One of the many choices that people have had to make over the last four years is whether to treat Donald Trump’s provocations seriously or as mere public-relations hype. Is he the next Hitler or merely a grimly amusing new P.T. Barnum gone bad?
There are dangers in treating minor threats as major ones, and vice versa. From the very beginning, however, I was one of the people who has viewed Trump as a genuine – indeed, an existential – threat to the Constitution and the rule of law. And unfortunately, nearly everything that Trump and the Republicans have done over the last few years has validated the view that Trump is a menace and not merely a clown.
As the evidence piles up, however, there is a tendency even among people who are very well informed and full of good intentions to dismiss those who sound such alarms with the dreaded insult “alarmists,” claiming among other things that the American political system is too strong to be taken down by Trumpism. Besides, being an alarmist means that a commentator will not be taken seriously, right?
As much as I understand the tendency to say, “Now, now, let’s not overreact,” this truly is a time when people should stop assuming that it will all work out in the end. It truly might not, and it certainly will not unless people begin to be more honest with themselves about what is happening and what threats lie in our immediate future.
A recent article in The New York Times provides an interesting analogy in the history of discussion among experts about climate change:
A recent essay in Scientific American argued that scientists ‘tend to underestimate the severity of threats and the rapidity with which they might unfold’ and said one of the reasons was ‘the perceived need for consensus.’ This has had severe consequences, diluting what should have been a sense of urgency and vastly understating the looming costs of adaptation and dislocation as the planet continues to warm.
Among the very unscientific pundits who dominate the national political conversation, an even stronger “perceived need for consensus” is causing people “to underestimate the severity of threats and the rapidity with which they might unfold” and is certainly “diluting what should have been a sense of urgency” when it comes to what Trump is doing to the Constitution and the country.
Here, I want to make two related arguments. First, I will respond to a recent column that encapsulates the anti-alarmist “Trump’s not an existential threat” view; and second, building on my argument there, I will explain why – contrary to much commentary – removing Trump from office via impeachment would be less messy and divisive than defeating him at the ballot box in November 2020.
The Case for Alarmism
Donald Trump openly disdains anyone and anything that stops him from doing whatever he feels like doing. That is why, even before his surprising non-majority win in 2016, I wrote “Is This the Beginning of the End of Constitutional Democracy in the U.S.?” and similar columns here on Verdict and on Dorf on Law.
My argument all along has been that the American political system is unprepared for a President who simply refuses to obey the law. “Well, he has to,” people thought; but that was obviously wrong even before Trump started to disprove the point again and again and again.
Much of what we take for granted about the “strength of our system” is ultimately about what people do without being forced. Will, for example, a Vice President lean on a government expert to fake the case for going to war? We did not think it possible, until it happened.
And Trump makes Dick Cheney look like an amateur when it comes to damaging the rule of law. The current President thinks nothing of issuing blanket refusals to honor subpoenae, for himself and even for his former aides. He steals money from the defense budget to build fencing on the Mexican border, in clear violation of congressional appropriations. He dangles pardons for people who would break the law on his behalf. His lawyers argue in open court that the President cannot even be investigated, much less prosecuted, and he asserts that the Constitution itself includes “phony” provisions.
When I was in my first stages of panic about the threat that Trump posed, back in 2016, I imagined a scenario in which Trump broke the law and (because the House of Representatives at that point was majority Republican), Paul Ryan and Mitch McConnell went to the White House to tell him to stop. What if Trump then simply had them arrested, I wondered?
Believe me, I understand why well-meaning people want to wave off that kind of possibility. It just seems so … shall we call it banana-republicky? But here we are, with Trump not only laying waste to the rule of law but Republicans making my imagined scenario in which they actually stand up to Trump look quaint.
All of which is important, but an anti-alarmist view would still say that there is no reason to assume the worst. Maybe Republicans have a limit (even if they have shown no signs of that to this point). Maybe Trump himself will show some restraint (cue laughter). But above all, these commentators advise not to believe that the scariest possible outcome will happen.
What those pundits have not done is to offer an explanation of how the current situation ends with the rule of law intact and with Republicans continuing to allow an honest two-party system to exist.
Washington Post columnist Paul Waldman recently reminded us, in fact, that Republicans’ most troubling tendency (since long before Trump came along) was a decreasing willingness to accept that they might lose fair and square. The headline on Waldman’s column put the point clearly: “Can Republicans relearn how to accept political outcomes they don’t like?”
Waldman is one of the most insightful, readable, and engaging political columnists in the business. I was thus momentarily encouraged when it was clear that he wanted to respond to so-called alarmist arguments like mine. In particular, I am among those who have argued that Trump simply will not leave office in 2020, even if he loses. He will, I believe, declare that there was massive voter fraud, and he will refuse to depart from the Oval Office.
This is in fact even more likely if he loses by a landslide. Why? Because Trump will declare that he knows for sure that, say, a 61-39 loss is impossible, because some Fox News poll had him in the high forty percent range.
So what was Waldman’s response to this possibility? Honestly, it was a head-scratcher:
One occasionally hears liberals muse that even if Trump were to lose next year, he might simply refuse to vacate the White House. This seems a highly unlikely scenario, especially since there may be nothing Trump fears more than public humiliation. Instead, what is far more likely is that Trump would not have to be physically removed from the Oval Office, but would—starting immediately after Election Day and continuing into his post-presidential life—undertake a campaign to discredit the results.
Waldman goes on to say that Trump would claim voter fraud and all of that, but somehow this will only happen after Trump has peacefully accepted the bad 2020 result and left office.
