Will Trump be convicted in the Senate? Probably not, but impeachment is still important.
February 9, 2021
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Former President Donald Trump’s impeachment trial in the Senate begins Tuesday. Whether the trial matters at all is an open question.

Impeachment requires a two-thirds majority in the Senate, and it seems clear that there aren’t currently enough votes to cross that threshold. In late January, 45 Republicans voted for Sen. Rand Paul’s (R-KY) motion to dismiss the entire idea of trying a former president as unconstitutional — far more than the 34 votes necessary to block conviction. “If you voted that it was unconstitutional, then how in the world would you ever hope to convict somebody for this?” Paul asked afterward, rhetorically — and he had a point.

Of course, many of these Republicans understand perfectly well that Trump’s conduct before and during the Capitol insurrection is indefensible. But, afraid of the backlash from their base, they plan to acquit anyway, seizing on the questionable constitutional argument to avoid having to defend Trump on the merits.

This, somewhat paradoxically, is why the trial really does matter. Not because it will succeed in punishing Trump, but because it likely won’t.

The central fact of American politics today is that one of the country’s two major political parties is broken. Not merely wrong, but broken in a fundamental way, hostile to democracy and incapable of serving as a good-faith partner in governing.

Trump repeatedly attempted to overturn a legitimate election, an effort that culminated in inciting a mob that threatened the lives of members of Congress. Yet Republicans in that body cannot bring themselves to inflict the appropriate constitutional punishment for this kind of offense even after he has left office and is no longer needed to get judges confirmed and tax cuts passed.

Democracies require accountability to function. Political elites must be held responsible for grievous errors and punished accordingly. The GOP’s decay has destroyed this possibility — but the Senate trial is a necessary step toward fighting back.

Congress Holds Joint Session To Ratify 2020 Presidential Election

Pro-Trump rioter Jake Angeli inside Congress on January 6.
Win McNamee/Getty Images

This is true even though the trial likely won’t persuade a single Senate Republican to change their vote. It probably won’t even persuade many ordinary Americans to change their minds.

But in failing, the Senate trial will serve a necessary function. It will show that, even in the dramatic case of outright insurrection against the US government, the country’s political system is incapable of holding elites accountable largely due to one party’s extreme partisanship. Demonstrating this will serve as a justification for people, Democrats and civil society alike, to take more dramatic steps to repair American democracy down the line — including pushing for significant reforms of the political system.

Democratic political systems aren’t saved by one dramatic action. They are rebuilt through an iterative process in which different parts of the country’s system work to restore credibility and rebuild consensus around democratic norms. Attempting to hold Trump accountable — even as that effort seems doomed — is a part of that broader project.

Some things are so important that they need to be tried, if only to show that you did.

We need to look back

Some observers — and not just partisan Republicans — are looking at the dismal chances of Senate conviction and concluding that impeachment is a waste of time.

“President Biden has a long list of things he wants to accomplish,” the journalist Michael Kinsley writes in Persuasion. Impeachment “won’t shorten Trump’s term by so much as a day, or improve the chances for Biden’s agenda by 0000.01%.”

This is the same logic the Obama administration employed 12 years ago when it chose not to push for criminal investigations into the architects of George W. Bush’s torture policy: “a belief that we need to look forward as opposed to looking backwards,” as President Obama put it at the time.

The logic is seductive, especially for new leaders like Obama and Biden who are tasked with cleaning up the messes their predecessors left behind. But Obama’s refusal to prosecute torture, despite strong evidence of high-level criminal behavior, is now seen by many experts as a mistake. It was a major contributing factor in creating a general climate of impunity in the United States in which elites suffer few personal consequences for behavior with tremendous consequences for society writ large.

“If there’s a culture of impunity, it started there,” Kathryn Sikkink, a professor at Harvard who studies human rights prosecutions, tells me.

Demonstrators dressed in Guantanamo Bay prisoner uniforms march past Capitol Hill in Washington, DC, on January 9, 2020.
Brendan Smialowski/AFP/Getty Images

There are many reasons the January 6 insurrection happened. But one of them is that President Trump and his allies felt confident that, in the United States, people like them would suffer few consequences for their behavior — no matter how egregious it was, even to the point of threatening the stability of the democratic political system itself.

“I think Trump and co. also figured there would be little consequence for trying and failing. I.e., a failed putsch would be cheap, at least for them personally. This is why it’s so important to punish them,” writes Jay Ulfelder, a scholar of democratic breakdown at Harvard’s Carr Center for Human Rights. “If you want to deter them from trying this crap again, you have to change their expectations about how painful it will be to try again & fail.”

So how do you get real accountability for Trump? Here, it’s worth turning to the late Guillermo O’Donnell, one of the leading scholars of imperiled democracies in Latin America.

O’Donnell distinguished between two broad ways to punish politicians for misbehavior in a democracy. “Vertical accountability” is when citizens hold government officials accountable; “horizontal accountability” is when government officials hold one another accountable. A fully stable and healthy democratic system, according to O’Donnell, has multiple mechanisms of accountability — a series of overlapping vertical and horizontal checks on power aimed at preventing any one official or branch of government from abusing their authority.

