The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Barring some highly unexpected development, Senate Republicans have the votes to prevent the calling of any witnesses in Donald Trump's impeachment trial, and Trump will be acquitted by the Senate next Wednesday. Almost from the beginning, it has been clear that there would not be anything like enough GOP votes to force Trump's removal under the constitutional required 2/3 supermajority standard.
In my view, the acquittal of Trump will be a grave error, because he not only abused his power (itself a sufficient reason for impeachment and removal), but also violated the Constitution and committed at least one serious federal crime. As my co-blogger David Post explains, Trump is even more clearly guilty on the second count in the articles of impeachment: obstruction of Congress. Slippery slope concerns about impeaching and removing Trump for this kind of behavior are, I have argued, groundless. Indeed, letting his misdeeds go unpunished would create a much more serious risk.
Deserved or not, as a legal matter the acquittal will be a win for Trump. He will have avoided removal from office. But the long-term impact of this impeachment process still remains to be seen. It may not be fully evident for many years to come.
In the relatively near future, we will see whether the impeachment process inflicts political damage on Trump. If he is defeated in his reelection bid, it is possible impeachment will be a contributing factor, or will at least be perceived that way. While it is unlikely that the process will sway more than a small fraction of the electorate, that small fraction could potentially prove to be decisive if the election is close, as it was in 2016.
Obviously, it is also possible to imagine scenarios where impeachment actually helps Trump, if some number of key swing voters think Democrats overreached and decide to punish the party for it, as arguably happened in the 1998 midterm election, when the GOP lost ground in part because of the unpopular impeachment of Bill Clinton.
The widespread perception that the Clinton impeachment was a political error by the GOP has, I think, had the effect of making politicians wary of impeaching presidents for for seemingly minor crimes unrelated to their office. If Trump's impeachment also comes to be considered a political mistake, it might have a similar chilling effect on future impeachments for abuse of power. The opposite might happen if the Trump impeachment is seen as a political success for the Democrats, despite the failure to remove the president from office.
It may take much longer to see the ultimate impact of the Trump impeachment as a precedent. Trump's likely acquittal does not necessarily mean that the Senate will have endorsed the more extreme and ridiculous arguments made by the president's lawyers, such as the claim that even the most egregious "abuse of power" is not a legitimate basis for impeachment if the president has not also committed a crime. As Gerard Magliocca explains, the Senate's 1868 acquittal of President Andrew Johnson was accompanied by statements indicating that even many of the senators who voted to acquit did not accept the more extreme and dubious arguments made by his defenders.
Earlier today, GOP Senator Marco Rubio indicated he would vote to acquit, but also emphasized that "I reject the argument that 'Abuse of Power' can never constitute grounds for removal unless a crime or a crime-like action is alleged." He instead claimed there are good pragmatic reasons for refusing to remove Trump even if he did commit an impeachable offense. I think Rubio made the wrong decision. But at least he didn't endorse the more outlandish theories offered by Trump's defenders. Perhaps at least some of the other senators who vote to acquit will adopt similar stances.
Regardless of what the senators say, it is still far from clear what lessons the rest of us will take away from this case. It may well be a long time before we have any consensus on the rights and wrongs of this episode. I hope most Americans will eventually agree that the the Senate committed a serious error in refusing to remove Trump. But I admit it is possible that public and elite opinion will eventually coalesce around the opposite view: that the Democrats overreached by impeaching 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. So even if my view of this episode is right, the tide of opinion could still move against it. Perhaps more likely, the issue will continue to split people along ideological and partisan lines. That state of affairs could persist for a long time, given the severe polarization of American politics.
Even if a consensus does develop, it might eventually be challenged or even reversed. For many decades, the 1868 impeachment of Andrew Johnson was seen as a grave error, and John F. Kennedy (or at least his ghost-writer) famously celebrated the senators who voted Johnson's acquittal in his Profiles in Courage. More recently, however, the consensus has been broken as more and more people come to recognize that Johnson richly deserved to be removed for his attempts to sabotage Reconstruction and preserve white supremacy in the South. I myself have changed my mind on the Johnson impeachment since I first read about it in the 1980s, and I am far from alone in having done so.
If majority opinion coalesces around the view that Trump's acquittal was a mistake, then it will stand as a negative precedent future political elites will strive to avoid, not a positive that should be emulated. The opposite will be true if the pro-Trump narrative of these events comes to be generally accepted. If no broad consensus develops, then the precedential impact will likely be muddled and unclear.
Predictions are difficult, especially those about the future! For now, the only really safe predictions are that we will not know the ultimate effect of the Trump impeachment for some time to come—and that the rights and wrongs of this episode will continue to be hotly debated.
UPDATE: I have made a few minor additions to this post.