Yet if “there may be nothing Trump fears more than public humiliation,” how is that a reason to believe that Trump would leave? Losing an election is the ultimate humiliation. Leaving the White House while thousands of Americans stand outside cheering and singing, “Na na na na, Na na na na, Hey hey-ey, Good-bye!” is not exactly un-humiliating. (Ask George W. Bush.)
The point is that the loss itself is the humiliation, and Trump will have many ways to deny the loss. Knowing that he could continue to dominate headlines even out of the White House would hardly be enough for him to say, “I lost fair and square, and I accept the people’s judgment,” or even a more characteristically Trumpian: “I lost, but you’re the losers!” Trump cannot accept losing because it is humiliating, so he will not allow himself to lose.
Would Impeachment and Removal Be Worse? Actually, No
As I noted above, the biggest surprise of the Trump era has been the elimination of any belief that Republicans will stand up to Trump. With even retiring Republican members of Congress now saying that they will stand with Trump in the impeachment inquiry, it is shocking that there now seems to be nothing that would change their minds.
As a practical matter, therefore, something cataclysmic would have to happen to cause at least 20 Senate Republicans to vote to convict Trump and remove him from office. That is not to say that no such cataclysm is forthcoming. At this point, no one knows whether something even more shocking could yet change everything. For now, however, it appears that Trump will still be President next year and will run for reelection in November.
For many observers who share “the perceived need for consensus,” similar to the climate scientists that I noted at the beginning of this column, this is actually good news. The idea is that impeachment is messy and ugly and leads to all kinds of social and political disruptions. Better, therefore, to win at the ballot box. This is the conventional wisdom on the Sunday shout-shows, but it also is the go-to comment from gifted satirists like Stephen Colbert when they want to sound sober-minded.
But consider that if something were to happen that would result in Trump actually losing twenty rock-solid Senate votes, the country would actually be in something of a state of unity. Yes, Trump’s diehards would be beside themselves, and the Republicans would begin their own internal cleansing, but the country would have seen two-thirds of the Senate say that Trump’s many offenses disqualified him from holding office.
By contrast, we need to think again about that scenario in which the voice of the people was recorded in voting booths across America but Trump nevertheless refuses to leave. Here, not only do we not have twenty Republican senators agreeing that he must go, but all Republicans would be looking at two collateral consequences of failing to back Trump’s claim that Democrats had stolen the election.
First, the Republicans would, if they insisted on the results of the presidential vote being honored, be putting a Democrat in the White House. No more possibility of Mike Pence replacing a disgraced Trump, and no more hope of recovering in time for the 2020 election. It is either “We agree that Trump didn’t really lose” or “Welcome, President Kamala Harris!” Which one seems likely from Republicans?
Second, those Republicans themselves would include people who lost their own elections. If, say, Iowa’s Joni Ernst loses her reelection (as expected) next year, why would she not feel the pull of supporting Trump’s coup? She might even be able to convince herself that it is true, because after all, how could she truly lose?
Mitch McConnell, meanwhile, would (even if he survives his own reelection battle) have every reason to challenge an election that not only saw the Democrat win the presidency but saw Republicans lose all across the country. He does not seem eager to be Minority Leader again.
Even worse, the more lopsided the Democrats’ win, the more likely it is that Republicans will have an incentive to negate the people’s will yet again.
One of the scariest aspects of all of these scenarios has been the possibility of violence. Once again, The Post’s Paul Waldman is oddly complacent:
But the new president will take office whether [Trump’s supporters] like it or not. They can take to the streets in their MAGA hats and shout that they’ll never concede that the Democrat is actually president, but that won’t stop the inauguration from taking place. And then what?
At one extreme, you have a genuine potential for violence. Part of Trump’s unspoken message is that while democratic institutions may be inherently illegitimate, they can still be managed or manipulated to serve Trump’s ends. But if they can’t, then some may conclude that the ordinary processes of politics are insufficient to solve America’s problems, and the only thing that will is a spasm of violence. If even a tiny number of people conclude that, it could be terribly dangerous.
All true, but Waldman then ends the column by discussing how difficult Republicans will be with the new Democratic President. Why dilute the sense of urgency that we should feel when faced with a clear threat of violence? Indeed, the violence could indeed stop the inauguration from taking place, but the larger point is that (as Waldman points out) only a tiny number of people need to turn violent for things to go very, very badly. And we should recall that Trump’s former “fixer” Michael Cohen has said that Trump will never agree to a peaceful transfer of power.
It is true that this threat of violence exists under both the impeachment scenario and the lost election scenario, but again, it seems much more likely that the situation will be less volatile if twenty or more Republicans in the Senate have said, “Unfortunately, he has to go.” It is true that this would not satisfy everyone, but we are talking about trying to reduce the overall likelihood of violence. Sadly, we cannot reduce it to zero.
The point is that there is still no reason to believe that Trump will accept losing the 2020 election, and there is every reason to fear that Republicans will back him and that the inevitable protests by the majority of Americans whose votes defeated Trump will be met with violence by some of Trump’s dead-enders.
We therefore face two truly awful ways of seeing Trump lose. Unfortunately, the less likely one (impeachment and conviction) is the one that is likely to go more smoothly, both politically and in terms of the threat of social unrest. Republican Senators who are looking fearfully at what might happen to them if they vote to convict Trump (“Will I be challenged in a primary?”) ought to consider that the alternative—a contested national election, an internal coup, and an outbreak of violence—is much worse.
