Will Congress Stop Trump’s Lawlessness? by Jonathan Bernstein



Will Congress Stop Trump’s Lawlessness?

by Jonathan Bernstein, bloomberg.com

December 7, 2020 06:53 AM

Not how it works.

Photo by: Photographer: Spencer Platt/Getty

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What should be done with a president who is openly asking numerous elected officials to break the law — and not just to violate statutes, but to do so in an effort to illegally overturn an election result?

This is what’s happening. There is no provision for state legislatures to throw out election results if they decide they don’t like the winner. There’s no provision for them to do so even if they have really good reasons and strong evidence of misconduct, and not just unsupported and false accusations. Candidates have a right to contest elections, but every state has laws and procedures for doing so. What Trump wants to happen is for legislators to just ignore those procedures — to break the law. Responsible Republican elected officials and Republican judges (and of course plenty of Democrats) are refusing, and explaining how dangerous all of this is.

(To be clear: There’s a farfetched theory that the wording of the Constitution gives legislatures unusually strong powers within state governments when it comes to presidential elections. But no one thinks that those legislatures, once they’ve determined that presidential electors will be chosen by popular vote according to various rules and regulations, can come back after those elections and change their minds and award the electors to the candidate of their choice. That’s not how the law works.)

So what should be done? One way to look at it is pretty simple. Trump has (again) violated his oath of office and committed obviously impeachable offenses. He therefore he deserves to be impeached, removed and disqualified from holding any future office. The case is straightforward. He’s clearly attempting to break the law and undermine the constitution. It’s clearly a major violation, not a trivial one. And yes, there’s plenty of time to impeach him if 218 members of the House and 67 senators were willing. There are no mandatory procedures in impeachment and removal (although there are precedents), and there’s no real question about the evidence in this situation, since Trump is openly trying to overturn an election he lost. If Congress wanted to, they could get it done in a week.

Impeachment, however, is a political act, not a judicial one. It’s clear that Republicans in Congress have no appetite for punishing Trump’s behavior; to the contrary, a fair number of them are fully committed to joining his attempt to violate the Constitution, and most of the rest are simply ducking the issue. Democrats, with their House majority, could decide to impeach Trump for a second time only to have him survive a second time, and doing so would hardly be unreasonable. However, it’s clear by now that impeachment (along with acquittal) would do nothing to pressure Trump to obey the law and the Constitution. Nor would it likely have any other positive effect. To the contrary: All those Republicans who are currently staring at their shoes and saying nothing would likely wind up endorsing Trump’s actions, which is even worse than having them stay quiet about it.

This is without doubt extremely unsatisfying for defenders of the republic. Nor is it all that reassuring that only some Republicans have actively joined Trump’s attempt to undermine democracy. It’s too easy to see things getting worse the next time around. I suppose the most optimistic thing I could say is that it’s easy to overestimate the antidemocratic faction with the Republican Party, mainly because the president is squarely part of that group. But it’s unfortunately easy to imagine that faction growing considerably during Joe Biden’s presidency.

1. Natalie Jackson on the polls in 2020 and how everyone involved could do better.

2. Katy Pearce on social media and the Armenia-Azerbaijan war.

3. Robert Farley on Space Force.

4. Nathaniel Rakich on Trump’s popularity — and Biden’s.

5. Ross Douthat on believing in vote-stealing conspiracy theories.

6. E.J. Dionne Jr. has a nice one about anti-Trump conservatives. The main thing I’d underline is that a Burkean conservatism — the impulse to remember that things could be worse, and can be made worse even by those with the best of intentions — is the farthest thing from the radicalism of Newt Gingrich, Rush Limbaugh and Donald Trump.

7. And my Bloomberg Opinion colleague Andreas Kluth on the vaccine and poor nations.

Published on December 7, 2020, 7:53 AM EST

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