Monday, December 12, 2016

Why Trump Won't Be Impeached

In the wake of the election, I have received a number of questions from people in my everyday life about Donald Trump, and specifically about practices regarding the presidency.  "Why exactly do we have the electoral college?" and "what can he do without Congress?" and a whole helluva lot of "can he really do this?" of which the answers usually are, despite trying to give a happy spin (that's what they're looking for), "an antiquated system that hasn't made sense since Restoration," "more than you're comfortable with," and "probably, which is why you should have gotten your husband to vote rather than just avoid an uncomfortable conversation that now means you're going to be worrying about nuclear war for four years."  But no one question has been asked more than "can he be removed from office/how do we stop him from doing X?" and so I wanted to address that one here because the question is complicated, and one that is worth expanding on further in the wake of this weekend's CIA allegations confirming Russia's involvement in our elections system.

The reality is that the best way to stop Donald Trump passed little over a month ago-in fact, practically speaking, it was the only way.  On November 8th, people needed to vote for Hillary Clinton.  That was imperative to eliminating him as a threat.  The cliche was, in fact, true-it was the most important election of your lifetime.  If you didn't vote, you should be ashamed because you failed your country.  The fact that the country didn't elect Clinton, quite frankly, means that by-and-large we're stuck with Donald Trump for the foreseeable future.  There are a lot of policy changes he can (legally) do and we can argue pretty dramatically over whether or not he should be able to do them considering he lost the popular vote by a gargantuan amount (roughly the size of Chicago at this point), but people being too lazy to go to the polls in Wisconsin, Pennsylvania, and Michigan sealed the fate of the world on November 8th.  That was the only guarantee we had that Donald Trump wouldn't be president, and I'm sorry (sooooooo sorry) to say that that train has passed.

I've been asked a few times about whether or not Trump could be impeached prior to the election, and I want to point out something right now-technically the election hasn't happened yet.  The December 19th vote of the electoral college is actually the only vote that matters.  Trump has just presumably won the election since he received 306 electoral college votes on November 8th.  Theoretically (and I cannot underscore how theoretical this is because there is zilch evidence that this will happen), Trump could conceivably either A) lose the election if he fails to reach 270 electoral college votes, thus throwing the election to the House or B) lose the election outright if someone (Hillary Clinton, or conceivably someone else) were to win those rogue electors, enough to get to 270 votes.  The members of the electoral college are the only votes that actually matter; it's just historical precedence and a sense of civic responsibility that has largely made them a formality of our Constitution rather than actual arbitrators of the elections, since they largely go with how their state voted.  If there is a tie, or no one succeeds in reaching 270 votes, the House elects the president not based on individual districts, but based on states so California gets one vote vs. Wyoming also getting one vote.  Gerrymandering and split-ticket voting used to put this more in doubt (would moderates abandon their own party label in favor of how their state voted), but the reality is that, thanks to Pennsylvania, Michigan, and Wisconsin all going red, very few states have House delegations that don't reflect the way their state voted.  In fact, the only two that do are Maine (which is technically a tie in the House, even though statewide it went for Hillary Clinton) and Virginia (where have 4/11 seats thanks to gerrymandering even though Clinton won statewide).  So unless someone like John Kasich or Mitt Romney were getting a disproportionate amount of support from congressional delegations (unlikely, again, unless something major happened in the Russian hacking investigations), the House would deliver even if the electoral college didn't.

If the House stalemated, the Senate's choice between Mike Pence and Tim Kaine would become the acting president until the House either gave up (I'm not entirely certain how that would work since we'd be in uncharted territory there) or selected a candidate.  While the Senate technically has more ticket-splitting, it's questionable how many Democrats or Republicans would swap seats here, and either way the Republicans have a marked advantage here as 11 Democratic senators represent Trump states while just 3 Republican senators represent Clinton states.  If somehow the Senate stalemated (again, because Republicans split between two options), the Speaker of the House (who legally won't be elected until January 3rd) would assume the presidency until a candidate were chosen.  If (since we're already down the rabbit hole) the House stalemated there as well, the President Pro Tempore of the Senate (Orrin Hatch) would become POTUS until one of the previous elections were resolved.  Technically Hatch also stands for election, but (unchallenged) Senate tradition states that the most senior member of the majority party is always the President Pro Tempore, and as Hatch is A) the incumbent and B) has never had issues with his caucus, we would never run into a situation where no one would be eligible to be president.

