The Volokh Conspiracy
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Trump's Second Acquittal and the Limits of Impeachment
The outcome shows that it is almost impossible to convict a president in an era of severe polarization. But Trump's second impeachment still served some useful purposes..
Former president Donald Trump has just been acquitted in his second impeachment trial. The 57 votes for conviction were not enough to achieve the required two-thirds majority.
I will not here go over the excuses offered by GOP senators who backed Trump and others who supported the acquittal. I and others have written about them extensively already. They range from weak (claims that it is unconstitutional to impeach and try former officials), to even weaker (the First Amendment protects Trump against impeachment), to downright "ridiculous," as conservative legal commentator Ed Whelan called it (Trump was somehow denied constitutionally required due process). The flaws in these arguments are detailed at the links above.
If the issue of impeaching former officials—the one settled on by many GOP senators who voted to acquit—were really so crucial, Republican senate leaders could have agreed to hold the trial before Trump left office. GOP Leader Mitch McConnell—who recognized that Trump had committed impeachable offenses—instead refused to do so. This strongly suggests that the issue was used as an excuse to justify voting to acquit without actually having to defend Trump's conduct.
The evidence of Trump's responsibility for inspiring the attack on the Capitol is overwhelming, and goes far beyond his inflammatory speech to the mob on January 6. It includes his long history of promoting and defending violence by his supporters, his extensive efforts to reverse the result of a free election and stay in power, and his continued backing and praise of the rioters even after the attack began. Many of the rioters themselves believed they were doing exactly as Trump wanted, and that belief was entirely reasonable, given his actions and words. Even if Trump were merely reckless rather than acting with deliberate intent, that is still a violation of his constitutional obligations as president, and still sufficient to justify conviction.
Ultimately, the reasons for acquittal were far more political than legal or moral. While Donald Trump is highly unpopular with the public as a whole, he retains a great deal of support in the GOP base. Some Republican senators feared being "primaried" by Trumpists if they voted to acquit, while others feared the party as a whole would suffer if it angered them.
More generally, the extreme polarization of American politics leads politicians and other partisans to excuse even grave failings by their own party's leaders—especially when it comes to the president. This problem is especially severe in the Trump-era GOP, but Democrats are also far from immune to it. As I have noted before, few objected when President Barack Obama when he started two wars without constitutionally required congressional authorization, even though Obama himself and other Democrats vehemently denounced similar actions when contemplated by Republicans. The seven Republican senators who voted to convict Trump is a figure seven times greater than the total number of senators who voted to convict a president of their party in any previous impeachment trial (that number is one: Sen. Mitt Romney in Trump's first impeachment trial, last year).
Nonetheless, it is clear that the combination of partisan polarization and the two-thirds supermajority requirement for conviction has undermined impeachment as anything more than a marginally effective constraint on presidential abuses of power. We will need to rely primarily on other mechanisms, ranging from criminal prosecution (where appropriate), to nondeferential judicial review of presidential actions (including in areas where courts have a history of excessive deference in the past), among others.
Despite the failure to secure a conviction, the second impeachment of Trump has done some real good. Impeachment and fear of a possible conviction probably restrained Trump from further dangerous actions during his last two weeks in office. In addition, the strong case put on by the House managers helped remind people of Trump's egregious abuses of power. It may also further damage his reputation and political standing, making a comeback in future elections at least marginally less likely. The unprecedented bipartisan support for conviction may further damage Trump's standing.
It is theoretically possible that the impeachment process will redound to Trump's benefit, as people will seem him as being vindicated. Time will tell on that score. But I am skeptical that such an outcome is likely. Polls show that a majority of Americans (about 53%) supported conviction and an even larger one backed barring Trump from holding federal office in the future. Views on this issue are strongly held, and are unlikely to be reversed by the acquittal. Trump's acquittal in his first impeachment trail did not end up boosting his standing, and this one is even less likely to do so, given the more egregious more readily understand nature of his offense.
In the long run, I believe the acquittal will be remembered as a grave error, and the historical reputations of those who made it possible will suffer accordingly. That said, I readily admit that it is difficult to predict what the ultimate verdict of history on these sorts of events will be. Much of what I wrote in the aftermath of the Trump's first impeachment trial is applicable today, as well:
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 Senate committed a serious error in refusing to [convict] Trump. But… 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….
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.
Hopefully, more and more people will come to understand that Trump's acquittal—like Andrew Johnson's—was a gross miscarriage of justice. And both will go down in history as among the worst and most evil presidents in our history.