The argument for Trump’s acquittal is, in essence, the argument of nihilism and despair.
The argument for Trump’s acquittal is, in essence, the argument of nihilism and despair.
J ohn Davidson, writing in the Federalist, responds to my column arguing that the Senate should vote to convict Donald Trump in his second impeachment trial. Ben Domenech, the site’s publisher, chimed in as well with a column blasting Mitch McConnell for signaling that he thinks Trump should be convicted — although McConnell has since joined Tuesday’s vote to end the trial on grounds that Trump is now out of office. While it now appears likely that the conviction vote will come up well short of the required 67 senators, it is still worth taking the debate seriously. I respect Davidson and Domenech, but we obviously see the stakes here quite differently.
Why We Must Respond
To begin with, it is worth considering what Davidson and Domenech do not say. A central pillar of my argument — which informs my entire analysis of the situation — is the extraordinary, unique offense of the Capitol riot of January 6, and the mortal danger that mob violence aimed at the pressure point of the seat of the national government presents to our American system. The riot targeted and interrupted a core constitutional process. It sent the vice president and many members of Congress scurrying for their personal safety. It beamed around the globe the spectacle of the world’s oldest republican system for the peaceful transfer of power being brought to its knees by a mob of supporters of the sitting president. It trashed the Capitol and left multiple people dead. Many things like this have happened in other countries in our lifetimes; nothing like it has happened to our national government since a mob surrounded the Congress in 1783, leading the Founding Fathers to flee Philadelphia and write into our Constitution four years later a guarantee that the Capitol would always have its own federal district in order to preserve its physical security from the mob.
My premise is that this sort of extraordinary threat requires, from Congress, an extraordinary response. Such a response should give examples visible to all, for all time, in unmistakable terms, that the American way will lay waste without fear or favor to all those who try to obstruct it. Davidson gives only a brief nod to the danger of the riot, Domenech none at all. America has, as I noted, a long Jacksonian tradition of making vivid examples to counter threats to the nation and the system. It was precisely that reasoning that supported Trump’s own family-separation and border-enforcement policies, which gave no quarter to innocent children in pursuit of vindicating the sanctity of the border. Is the sanctity of constitutional democracy a lesser thing?
What Davidson and Domenech appear to recommend is that we address such threats timidly, playing against the mob by Marquess of Queensbury rules. That means applying the narrowest possible sanction on the narrowest possible targets. If all we do as a nation is lock up some individual pelt-wearing yahoos and cringe in fear from holding a public man to account for a catastrophic abuse of leadership in public office — if we have one law against the common man, another for the elite — we will have failed to deliver that message. If you take this from an American national perspective rather than a narrowly partisan one, that ought to be obvious.
I have labored, for the past five years, to separate reasoned critiques of Trump from hair-on-fire alarmism. Many of the things Trump says are corrosive of the norms, institutions, and processes on which America’s constitutional republican democracy rests, but they are not, by themselves or even taken together, existential threats. They have not been the coup attempts and goose-stepping tyranny that the Left has so often claimed (see Ilya Shapiro on the dreary normality of Trump’s actual constitutional violations). I was opposed to removing Trump in the Ukraine impeachment, even though I believed that he had committed an arguably impeachable abuse of power, because the violation was in the gray zone of non-criminal abuses, the public was evenly divided, and an impending election would give the voters the final say (which they used). As recently as mid December, I argued that impeachment was a political loser, and its recurrent failure should counsel more caution in using it again. What we witnessed on January 6, however, was categorically different, and requires a more vigorous, less timorous, response.
And one man above all others was responsible for inspiring it and setting it in motion.
Why Trump
Kay Adams: Do you know how naïve you sound, Michael? Presidents and senators don’t have men killed.
Michael: Oh. Who’s being naïve, Kay?
Davidson argues that Trump bears no responsibility for what happened. On Twitter, he claimed that the “short version” of his argument is that “this isn’t about objective wrongdoing on Trump’s part & Republicans shouldn’t try to convince themselves it is.” But that is precisely what my argument is about. There is objective wrongdoing by Trump, without which the Capitol riot does not happen, and which created the conditions in which such a riot was not only possible, but likely.