This is all very fascinating (and filled with Aaron Sorkin-style fantasies from The West Wing he now wishes he could bring back), but not likely.  The most likely outcome for the election is that Donald Trump wins on December 19th, perhaps not with 306 votes (I anticipate a rogue elector or three), but certainly with more than 270 votes.  Therefore, the way to keep Donald Trump in check is actually Congress, and here's where the country has decidedly let us down, because the election on November 8th sent a dangerous message to Washington.

It feels like ancient history now, but keep in mind that headed into Election Day, Republicans were largely abandoning Donald Trump even though his poll numbers indicated a tightening race.  This is because no one, I repeat no one, was guessing a Trump victory-it was more a question of how much Clinton would win by.  Coming out of the election, lost in that conversation, is the fact that the Republicans that most publicly denounced Trump by-and-large lost.  People like Kelly Ayotte, Mark Kirk, and Joe Heck all went down in their general elections, after abandoning Trump, while others who stuck behind him such as Richard Burr and Roy Blunt won close reelections.  This means that not only did the country send a message that they liked Trump, but they also sent a message that they only liked Republicans who liked Trump.  This means that going against Trump imperils Republicans reelection bids, and since the thing that politicians care most about is, in fact, winning their next election, this gives them little incentive to denounce Trump because self-interest has taught them that they shouldn't.

This is not Washington's fault, in my opinion-it's the people's fault, and people who complain otherwise need to take a look in the mirror.  Our system of checks-and-balances has three branches of government for a reason, but the reality is that there is a fourth branch, and it's not the press (though they have an undue influence on the fourth branch): it's the citizenry.  We elect presidents and Congress, who then appoint the judiciary, and in theory if we don't like what the POTUS or Congress have to say, we throw them out of office for new leaders.  This gives them incentive to by-and-large give the people what they ask for, as otherwise they cannot continue to exert authority.  This system is based on the assumption that people will, in fact, punish politicians for doing something wrong at the ballot box.

November 8th shattered that illusion.  Despite the country hearing repeated attacks against women, minorities, and the military, and despite Trump showing strong proclivities to authoritarian regimes and clear evidence that Russia was exerting undue influence on our elections system on behalf of the GOP ticket, the people of the country still voted for Donald Trump.  Despite the fact that Republicans had stonewalled the government, leading to shutdowns and huge drops in institutional support for traditions, the Republican Party still won back both houses of Congress.  Despite demonstrably lying on the campaign trail, people simply wanted the GOP.  As a result of that, there is no real reason for Congress to pursue anything other than their current agenda, because the people showed that even when they nominate the worst human being possible, they still can win because people no longer care about the person, just the party.

That shatters, in essence, the ability to hold Trump accountable, which is truly scary but is reality.  The basic fact is that the only way to remove a president from office if he commits a crime is through impeachment (save for Article IV of the 25th Amendment, which has never been done before, and is more about mental capacity than anything else).  Impeachment only works if Congress feels like the public demand is so great to remove POTUS from office that they won't be punished for it at the ballot box, or that they will be punished if they don't pursue it.  Past incidences of this have shown that people don't like impeachment; Bill Clinton, despite arguably committing perjury during the Lewinsky scandal, won back much public support when people thought he was being impeached over his affair (Democrats successfully framed the trial this way), which deterred future Congresses from attempting impeachment over things like the lack of WMD's or the Fast-and-Furious scandal.  Barring something unprecedented, it's hard to imagine dozens of Republicans risking their careers in primaries by voting out Donald Trump even if he did something deeply illegal, because they know that they won't be punished by general election voters as evidenced by November 8th.  The fact that so many are willing to side with Trump over the CIA shows that even matters of national security are not enough to compel them to act outside their own self-interests as elected officials.

Because that's ultimately what happened that Tuesday-we sent the message that we don't care.  The states that sent 306 electors genuinely said "I don't care who the president is, as long as he's a Republican," and that is the message that will come across.  That will affect policy in ways you can't even imagine right now, but it also has severely damaged our checks-and-balances system to the point where nothing short of a 1974-style landslide would probably disrupt the institutional lack of ethics in Washington.  And that's not Congress's fault-no matter how much you want to blame them, it's on the American people, not Congress, to send a message of what we consider to be wrong or right.

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