt because he was afraid of what a truly rigorous trial might show. But he may no longer be able to do so. For one thing, Mr. Trump will soon lack the power of the presidency to dole out favors and punish his enemies. For another, the Senate composition will be different. Already, Democrats have flipped seats in Arizona and Colorado. Republicans who voted to acquit him, like Pat Toomey of Pennsylvania, have shown signs they are finally willing to stand up to him.

And Georgians will go to the polls to decide who will represent them in the Senate. Mr. Trump’s preferred senators, Kelly Loeffler and David Perdue, would no doubt try to block an inquiry into his misdeeds. But if these senators lose their seats, a full and robust inquiry in the Senate could be the result, with Chuck Schumer as majority leader.

In 2008, a young member of the Judiciary Committee said, “The business of high crimes and misdemeanors goes to the question of whether or not the person serving as president of the United States put their own interests, their personal interests, ahead of public service.” That congressman’s name was Mike Pence-- and he was exactly right.

We need to convict President Trump and make sure he can never call the White House home again.

In her Times column, Michelle Goldberg has a different kind of accountability in mind: criminal accountability and she warns that "if Trump’s Republican Party isn’t checked, we could easily devolve into what political scientists call competitive authoritarianism, in which elections still take place but the system is skewed to entrench autocrats.

She commends Ted Lieu's efforts to get the FBI to open a criminal probe.

But there is little appetite in the House for impeaching Trump again, though he transparently deserves it. (“We’re not looking backwards, we’re looking forward,” Hakeem Jeffries, chairman of the House Democratic Caucus, said on Monday.) Joe Biden doesn’t seem to want his attorney general to investigate Trump, though he’s also said he wouldn’t stand in his or her way. And experts point to numerous reasons federal prosecutors might decline to bring a case.

The first is what we might call the psychopath’s advantage: Prosecutors would have to prove that Trump knew that what he was doing was wrong. “You’re not dealing with your ordinary fraudster or your ordinary criminal or even your ordinary corrupt politician,” said [former Justice Department inspector general Michael] Bromwich. “He seems to believe a lot of the lies that he’s telling.”

There’s also the sheer political difficulty of prosecuting a former president. “My guess is that in the weeks and months that a prosecutor takes to develop a case like that, they’re at the end of the day going to say, ‘The guy’s not in office, nothing happened, we’re not spending our resources on it,’” the Republican election lawyer Benjamin Ginsberg told me. “Which doesn’t take away from the really immoral nature of the call.”

Taken on their own, most excuses for not investigating or prosecuting Trump make at least some sense. Launching an impeachment less than three weeks before Biden’s inauguration might appear futile. It could even feed right-wing delusions by creating the impression that Democrats think Trump might be able to stay in office otherwise. Both the Biden administration and Democrats in Congress will be fully occupied dealing with the devastation to public health and the economy that Trump is leaving behind. Beyond its legal challenges, a federal prosecution of Trump would maintain his toxic grip on the country’s attention.

Yet if there is no penalty for Republican cheating, there will be more of it. The structure of our politics-- the huge advantages wielded by small states and rural voters-- means that Democrats need substantial majorities to wield national power, so they can’t simply ignore the wishes of the electorate. Not so for Republicans, which is why they feel free to openly scheme against the majority.

During impeachment, Republicans who were unwilling to defend the president’s conduct, but also unwilling to penalize him, insisted that if Americans didn’t like his behavior they could vote him out. Americans did, and now Trump’s party is refusing to accept it. It’s evidence that you can’t rely on elections to punish attempts to subvert elections. Only the law can do that, even if it’s inconvenient.