With Senate Republicans having now acquitted Donald Trump of abuse of power and obstruction of Congress, we can expect Trump to increase his abuse of power and even more brazenly obstruct Congress. That is a tragedy, and also a certainty.
What could Republicans—given that they were absolutely determined to let Trump off the hook—have done to maintain even a dram of decency or to maintain some semblance of the U.S. Congress as the President’s constitutional equal? Is there anything that they could do that might have had some possibility of reining in Trump in the future?
Surprisingly, a few Senate Republicans actually dared to do something that they knew would make Trump unhappy. Although few people remember it now, when the whistleblower complaint that started the impeachment momentum was first made public last fall, a few Republicans started to build a defense for Trump that resembled Bill Clinton’s defense in 1999: What he did was bad, it was wrong and should never happen again, but it does not rise to the level of impeachable offenses.
To be clear, although there is clearly no equivalence between what Clinton did and what Trump did, I think that both men should have been convicted and removed from office. I understand the case against removal of Clinton up to a point—his lies were not related to his duties in office and did not threaten the integrity of elections or abuse his power—but lying under oath is a big deal, particularly for a President. Validating a Republican lynch mob would have been bad in many ways, but putting Al Gore in the presidency was hardly a bad prospect.
In any case, Trump raged at the idea that his defenders were even considering a “He was wrong, but …” defense. He adopted the position that he had done absolutely nothing wrong—his phone call with the Ukrainian president was “perfect”—and Republicans quickly dropped the “bad, but not too bad” defense. Even so, when it came time to justify holding a sham trial, a few Republican senators who cared to attempt damage control to their shattered reputations went back to the defense that Trump had rejected. Lamar Alexander said that it was so obvious that Trump was guilty as charged that it was unnecessary to hear from a first-hand witness. Why bother, he said, when that witness will only tell us what we already know?
Meanwhile, Susan Collins (who could accurately be said to have spent the past few years as the “incredible shrinking senator”), similarly offered the comical thought that she “believe[s] that the president has learned from this case,” adding that “there has been criticism by both Republican and Democratic senators of his call.”
So it was possible for some Republican senators to go notably off Trump’s script in trying to defend their own indefensible conduct. He was wrong, but I am going to let him get away with it, because he will learn from this. Again, that is not what Trump wanted them to say. What they said is laughably empty, but he still did not like it.
Short of voting to remove Trump from office, however, is there something with teeth—well, maybe baby teeth—that those Republicans could have done? Some people floated the idea of censure, which seems serious to some people but would not be taken at all seriously by Trump. He has, as House Speaker Nancy Pelosi pointedly reminds everyone, been impeached, and that is on his permanent record. He might not like that, but he seems to be living with it very comfortably.
And if “impeached” is annoying but tolerable for Trump, why would “impeached and censured” be any different? It is all just high-sounding principled language, and Trump specializes in the low and the unprincipled. He only cares about power, and this does not diminish his power.
For that matter, he actually might not have cared about being convicted. Why not? Article I, Section 3, Clause 7 of the Constitution provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office.” Although “and disqualification” could be read to require the Senate to disqualify a President who has been convicted from running for President, the words “shall not extend further” seem to suggest that the Senate could decide to do something less than removing and disqualifying a guilty President.
If that were the best reading of the Constitution, it would give the Senate three items on which to vote: guilt, removal, and disqualification. That would mean that Alexander and Collins, were they actually being honest in their rambling self-justifications, could have said: “I’ll vote ‘yes’ on both articles of impeachment, because he’s clearly guilty; but I’ll vote ‘no’ on removal and disqualification.”
But that does not actually work, because Article II, Section 4 reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That removes the “guilty but not to be removed” option, assuming that anyone is even paying attention to the Constitution anymore.
That does not, however, eliminate the possibility of refusing to disqualify Trump from running for President again later this year as the Republicans’ nominee. The avowedly “troubled” Republican senators could have said, “He is flat-out guilty of committing high crimes and misdemeanors, so I have to vote to convict and remove him from office. But as we have been saying all along, The People should be able to decide Trump’s ultimate fate. Why would I deprive them of the possibility of telling us that they want even this abuser of power and obstructer of Congress back in the White House?”
Imagine that twenty Republican senators and all 47 Democrats in the Senate came to an agreement on that path forward. (The Democrats, of course, would do so only as a second-best choice, but they would probably have voted for it.) Once people finished arguing about how immediate the removal must be—the Constitution’s apparent implication that removal must be instantaneous would surely be countered by Republicans insisting on an orderly, non-hasty transition—Trump would have left the White House only a few months away from being potentially redeemed at the polls.