Davidson makes three arguments. One, he argues that Trump did not explicitly call for violence, did not know beforehand of plans for violence, and sprinkled into his hour-long remarks a few scattered references to peaceful protest. This would be all you need to say, if impeachment were a strictly legal process requiring the elements of a statutory crime. But that is not what the Constitution requires, and not how the Founders understood its purpose. It extends as well to the political conduct of public men, as Hamilton reminded us. It aims at accountability for the abuse of office. Its British forbearer was, as Edmund Burke argued, intended for matters of public accountability “tried before Statesmen and by Statesmen, upon solid principles of State morality.” It is hard to think of any abuse of high office, short of treason itself, that would have alarmed the Founding Fathers more than inspiring a mob to target the democratic transfer of power.
Did Trump do that? Unquestionably. I walked in detail through his speech that day, and asked:
If you heard and believed every word of this speech, coming from the president of the United States . . . what would you do? Would you believe that the time had come to take up arms to save your country and democracy? A lot of Americans, people of good will, very well might.
Neither Davidson nor Domenech answers that question. Neither deals with the speech or its claims at length, falling back on generality and euphemism. Davidson says that my view “boils down to arguing that because people feel strongly about elections, Trump should have toned down his criticism of election fraud because some radicals in his party might get crazy ideas about storming the Capitol.” But in fact, as the president, he should not have said those things while setting a crowd in motion toward the Capitol with the aim of getting them to pressure Congress and the vice president in the midst of the counting process. You cannot extract Trump’s speech from the time, the place, and the context in which he chose to make it. Nor can you present it as some sort of generalized critique of election integrity, when it bluntly asserted that the stealing of an election was ongoing just down the block, and that Trump expected the crowd to participate in stopping it.
And consider: There was much more than just that one speech. Trump took all five of the following steps, and took them from the unique bully pulpit of the presidency:
- Trump spent two solid months claiming, loudly and falsely, that the election was stolen. He did this via a constant drumbeat of particular claims from himself and his legal and campaign teams that were either unsupported by evidence or flatly contradicted by it. Even when claims were proven to be egregiously false, he continued to promote them.
Davidson argues that Trump is not responsible for people believing the things he said — as if nobody really listens to Trump. But by saying these things so prominently, Trump not only contributed to their belief, but sent a signal for other influential voices loyal to him to spread them. It is hard to be so naïve about modern political communications as to take seriously the argument that presidents have no impact either on what their supporters believe or what their party or their formal and informal media surrogates argue. - Trump continued to contest the election result through every available forum for two months. He went far beyond just talking. By continuing the process, even long after the exhaustion of all its legitimate avenues, Trump kept alive the cause and the reason for people to believe that overturning the outcome might succeed. Davidson suggests that Trump is not responsible for people believing, on January 6, that it was still possible for action of the vice president or Congress to result in Trump prevailing over Biden. But why were they there? Had Trump conceded, had he ended the process of contesting the election, had he not specifically told the crowd that day that the outcome was still capable of being changed, does anyone seriously believe that there would have been such a large, restive crowd descending on the Capitol that day? Do we really think that Trump is so bereft of influence and devotion? Do we really think that so many Americans routinely show up on the day the electoral votes are counted to protest?
No similar violence, and no similar mass crowd protest, happened in 2005, when multiple congressional Democrats pitched a fit at the electoral count — because John Kerry had thrown in the towel, rather than publicly holding out hope that the outcome would change. The different result derived from different actions. - Trump did not limit his contest of the election to the legally legitimate channels for an election contest. Firing people up with lies during a legitimate process is, up to a point, politics as usual. But in Trump’s case, he pressured state legislators (who refused to go along) to overrule the verdict of the voters. He leaned on state election officials to come up with changes to the vote totals based on theories that were flatly contradicted by the evidence. He demanded that state governors call their legislatures into special sessions, for the purpose of pressuring them to overrule the vote counts without competent evidence. He may evade prosecution in any courtroom for these anti-democratic acts because he believed his own propaganda, but that should be no defense in a political accounting of his leadership.
