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Yoo vs. Yoo

President Trump stands on the Truman Balcony as he returns to the White House in Washington, D.C., October 5, 2020. (Erin Scott/Reuters)

I am perplexed by John Yoo’s column today.

Yoo repeatedly asserts that one of the reasons to forgo convicting Donald Trump on the charge of which he is plainly guilty is that Trump committed no crime: “Trump did not commit a federal crime,” “Trump’s conduct simply does not rise to the level of criminal incitement.” And he argues in the same piece: “The Founders did not believe that impeachment requires a criminal act. Although the Constitution sets the grounds for impeachment as treason, bribery, ‘or other high Crimes and Misdemeanors,’ its drafters and ratifiers would have understood that phrase to include serious abuses of power, dereliction of duty, or failure.”

There is no question about the president’s serious abuses of power, his dereliction of duty, or his failure. The question of whether any of this constitutes a federal crime that could be credibly prosecuted is, as Yoo himself writes, immaterial to the question of impeachment. A possible legal defense against the one is not a defense against the other.

There was an insurrection, Trump incited it, and he should be removed from office irrespective of whether we believe that a federal prosecutor could win a criminal case in the matter. Impeachment is made for such cases, in which criminal proceedings are insufficient to secure the nation’s political position.

Yoo continues: “Instead of convicting, the Senate could place its faith in the wisdom of the American people. On November 4, 2020, we learned that the American people had decided to remove President Trump from office by denying him a second term. On January 20, 2021, the normal mechanisms of constitutional government will carry out that verdict by inaugurating Joe Biden as president.”

This is an incredible thing to write. It is true that the American people decided to remove Donald Trump as president — and it is also true that Trump has now twice attempted to overrule that decision, once through corruption and once through violence. That is why he has been impeached. (Again.) That is why removing him from office is urgent.

And is John Yoo really so certain that things are going to go off without a hitch on January 20? The insurrectionists managed to interrupt and delay the constitutional process when a murderous mob of them sacked the Capitol. As Washington dithers and Republicans cower, the same mob will certainly be emboldened to try again.

On what possible basis does John Yoo assert that the “normal mechanisms” of government will function with Donald Trump as chief executive — which he will be until Joe Biden is sworn in? Yoo simply begs the question: Whether “normal mechanisms” of government can function is precisely what is at stake here.

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