The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The second impeachment trial of Donald Trump begins this week. Alas, the outcome seems foreordained. While a handful of Senate Republicans may join Senate Democrats in voting to convict, the vote is virtually certain to fall short of the required two-thirds majority.
Public opinion and political alignment on Trump's impeachment is almost a pure party-line affair. Despite the seriousness of Trump's offenses—those for which he was impeached this time, for which he was impeached before, and those for which he was never impeached—relatively few are willing to cross party lines. This is a problem. As we noted in a recent statement of Checks & Balances and like-minded Republican lawyers and former government officials:
A political party that permits its President to violate his oath of office and the rule of law without serious consequence will have little basis to ask the American people to entrust it with governing responsibly again. Our country needs two serious political parties, each capable of governing, for our democracy to remain strong.
Alas, partisan willingness to excuse Presidential misconduct is not new. It's just been getting worse. How did we get here?
My fellow co-founder of Checks and Balances co-founder Paul Rosenzweig, who worked in the Independent Counsel's office, offers some thoughts in USA Today:
while the Republicans who choose to ignore Trump's attempt to subvert an election will bear the majority of the blame for this unfortunate decision, spare a thought for the Democratic Party and the role it has also played in bringing us to this place in history. For the seeds for this error were sown more than two decades ago by the Democrats during the impeachment of President Bill Clinton.
To be clear, the two cases are not in any way substantively comparable. Clinton's impeachable acts were tawdry and violated criminal law, but they pale in comparison with the egregious anti-democratic insurrection that Trump incited. That having been said, it is nonetheless the case that in rejecting Clinton's impeachment, the Democratic Party set an important precedent — the precedent of partisan disregard for presidential misconduct. If one reaps what one sows, then today the Democratic Party is reaping the bitter harvest of the crop it planted back in 1999. . . .
to say that Clinton did no more than lie about a private affair is to trivialize his conduct — a trivialization that is both false to fact and whose consequences have echoed down the corridors of American history to today's events. . . .
Clinton did not merely lie about an affair — he did so under oath during court proceedings on at least two occasions. He did not merely seek to hide the fact that he was cheating on his wife — he attempted to obstruct justice and tampered with witnesses to do so. These are not solely acts of personal misconduct but also fundamental violations of legal norms that bind all Americans.
Far from being dismissed as private errors, they are crimes. And when committed by the chief law enforcement officer of the United States, they are crimes of national significance, even when the background of those crimes lies in personal peccadillo. If the Clinton impeachment was about anything, it was about holding a president to the same standard we hold an average citizen.
Part of the reason that principles matter in politics is that once a line is crossed, even just a little, it becomes successively easier to cross it again. The willingness to excuse "small" misconduct begets a willingness to excuse ever larger transgressions. The hyper-partisan nature of our current political environment only magnifies this trend, and makes things get worse. When one side points to the other's misdeeds, the other scoffs at the blatant hypocrisy, and we slide a bit further into the downward spiral. At some point, political leadership requires saying "enough is enough," even if–indeed, especially if–that requires taking action against members of one's own party.