At the time, I scoffed at the idea that this amounted to a coup, because a coup would require other Republicans to collaborate, and at every key point, they refused to do so. But had he pulled these steps off, it would have been a coup. Neither Davidson nor Domenech addresses those steps, or why it should be considered acceptable or irrelevant that Trump tried to take them. The fact of doing so — while knowing full well that these demands were entirely improper — was not only an ongoing campaign to subvert constitutional democracy; it also sent a clear signal to those paying closest attention that the usual rules of accepting a peaceable transfer of power were out the window, and extraordinary action was called for. - Trump focused attention on the in-person gathering of the entire Congress and the vice president to count the electoral votes on January 6 as a point of vulnerability to popular pressure. He chose this occasion to assemble an in-person crowd within walking distance of the Capitol, hyping it up on his social-media feed to ensure the presence of an angry assemblage, and far enough in advance to allow that crowd to include not only polite and peaceful protesters but also the sorts of people who would show up (as they did) loaded with gear for trouble. It is worth recalling that, with no competing legitimate slates of electors, there was no legitimate basis for anything to happen on January 6 besides the ministerial act of opening the votes and counting them.
Again, I scoffed at the idea that this was a coup, but again, only because I knew that not enough Republicans would go along to actually deliver the fundamental violation of American democracy that Trump was demanding. Yet again, Trump was setting up a collision course between high expectations that something could be done that the law does not permit, and an angry crowd that would be left to believe that an election had just been stolen in their physical presence if Congress followed the law. - Trump specifically violated his oath to the Constitution by the attempt to get the vice president to unilaterally prevent the counting of electoral votes. Mike Pence had no such power under the Constitution. Again, had Pence cooperated, we would recognize this as extralegal action to overturn the democratic process. Because he did not go along, what happened instead was that Trump built up the expectations of the crowd that Pence could save the day, then sent them down Pennsylvania Avenue knowing full well that they were about to discover when they got there that he had not. This predictably led to people focusing their rage in real time into a physical search for the vice president, while the Secret Service was hustling him to safety.
Davidson characterizes this course of events as just “criticism of election fraud” that Trump could have “toned down,” and says that I think Trump “should be impeached and convicted because he didn’t press his case in just the way you prefer.” But when you consider all five elements — false claims of fraud, a frivolously extended contest period, the use of illegitimate means and pressure in the states, the advance selection of a further — illegitimate — showdown on January 6 with a crowd adjacent to Congress, and the creation of a collision between the crowd’s expectations and yet another legally baseless demand on the vice president — what comes into view is much more dangerous and combustible, in ways that would be familiar to observers of unstable regimes, and unfamiliar only to those insistent on looking so closely at individual trees as to deny that they are in the middle of a forest.
Those five stages taken together fatally undermines Davidson’s effort to locate a parallel:
Vice President Kamala Harris raised funds to bail out BLM arsonists and looters in Minneapolis. Should Congress hold her responsible for widespread destruction in that city over the summer? Pelosi called federal officers in Portland “stormtroopers” back in July and said they “must be stopped” even as violent riots were shaking the city. Did she put federal officers in danger? . . . During a presidential debate, then-candidate Biden said Antifa was just an “idea” even as Antifa thugs were besieging the federal courthouse in Portland and attacking federal law enforcement officers there. Should he be impeached for “inciting” that “insurrection”?
These are all things richly deserving of condemnation, as are many other examples one could think of from Left and Right alike that used baseless charges of stolen elections and fantastical conspiracies with elusive Russians, or that ended in violence. But even leaving aside the fact that Joe Biden cannot be impeached over actions he took while he was not holding federal office, none of these examples come close to the combined effect of word and deed in a sustained, false challenge to a democratic election, the effort to pressure multiple points in the system to violate their own oaths of office, and finally the choice to target with mob pressure the one gathering at which the vice president and the entire legislative branch would be in a single location to perform the last act of the Electoral College process. There has been nothing else like this in American history, and we should act as if we mean business to ensure there shall be nothing else like it ever again.
