The Volokh Conspiracy

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The Trump Indictment Hangover

The high may feel good, but the hangover will be terrible.


In politics, as in nature, every action has an equal and opposite reaction. When congressional Democrats impeached President Trump, twice, it was inevitable that Republicans would seek to use impeachment against democrat politicians. And now that the Democratic presidential administration has indicted President Trump, it will inevitably come to pass that Republicans will seek to indict Democratic politicians. Two recent pieces in the New York Times reflect these Newtonian reactions.

First, Carl Hulse writes that impeachments and censures, once rare, have become the new normal in Congress. There are currently investigations to impeach the Secretary of Homeland Security, the Attorney General, and even President Biden himself.

Proposals to censure lawmakers and impeach members of the Biden administration are piling up quickly in the House in an illustration of how once-solemn acts are becoming almost routine as the two parties seize on these procedures as part of their political combat. And the trend is only likely to intensify given the enmity between Republicans and Democrats over a new federal indictment brought against Mr. Trump for his efforts to overturn the 2020 election, and the G.O.P.'s desire to even the score.

The proliferation of censures and cries for impeachment is troubling to some who see it as a threat to the standing of the institution as well as diminishing the weight such punishments are supposed to carry. Censure is the congressional penalty just below expulsion.

These reactions were entirely foreseeable:

But it is a truism of the contemporary Congress that once one party does something the other sees as a breach, the aggrieved party will return fire once it gets the chance — and perhaps even take things up a notch. Tit for tat is the coin of the congressional realm. . . .

"I said two years ago, when we had not one but two impeachments, that once we go down this path it incentivizes the other side to do the same thing," said Senator Mitch McConnell, Republican of Kentucky and the minority leader.

"Impeachment ought to be rare," he said, adding, "This is not good for the country."

In December 2019, I warned in the Atlantic that Trump's first impeachment could set a dangerous precedent:

Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

Just because Trump could have been impeached does not mean he should have been impeached. The same goes for indictment.

There is a second piece in the Times that speaks to our downward spiral. Jack Goldsmith writes that the D.C. indictment of Trump "may have terrible consequences."

There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party's probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration's responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

Goldsmith adds that Republicans already hold a dismal view of DOJ in light of the Russia-Russia-Russia saga, in tandem with Hunter Biden's apparent sweetheart deal. Goldsmith explains that Republicans, when in power, will seek to exact payback:

The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government.

And such charges won't be difficult. Smith's prosecution, at bottom, accuses Trump of lying to aggrandize his power. Virtually every person who achieved high office engaged in related conduct.

It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.

Back in August 2022, I explored the dilemma facing Merrick Garland. Ultimately, he chose to indict–that decision was his, and not that of Jack Smith. In some regards, this decision was Newtonian as well. In an alternate reality, Justice Garland would be on the Supreme Court, Roe v. Wade would still be on the books, President Hillary Clinton would be halfway through her second term in office, and Donald Trump, well, he would probably still be under indictment in New York. But that timeline did not happen. We do not know where Trump's indictment will lead. But I agree with Goldsmith that it will likely be terrible.