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Impeaching Donald Trump is risky: But not impeaching him might be even riskier

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- Commentary

The president of the United States blew up an epic tweetstorm this past weekend, hitting on subjects from the trade talks with China to his son’s subpoena from the Senate Intelligence Committee and a number of others in between. It was a manic performance that returned repeatedly to one subject, however. He continues to publicly vent his spleen about the Russia investigation and the Mueller report even taking the risky step of contradicting his former White House counsel, Don McGahn:

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Trump was clearly glued to his television all weekend and worked himself up into a frenzy, finally culminating with this series late on Sunday evening:

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His last tweet took this further:

In other words, Trump is not only blaming the last administration, he’s now turned his aim at current FBI Director Christopher Wray (appointed of course by Trump), who said last week that he didn’t consider what the FBI did during the last campaign to be “spying.” So now he is accused of protecting people who tried to overthrow the president through an illegal coup.

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We’ve long since come to the point at which the media figuratively rolls its eyes at Trump’s comments and Twitter feed, as if it’s some kind of content-free primal scream therapy. Much of the country probably does the same thing. But his followers take this seriously and have been convinced all along that the special counsel’s investigation wasn’t just a “witch hunt” but an attempted coup. And anyone in government who says otherwise will soon be in the crosshairs.

This is a president who has already been named as an unindicted co-defendant in a felony for which his former lawyer is now serving time in federal prison. The Mueller investigation found that he and his campaign welcomed the sabotage of his opponent in the 2016 election, which falls under the category of grossly unethical even if it isn’t strictly illegal. And there’s little doubt that he repeatedly obstructed justice during that probe. Mueller was precluded from bringing charges against the president by Department of Justice policy, but clearly meant for his report to be a “roadmap” for the House of Representatives to consider an impeachment inquiry.

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So far the Democratic majority has balked at doing that because they believe it presents too big a risk. Some are fighting the last war, believing that the Clinton impeachment worked against the Republicans and would do the same to them. (This will come as a surprise to President George W. Bush.) Others believe they will be punished for “overreaching” and that Trump will garner sympathy from people who don’t currently support him. A few contend that this is a big trap laid by the master strategist Trump who knows he will become much more popular if he’s engaged in an impeachment battle. But the most common excuse is that impeachment would simply be too divisive and the country just can’t deal with that.

All these reasons are based upon the simple calculation that since Republicans are so blindly partisan there is no chance to convict Trump in a Senate trial, which requires a two-thirds vote to remove him (or 67 senators, including at least 20 Republicans). So any impeachment proceeding will fail to remove the president, which Democrats believe people will interpret as more evidence of his omnipotence. That could indeed happen, no doubt about it. Trump will certainly spin it that way and the GOP seems ready to echo all his ridiculous boasts. It’s a risk.

As Martin Longman at the Washington Monthly pointed out in this post, the problem is a result of a mistake by the founders. They failed to properly reckon with factionalism, a tendency they desperately wanted to avoid after observing centuries of civil wars in Europe. It didn’t work: Political parties emerged in the new nation almost immediately and have been part of the system ever since. There have been terrible periods of partisan strife but with the exception of the immediate post-Civil War presidency of Andrew Johnson, there were no presidential impeachment proceedings until 40 years ago. Perhaps that was a function of working norms of political behavior that kept presidents and their partisan opposition in the Congress from pushing that envelope. If so, it’s clear those norms are gone.

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We are seriously contemplating a third impeachment process out of the last eight presidencies.

In all the recent cases it was one faction, the Republicans, that busted the norms. Richard Nixon committed high crimes, and would have been impeached had he not resigned. The Clinton impeachment was a GOP farce which the public overwhelmingly rejected. And now we have Trump. In all the cases, however, no president has yet been convicted and removed from office. (Nixon resigned rather than face a Senate trial, but you have to wonder whether he might have been able to tough it out after all.)

What all these failed impeachments demonstrate is that as long as a president can hold one-third of the Senate plus one, he is immune from removal or legal punishment. The point is, our system has an extremely poor mechanism for removing a president who commits high crimes and misdemeanors.

Donald Trump has decided to push that weakness to the limit. He isn’t just exercising executive privilege. He’s defying all congressional oversight. The White House has refused to respond to any requests from the House of Representatives at all since the new Congress was sworn in. He and his henchmen have surmised that the Democrats will flail about impotently, demanding witnesses and issuing subpoenas, and the public will reward Trump for his perceived strength and defiance.

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If that’s true, we have a much bigger problem. It raises a different question: What are the risks if the Democrats don’t impeach?

On a political level, consider whether or not Trump’s criminal behavior and defiance of congressional oversight results in nothing but delayed court cases and handwringing in the press. Will he not get just as much credit from his base for resisting the Democrats’ demands as he would for fending off an impeachment conviction through the good graces of Senator Majority Leader Mitch McConnell? He technically “wins” either way but I think it’s debatable which benefits him more.

But the stakes here are much bigger than short-term political considerations. If Republicans are able to demonstrate that Democrats won’t move even against a president like Trump, I think we can be sure that further Republican presidents will no longer even bother to observe the law, much less the norms and rules that have governed our republic since the beginning. They’ve been heading this way for some time.

Regardless of whether or not the Senate can protect the president from conviction, the risk of failing to impeach Trump is greater than the risk of doing it. If the Democrats refuse even to open an impeachment inquiry with all the evidence they have at hand, it’s pretty clear that the entire concept is dead. At that point we will have shown that a president is literally unimpeachable, and is therefore above the law. Trump won’t be the last to take advantage of that fact.

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