This is also the answer to Davidson’s second objection. His concern is that my focus on a course of conduct, rather than a single, discrete event, is “really no standard at all — or rather it’s such a plastic standard it could be bent to fit just about any accusation of incitement or reckless endangerment, however far-fetched.” But that is not my argument. Yes, it is true that we should be cautious about throwing together “course-of-conduct” arguments that vanish the elements of an offense in a fog of rhetoric and a blizzard of obliquely related complaints. What president has not engaged in a course of conduct that looks nefarious in the eyes of his sternest critics? I take seriously the importance of having a rigorous standard for the application of extraordinary remedies such as the impeachment of a president, whether or not he is still in office, and the disqualification of public officials. I have argued against using Section 3 of the 14th Amendment against Trump in this situation for precisely this reason: There are legal elements, and they are not met.
But even in the law, there are times when a series of related actions aimed at a single objective amounts to more than the sum of its individual parts. The laws of conspiracy, antitrust, and racketeering all work this way; so even do more traditional legal doctrines such as the failure to adhere to a contract in good faith. Those five steps taken together created a moment of unprecedented danger that American democracy could be broken on the wheel of mob action, and could easily have ended in much worse than the chaos, carnage, and death that they produced.
There is also Davidson’s third defense: that there were many irregularities in this election (most notably changes to several states’ election laws and procedures without the consent of their legislatures), which produced reasonable skepticism and disquiet in the public and justified Trump in saying and doing something to protest it. Framed in such general terms, I agree. But that is not at all a fair description of what happened.
The persistence of an election contest is not a complaint, not a speech, not an investigation, not an inquiry, and not an audit. It is a legal and political demand that courts, legislatures, and/or elections officials actually alter the outcome and award power to a different person. It is an assertion that the wrong winner was given — or stole — power. That is a very big deal. It is different in kind from just claiming that an election used improper procedures. Of course, because the legal process begins immediately after the voting, we give some leeway to candidates who invoke the process after close elections more in the hope of finding enough votes than in the knowledge that they are out there. But a merely hope-based process brings with it an obligation to drop it when the evidence is not there. It is indefensible to contest an election when there is no hope of overturning it. Davidson tries to have it both ways on this binary choice:
The November election was indeed marred by fraud and irregularities, the predictable results of loosening election-integrity laws and recklessly expanding mail-in voting. The pandemic was the perfect excuse to conduct what amounted to an unprecedented experiment with mass mail-in voting, and Democrats used it to their benefit. Those are facts. Maybe it was enough to change the outcome of the election, maybe not.
If you take a step so extraordinary as dragging out the contest of a national election for two solid months, you damned well better have more in your pocket than “maybe it was enough, maybe not.” Davidson goes on to bait-and-switch my position with that of Erin Burnett, for some reason, and suggest that I am arguing (as I have never argued, and in opposition to what I have argued) that “there’s no reason whatsoever to talk about election integrity or draw attention to these issues by protesting.” The protesters on January 6 were not assembled to “change the law” or to “improve election integrity,” they were there to “Stop the Steal.” They were told, by the president of the United States, that an election was being stolen right down the street, and that this was a banana-republic process that would end their country. He told them explicitly that it was a matter of “national security” to prevent it from happening.
Davidson presents a familiar false choice, and the same false choice that Democrats always use when yammering on about “voter suppression” or “collusion” to delegitimize election outcomes without actual evidence that any misconduct changed the outcome. The mere fact that some people believe a thing does not make it true. And feeding that belief, when it is demonstrably not true, plays with fire.
Trust in the institutions and processes of democracy is essential to the survival of a political system that transfers power back and forth according to election results. Pouring acid on that trust is dangerous. Of course, mistrust of our system from all sides existed before Trump, helped produce Trump, and continued to be degraded by Trump’s foes in 2020. But there is simply no parallel to what Trump did, and if we take with even the slightest seriousness the idea that an oath of office carries any obligation of leadership and responsibility, he should be expected to be the one to face the music when the end of that wholly unprecedented chain of actions leads to a wholly unprecedented event of great peril and shame to the Republic.
