The Leading Republican Editorial Magazine
David Marcus at The Federalist replies further to my case for convicting Donald Trump in the impeachment trial (which won’t happen, but should). He does not, however, take on my full argument set forth in two prior columns (here and here), or even link to them, so his readers are at something of a disadvantage in understanding what he’s arguing with.
Marcus argues that distinguishing Trump’s responsibility for the Capitol riot from Maxine Waters’s responsibility for encouraging people to physically confront Trump officials is impossible by any standard, and cites tweets in which I noted one of the distinctions: Trump is being held responsible for violence that actually happened, and happened in the immediate aftermath of his remarks in a location where he sent the crowd to confront Congress and his vice president:
His argument here is that since Waters’ call to action did not lead to immediate violence (although it certainly was a call for aggressive protest), she gets a pass for essentially doing exactly what Trump did. Under this rubric, intention becomes irrelevant. . . . Of course intent matters, and there is not a shred of evidence that proves or even suggests that Trump intended a violent storming of the Capitol. . . . McLaughlin’s [argument] falls apart because it is unable to grapple with the idea of intention, that really only leaves feelings and an emotional appeal. In some sense, it is like the old saw about trying to define pornography, that you know it when you see it. That’s not good enough for an impeachment conviction. It leaves wide open the door for future impeachments of disgust, where no crime or misdemeanor is committed or proven, but sufficient outrage is manufactured. That is not the purpose of impeachment. It is rather the purpose of elections, the opposite of impeachment.
First of all, Marcus confuses feelings with judgment,
which the Framers of the Constitution saw as indispensable to the
process. As I wrote at length during the prior impeachment (see here and here),
the impeachment standard was deliberately open-ended, not limited to
specified constitutional or statutory crimes, but required political
judgment. Alexander Hamilton, in Federalist No. 65, emphasized
that impeachment was aimed at “those offenses which proceed from the
misconduct of public men, or, in other words, from the abuse or
violation of some public trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL,” and in Federalist
No. 66, he chose as his example “betraying the interests of the nation
in a ruinous treaty,” a set of facts which might or might not
necessarily involve treason or bribery. Edmund Burke’s argument about
the British standard, which the Framers explicitly used as their model,
was that impeachments should be “tried before Statesmen and by
Statesmen, upon solid principles of State morality.” That should not, of
course, be an entirely standardless inquiry, but at the end of the day,
in cases where no crime is at issue, it is one of political prudence
rather than law. The high two-thirds requirement for conviction, rather
than a textual limitation, is the chief barrier to its abuse. The
question is not whether outrage is “manufactured” — as it often is in
the press — but whether it is genuinely felt by enough of the Senate and
the public to end up with two-thirds of senators (thus, the
representative of a minimum of 34 states) voting to convict.
Second, as I set forth at much greater length in the prior columns, my argument is not simply that Trump should be responsible for his January 6 speech, but for his entire, unified, six-part course of conduct aimed at a single result: (1) an extended, two-month period of claiming, falsely, that the election was stolen; (2) an extended, two-month election contest that persuaded his supporters that the outcome remained in doubt and subject to being influenced; (3) the use of illegitimate channels and means to extend that contest outside of the legal process; (4) the publicizing and gathering of a crowd to focus pressure specifically on the January 6 elector-counting process, while knowing that there was no legitimate basis to use that process to overturn the election; (5) the specific, unlawful effort to get his vice president, Mike Pence, to thwart the counting of votes; and (6) after all of that stage-setting, the January 6 speech claiming that the nation’s survival as a democracy was in imminent danger requiring the crowd to surge down the street to the Capitol to press Pence and Congress, while knowing that they would discover when they got there that Pence was not playing along. The first five of those stages are the essential backdrop to why the rally and speech had the effect that they did, and why the rioters included people who had come prepared for a riot even before Trump took the stage.