And in the meantime, Mike Pence would be President. Pence’s spot-on impression of a lobotomized lap dog suggests that he would simply allow Trump to continue to call the shots. True, Pence is actually quite ambitious, so there would be the risk to Trump that Pence would “go rogue” and start acting like a sentient adult. Even so, there is absolutely no chance that Trump would not be nominated by his adopted party this summer, so if Pence wanted to have any future in Republican politics—and he obviously does—he would never cross Trump. If Pence did disobey, his accidental presidency and career would end next January.
Obviously, I am not saying that Trump would be happy about any of this, but how much would it actually hurt him? He believes that impeachment has helped his reelection chances. He is almost certainly wrong about that (given that majorities in opinion polls favor his conviction and removal, especially after the House Democrats presented such a masterful case in the Senate), but he thinks that being aggrieved helps him politically.
And what could be a bigger grievance than actually being removed from office? Trump could then spend the entire general election campaign shouting to his adoring crowds: “I did nothing wrong, but I was kicked out of the White House. You must end this unfairness and give me back what’s mine!”
This is all a rather extended fantasy, of course, but if twenty or more Republican senators had agreed on this strategy, they could have pulled it off. They could even have responded to Trump-loving constituents’ angry calls for the senators’ heads by saying: “Are you kidding? I just did the most Trump-friendly thing possible. I kept the White House in Trumpist hands, I made Trump seem sympathetic, and I made him look like he is willing to obey the Constitution by having him (temporarily) leave. Imagine what he’ll do after he wins and gets back into the Oval Office!”
But of course, twenty senators did nothing of the sort. What about the Republicans whom the press bizarrely mislabels “moderates,” like Alexander and Collins (as well as Lisa Murkowski and Mitt Romney)? What if they had insisted on a vote of the sort that I described above?
As an initial matter, the two-thirds requirement means that Trump would not be convicted under this scenario. He would continue in office, even though a majority of the Senate had just voted to convict and remove him. That did not happen to Bill Clinton, but again, why would Trump care? “I’m still here. Exoneration!!” If anyone is practiced at talking about non-majority “wins” as if they were landslides, it is Donald Trump.
At this point, then, we have looked at a list of options that are not actually bad for Trump. In that defeatist sense, then, maybe it did not matter that some wavering Republicans simply ended up voting “not guilty” and are now slinking back to their offices. But again, is there something more that they could have done?
One obvious choice would be to say that they want the people to decide, but the people’s choice in November should be to turn Trump out of office. Imagine Lamar Alexander, on the cusp of his retirement, traveling the country giving speeches, saying that “I did not want to take the power away from you to remove an unfit President from office. But, boy oh boy oh boy, is he unfit! You all should vote for the Democrat.” We did not, however, see even the Bushes do that in 2016—long before the Republicans had capitulated completely to Trump—so it is more than a bit difficult to imagine any Republican doing it now.
Even so, at least this would have taken a constitutionally indefensible position—the idea that senators must not “undo an election” by conscientiously following the Constitution’s impeachment clauses—and made good on the rationalization that everyone should be able to judge Donald Trump for the dangerous demagogue that he is.
Is there something else, something that the supposedly distressed Republican senators could have done, rather than doing what they did (simply voting “not guilty” and then going back to being partisans in the elections)? After all, the self-delusion for which Alexander and the others have been most mercilessly mocked is their blithe assertions that they have not given Trump a blank check. Collins’s “he learned a lesson” is jaw-droppingly inane, because Trump learns from not being stopped that he is not going to be stopped.
If they truly meant what they are saying, then, these Republicans would at least have been willing to vote for a sense-of-the-Senate resolution that describes their votes to acquit as a “one ride only” ticket.
“It is this body’s belief that what the President did was wrong. However, because the meaning of ‘high crimes and misdemeanors’ is unclear, because we are so close to an election, and because removing a President from office would be so divisive, we have decided to allow President Trump to serve the remaining months of his term and to stand for reelection by the people in November. We hereby serve notice, however, that this will not stand in the future. We hope that the President will learn the appropriate lesson from this unfortunate episode, but if he does not, he will be held fully accountable.”
In other words, these senators could have gone on record saying, “We’ll let it go just this one time.” The Murkowskis of the world could then say, “This was an easy ‘yes’ vote, because I have every confidence that Trump will in fact not violate the Constitution again. I simply think it’s a good idea to have it on the record that this was excruciatingly close, and there will be no second chances.”
Would that stop Trump? Maybe nothing would. And it certainly seems an odd reading of the Constitution to say that Presidents should receive an impeachment Mulligan. Republican senators, however, have long since left behind the idea that the Constitution means what it says.
Even better than a toothless formal censure, a “Next time you’re in trouble, and we really mean it!” vote (which still might not seem like much) would have been more potent than any of the alternatives—other than, of course, looking at the uncontested facts and the law and voting to remove the corrupt, dangerously impulsive man who sits in the Oval Office, and keep him out.