It Takes Two for Unity
Now, we come to the main argument made by Domenech: that it would be politically inexpedient for individual Republicans, and bad for the party as a whole, to hold Trump responsible. It might even cause Trump to start a third party out of spite:
[If] Republicans in the Senate . . . eliminate the possibility of a Trump comeback in 2024 . . . doing so would also obviously encourage the destruction of the Republican Party. I can think of no single act that would do more to increase the likelihood Trump forms a third party . . . So let’s not play pretend. A push for impeachment doubles down on the corporate donor loss with an online donor loss and a devastating hit to the ability to channel Republican rage toward electoral benefit. It is an act of political suicide.
I can think of one act more likely to lead to Donald Trump forming a third party: Donald Trump forming a third party. Notice what never appears in Domenech’s or Davidson’s analysis: any suggestion of how Trump should act. Domenech implicitly assumes — as does Davidson — that Trump is beyond reason, beyond persuasion, and will take whatever action he wishes without regard to the best interests of his voters, the party, or the cause. Trump, we are told, cannot control his impulse to go Samson-in-the-temple if we try to impose the one and only cost on the riot that will make a permanent impression. All one can do is appease him and hope that this will be the last demand he makes. If you pay the Danegeld this one more time, you will be rid of the Dane.
Domenech used a similar framing on Twitter:
Rather than channel Republican voter rage toward a midterm to win back the majority, some people seem to be calculating the GOP is better off splitting on impeachment and putting 2022 candidates at risk of a serious primary. https://t.co/98siR0q0yr
— Benjamin Domenech (@bdomenech) January 24, 2021
As it happens, the argument for just letting go of all the pro- and anti-Trump grievances, uniting the party, and moving forward to vent our collective frustrations against the Democrats instead is highly appealing to me. It is exactly what I argued for in the immediate aftermath of the election. The Federalist itself published a fine piece just weeks ago making much the same argument: Leave the Trump, take the cannoli.
It was Trump who set about a two-month campaign to make that impossible. It was Trump who put one Republican after another to the test of demands that they violate their oaths of office, adhere publicly to untruths, and disregard the expressed will of their own states’ voters. And when most of them refused, it was Trump who declared open war on those Republicans, even previously faithful supporters such as Brian Kemp. Just to pick one example of so many, Trump called publicly for Kemp’s resignation a week before the Senate runoff in Georgia. This was one of a long train of deliberate divisions and demoralizations of Georgia Republicans by Trump’s protracted election contest that contributed enormously to the loss of two Senate seats on January 5. Trump also fell out with Doug Ducey, the last big statewide Republican standing in Arizona, and the drawn-out election contest triggered state chair Kelli Ward’s effort to censure her state’s own governor. Trump now appears to be already bent on destroying Kemp, Ducey, and Georgia secretary of state Brad Raffensperger, and has been since well before anybody was considering impeachment.
Arguing that Trump’s drive to use primaries or a third party to burn down Republicans and hand elections to Democrats is the result of impeachment is an inversion of reality. No serious person believes that this will be Trump’s last demand or will prevent him from carrying out destructive vendettas against Republicans in the future. And neither Domenech nor Davidson even pretends that there is any point appealing to Trump’s concern for the voters or the party.
The House of Other Representatives
This brings us to Domenech’s final point: that the only job of senators is to do what their party’s voting base wants at a particular moment in time. “One cannot dissolve the people and elect another. Your job is to represent them.” Put more crudely, on Twitter:
If National Review wants to die on the 197-10 hill with douchebro Adam Kinzinger, be my guest. https://t.co/kjmVHNsBx5
— Benjamin Domenech (@bdomenech) January 18, 2021
That may well be one way of looking at the job of the House, where simple partisanship — especially on oversight matters — has always been the dominant trend in any party. Although if we take the view that the majority of a party caucus is always right, there is hardly much point in making arguments about what choices the caucus should make (which Domenech does at the start of the same article, arguing that the Senate Republican caucus was wrong on the second round of COVID-relief checks).