Is this a unique standard? In one sense it is, because Trump’s abuse and violation of public trust involved a form of misconduct of public men that nobody has ever done before, certainly not from the position of the presidency. That requires judgment of the elements taken together, rather than atomized into discrete pieces as if they were not all committed by the same man in succession towards the same goal, so that one can decry the precedent of each individually rather than the precedent of them collectively. The development of the common law of impeachment, upon which the Framers drew, was likewise by means of individual cases; the Framers chose to give that standard rigor by defining two explicit grounds (treason and bribery) and avoiding the low standard of “maladministration” that would allow presidents to be impeached just for doing their jobs poorly. But they left “high crimes and misdemeanors.” Any reasonable view of all six elements here would lead any reasonable statesman to find that Trump abused his public trust, which is exactly what that phrase was designed to capture.
Marcus argues that the Senate “should make absolutely clear that questioning the outcome of an election . . . must never be considered an offense of any kind” — even if those efforts involve a challenge to an election where the outcome is clear, even if the challenge goes beyond the legal processes for an election contest, even if they involve demanding that constitutional officers violate the law, even if they result in violence. This is a repetition of the Clinton-era argument that if something is about sex, even a felony in its pursuit is immune. Under Marcus’s proposed standard, no president could ever be impeached even for treason or bribery — even for ordering the army against the Congress — so long as he stated that he was doing so to “question the outcome of an election.” If Trump had literally handed Georgia secretary of state Brad Raffensperger a bag of cash to change the outcome in that state, Marcus’s standard would absolutely prohibit the Senate from convicting. This is precisely how democracies die all the time in the Third World. No serious person thinks the Constitution was written to immunize all misconduct in election contests.
Third, I do not think it unreasonable to apply a higher standard to abuses of public trust that end in disastrous consequences — the Capitol sacked, people dead, the constitutional vote-counting process interrupted — than those that do not. It is a basic reality of politics that you are more likely to be held accountable for misconduct that ends badly. That is a known risk.
Fourth, Marcus says that I am ignoring “intention.” But of course, that makes him, not me, the one arguing for a subjective standard based on feelings about what Donald Trump really wanted. My view is based on what facts were reasonably known by the president, what acts he took, and what results those acts produced, not what he subjectively believed in his heart or wanted to happen. A Democrat could just as easily say “Trump has a bad heart, Maxine Waters has a good heart,” and we are back in the realm of feelings rather than verifiable fact.
Fifth, I do not argue that Waters should be let entirely off the hook. The Democrats have voted to strip Marjorie Taylor Greene from House committee assignments based entirely on the majority party having the votes to disapprove of her, solely on the grounds of things she said before entering Congress. (I favored Greene being punished by the Republican caucus, on grounds that she should not represent the party; the House as an institution punishing her is a very different and more ominous precedent.) Waters can, and should, face precisely the same treatment the minute Republicans regain the House majority, for her 2018 comments and a long list of others dating back to the L.A. riots in the early 1990s and including as well her baseless objections to counting George W. Bush electors in 2005 and Trump electors in 2017. But while Waters is a fair comparison to Greene, she is not a fair comparison to the full six-part scope of Trump’s misconduct, committed while serving in the highest office of public trust in the land.
The great danger of this impeachment trial is not that it will set too low a bar, but too high. Having acquitted Bill Clinton for committing actual, statutory felonies, and Trump for abuse of office to pressure a foreign leader (unsuccessfully) to do favors for his personal attorney, and now Trump again for a sustained assault on the democratic transfer of power that ended in violence inside the Capitol, it is hard to see what will remain of “High Crimes and Misdemeanors” for any future Senate to convict any future president. We will be told that impeaching a sitting president is a coup that deprives the people of their chosen leader, and impeaching one who has left office is too late; that you can’t impeach for crimes, and you can’t impeach without crimes; that you can’t impeach for attempts that failed, and you can’t impeach for things that actually delivered terrible results. This is not the state of things the Framers intended. And given how Trump’s extended course of conduct directly threatened the process for transferring power, it will deprive us of an important means to protect the republic they bequeathed us.
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