Trump’s Second Acquittal and the Limits of Impeachment –

28 - Free Minds and Free Markets

Former President Donald Trump has just been acquitted in his second impeachment trial. The 57 votes for the conviction were not enough to achieve the required two-thirds majority.

I’m not going to go into the excuses offered by GOP senators who supported Trump and others who supported the acquittal. I and others have written about it extensively. They range from weak (claiming that it is unconstitutional to indict and bring former officials to justice) to even weaker (the first amendment protects Trump from impeachment) to downright “ridiculous,” as conservative legal commentator Ed Whelan put it (Trump somehow got disputed) due process prescribed by the constitution). The errors in these arguments are listed at the links above.

If the matter of indicting former officials – that of many GOP senators who voted for acquittal – had really been that important, Republican Senate leaders could have agreed to hold the trial before Trump stepped down. GOP leader Mitch McConnell – who realized Trump had committed criminal offenses – instead turned it down. This strongly suggests that the issue was used as an excuse to justify the acquittal vote without actually having to defend Trump’s behavior.

The evidence of Trump’s responsibility to instigate the attack on the Capitol is overwhelming and goes well beyond his inflammatory speech to the January 6th mob. These include his long history of promoting and defending violence by his supporters and his extensive efforts to reverse the outcome of free choice and stay in power, and his continued support and praise of the rioters even after the attack began. Many of the rioters themselves believed they were doing exactly what Trump wanted, and that belief was perfectly reasonable given his actions and words. Even if Trump was just reckless and not deliberate, it is still a violation of his constitutional obligations as President and is still sufficient to warrant conviction.

Ultimately, the reasons for the acquittal were far more political than legal or moral. While Donald Trump is generally very unpopular with the public, he retains a lot of support within the GOP base. Some Republican senators feared they would be given “priority” treatment by Trumpists if they voted for acquittal, while others feared the party as a whole would suffer if angered them.

In general, the extreme polarization of American politics means that politicians and other partisans even apologize for serious failures by the leaders of their own party – especially with regard to the president. This problem is particularly severe in the Trump-era GOP, but even Democrats are far from immune to it. As I mentioned earlier, when President Barack Obama started two wars without the need for constitutional approval from Congress, few objected, although Obama himself and other Democrats vehemently denounced similar actions when considered by Republicans. The seven Republican senators who voted to condemn Trump are seven times the total number of Senators who voted to condemn a president of their party in a previous impeachment (that number is one: Senator Mitt Romney in Trump’s first Impeachment proceedings, last year).

It is clear, however, that the combination of partisan polarization and the two-thirds super-majority requirement for conviction undermined impeachment as anything but a minor effective restriction on the presidential abuse of power. We must primarily rely on other mechanisms, ranging from criminal prosecution (if applicable) to undifferentiated judicial review of presidential action (including in areas where courts have historically received excessive respect in the past).

Despite the failure to secure a conviction, Trump’s second impeachment did really good. Impeachment and fears of possible conviction have likely deterred Trump from further dangerous acts during his last two weeks in office. In addition, the property managers’ strong argument helped to remind people of Trump’s tremendous abuse of power. This could also damage his reputation and political standing further, making a comeback at least slightly less likely in future elections. The unprecedented bipartisan support for the conviction can further damage Trump’s reputation.

It is theoretically possible for the impeachment proceedings to continue in Trump’s favor as people make him appear confirmed. Time will tell in that regard. However, I am skeptical that such an outcome is likely. Polls show that a majority of Americans (about 53%) supported the condemnation and an even larger one that prevented Trump from assuming federal office in the future. Views on the matter are strong and are unlikely to be reversed by acquittal. Trump’s acquittal in his first impeachment trial did not improve his standing, and it is even less likely as the more egregious nature of his offense is easier to understand.

In the long run, I believe that the acquittal will be remembered as a grave mistake and the historical reputation of those who made it possible will suffer accordingly. Even so, I readily admit that it is difficult to predict the final verdict of history on these types of events. Much of what I wrote after Trump’s first impeachment still applies today:

Regardless of what the senators say, it is far from clear what lessons the rest of us will learn from this case. It can take a long time to reach agreement on the rights and wrongs of this episode. Hopefully, at some point, most Americans will agree that the Senate made a grave mistake in rejecting this [convict] Trump card. But … it is possible that public opinion and the opinion of the elite will at some point merge into an opposing view: that the Democrats have gone too far in indicting Trump in the first place. Unlike many people, I don’t believe that moral progress is inevitable. Regression has happened before and could happen again. Even if my view on this episode is correct, the flood of opinion could still be directed against it. Perhaps it is more likely that the problem will continue to divide people on ideological and partisan lines. Given the strong polarization of American politics, this situation could last for a long time.

Even if a consensus develops, it can potentially be challenged or even reversed. For many decades, Andrew Johnson’s impeachment in 1868 was viewed as a grave mistake, and John F. Kennedy (or at least his ghostwriter) celebrated the Senators who voted Johnson’s acquittal in his profiles in Courage. More recently, however, the consensus has been broken as more people realize that Johnson deserves to be removed for his attempts to sabotage reconstruction and maintain white supremacy in the south.

If majority opinion agrees that Trump’s acquittal was a mistake, it will be a negative precedent that future political elites seek to avoid, rather than a positive that should be emulated.

Hopefully more people will understand that Trump’s acquittal – like Andrew Johnson’s – was a gross miscarriage of justice. And both will go down in history as the worst and most evil presidents in our history.