Also, Domenech’s notion that Trump and his hold on voters are so powerful that fear of his displeasure should deter Republicans from ever crossing him or holding him at all accountable for his own individual misconduct is at odds with Davidson’s simultaneous argument that Trump has so little influence that it would be unreasonable to think that his words and deeds have any effect whatsoever on what his supporters believe or how they act.
In either event, it is a curious way to talk about the Senate, which was never designed solely to be a second House of Representatives. One might even argue that senators are supposed to give some consideration to the interests of the United States, or at a minimum, to interests of their party over a longer term than two years. Senators who will never place good policy decisions over the risk of some short-term political blowback, and will never go out on a limb to protect institutions, process, or traditions, are highly unlikely to ever stand up for doing anything consequential for conservatism.
In partisan terms, the problem with identifying the party’s long-term interests with active and continuing personal defense of Trump, and with a reflex to appease Trump’s bullying in service of his personal interests no matter what he may demand in the future, is that it takes the outcomes of the 2020 election — a Democratic president, a Democratic House, a Democratic Senate — as the Republican ceiling, walling off the party from voters who may be open to the party’s message on policy but who are turned off by Trump himself. It allows the Democrats to keep dragging Trump back into the spotlight, knowing that every attack on him will force Republicans to defend him and keep Democratic turnout high and Democratic donor money flowing — in other words, to impose on Republicans all the downsides of being forever the incumbent party, with none of the advantages.
Censure or Retreat?
Given Tuesday’s vote, it seems all but certain that Trump will be acquitted by the Senate with only a handful of Republican votes to convict. Only five Republicans voted to continue the trial, all of whom are the people you might expect: Mitt Romney (already the only senator in U.S. history to vote to convict a president of his own party), Susan Collins (freshly reelected in a blue state and a frequent defector from the party), Lisa Murkowski (who was primaried out of the party in 2010 and got reelected anyway as an independent write-in), Pat Toomey (who is retiring), and Ben Sasse (who was just reelected by twice Trump’s margin in Nebraska and feels free to go his own way). Rob Portman, also retiring, seems to be the only other Republican who has not firmly committed to an acquittal. Assuming that all 50 Democrats vote to convict, Trump would be the second impeached president, after Andrew Johnson, to have a majority of the Senate vote for conviction. Trump drew 48 votes for conviction for abuse of power last February, and Bill Clinton drew a 50–50 split for obstruction of justice in 1999. But that would be a Pyrrhic victory for impeachment.
Collins and Tim Kaine are reportedly working on a censure resolution, which would be better than nothing in terms of consequences, but worse than nothing in partisan terms, angering Trump without taking away any of his power. You shoot at the king, best not to wound him. It seems likely to go the way of censures offered as alternatives in 1999 and 2020. The time to pass a censure is before an impeachment passes the House; there is little incentive for compromise once a trial begins and it becomes apparent that there are not enough votes for conviction.
One might say that Democrats mishandled the impeachment, but that assumes that they ever had any interest in conviction. They do not. It is Republicans who would benefit from Trump being formally sanctioned. For the Democrats’ purposes, an acquittal voted by Republicans is the best of all worlds. It compels the party to take ownership of Trump’s indefensible post-election conduct, which so many Republicans worked so hard to avoid doing, and which Trump worked so hard to force them to own.
None of this should be celebrated or defended as anything but a surrender of public responsibility. The argument for acquittal is, in essence, the argument of nihilism and despair: that so long as a president has some popular base within his own party, it does not matter what he does, it does not matter what the standard for impeachment is, it does not even matter if his conduct in office is a direct, existential threat to the continuation of the American system bequeathed to us by the Founders.
I do know this: In any raw contest of power with street mobs in play, with no role for norms, process, or tradition, the Left will always beat the Right. That is the way pointed by the Capitol rioters. Imposing consequences that make an example of Donald Trump himself for his starring role in that drama was the surest way to halt that trajectory. If even conservative journals of opinion do not see it as their job to stand athwart that descent down to the ant heap, what is even the point of publishing?