Elections are the primary mechanism of vertical accountability in a democracy, a direct method for the people to reward or punish elected officials based on their performance. But electoral defeat, even the loss of both the presidency and the Senate, failed to deter Trump and his GOP allies from engaging in anti-democratic behavior. In fact, electoral defeat is what caused the president’s actions: He was rebuked by the voters and tried to seize power anyway.

In cases of such severe anti-democratic behavior, horizontal accountability becomes even more important. Political elites have to hold the line and be a check on one another to ensure this doesn’t happen again.

This is the simplest case for impeachment. In the American political system, the constitutional remedy for presidential misconduct is impeachment. Trump’s behavior in this case plainly amounts to “high crimes and misdemeanors”; the House has a moral obligation to impeach him, and the Senate has one to try and convict him.

This case holds even if the infliction of concrete consequences — convicting Trump and barring him from future office — is unlikely. It’s important to try working through the available legal mechanisms for accountability before moving to something more radical.

Like changing the laws themselves.

Republicans need to face the consequences, too

The need for some kind of consequences also gives rise to the strongest objection to the Senate’s impeachment push: Whatever the intentions, acquittal would actually reinforce elite impunity rather than undermine it.

Trump, of course, had already been impeached and acquitted once before. The last impeachment also focused on an attack on election integrity: his attempt to strong-arm the president of Ukraine into opening up a criminal investigation into Biden during the 2020 election cycle. His Senate acquittal in that trial seems to have convinced him that he could get away with anything so long as he had the support of 34 senators — and, indeed, it seems like he may well have been right.

So wouldn’t another acquittal just reinforce the same point, providing further evidence that elites really are immune from consequences?

This logic only holds if you assume that impeachment is the end of America’s reckoning with the Trump legacy. But this is a mistake.

Trump’s impeachment helps underscore the nature of America’s current impunity problem. It is not merely that elites protect their own, though that’s certainly part of it. It’s that one of the country’s two political parties simply does not think that what he did was bad enough to warrant taking on any level of political risk to punish it. That democracy itself was attacked — that they personally were attacked — is less troubling to them than the prospect of a Trumpist primary challenger.

Tackling impunity and restoring accountability isn’t a mere matter of seeing some tangible punishment inflicted on President Trump: It means identifying and punishing those who have excused and defended him, foremost among those being a Republican Party that (as I’ve argued for years) has been taken over by its authoritarian, far-right elements. They permitted Trump’s misbehavior for years because the base loved it and it was politically useful for the GOP leadership; now, even after Trump is out of power, the same forces conspire to prevent accountability.

Congress Holds Joint Session To Ratify 2020 Presidential Election

Sen. Josh Hawley (R-MO) speaks during a Senate debate session to ratify the 2020 presidential election at the US Capitol on January 6, 2021.
Congress.gov/Getty Images

The problem of a broken political party is not the sort of thing that you fix in one fell swoop. There are no West Wing solutions, a decisive meeting between Biden and Mitch McConnell where the president’s sweeping rhetoric convinces his rival to turn the GOP around. What is necessary, instead, is multi-front and sustained efforts by different parts of American society — Democrats, sure, but also civil society and ordinary citizens — to try to repair the cracks in America’s pro-democracy consensus.

Political scientists sometimes describe democracy as an iterated game: a group of people playing the same game over and over again together and adjusting their expectations of the rules accordingly. Every action changes the way people see each other; over time, even small actions add up to ones that define the game’s new rules.

The Senate impeachment trial is one of those little actions. Trump’s all-but-certain acquittal will help demonstrate who Republicans are and what they are willing to tolerate. It will equally show that Democrats are willing to devote energy and time to punishing them for it. It will send a signal that at least some elements of the American political system care about accountability.

And, perhaps more importantly, it will also help serve as a justification for bigger things down the road.

In classical just war theory, there’s a view that going to war can only be justified if it’s a “last resort.” Because armed conflict necessarily involves significant death and suffering, a country can only be justified in beginning one if it has tried every other feasible option — diplomatic negotiations, economic sanctions, etc. — for solving its dispute with another country.

To really fix America, Democrats need to engage in a kind of partisan warfare: They need to inflict costs for past misbehavior not only on Trump, but on the Republican Party that enabled him. Most fundamentally, they need to roll back the anti-democratic practices — like extreme gerrymandering and voter suppression tactics — that permit Republicans to remain competitive while appealing primarily to the most reactionary elements of the American public.

There are no costs that politicians pay attention to more than electoral ones. And if Republicans can’t win in the future by embracing leaders like Trump, they won’t be so comfortable excusing anti-democratic abuses down the line.

The tactics Democrats will need to employ in doing this — most notably, radically revising the filibuster to allow the passage of pro-democracy legislation along party lines — will seem extreme. But they will be more justifiable, including to moderate Democrats like Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ) — in a world where it’s clear that the normal levers of political accountability are broken. It is a way of showing that radical procedural reforms really are a “last resort.”

So failing to convict Trump again will further underscore that impeachment is a paper tiger, at least for Republican presidents. But that horse is already out of the barn. Trying and failing once again, when the anti-democratic offense is much greater and the cost to Republicans for convicting is much lower, will help underscore just how deeply complicit they are in the events of January 6 — and build the case for others, Democrats and non-politicians alike, to punish them accordingly.



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