Campaign Action
From the beginning of the investigation into Trump’s contacts with the Russian government, Trump apologists have been quick to point out Justice Department decisions indicating that a sitting executive cannot be indicted. There has been, and continues to be, vigorous debate over whether there genuinely is some carve-out in law that would permit mass murder on Fifth Avenue without legal consequences, but most reports continue to behave as if Trump’s freedom from indictment is a given. Trump attorney Rudy Giuliani was explicit in his statement to CNN concerning the ability of the special counsel’s office to file indictments against Trump as they have against so many of his associates: “All they get to do is write a report. They can't indict.”
The evidence for that is questionable. The only reason to believe Trump is exempt from indictment is the rather convoluted logic that indicting the executive would be so distracting as to create problems for the nation. But even if that were true, there are already multiple solutions in place to address an executive incapacitated by anything from an operation to insanity. There’s no reason to believe that an indictment, even if it required full-time attention, should be treated any differently than a particularly debilitating kidney stone. Presidents are human beings. They get sick. And they can get indicted. Trying to rule out one is about as reasonable as trying to outlaw the other.
However, whether or not indictment is arbitrarily removed from the table, there’s a very, very good argument that we should rehabilitate the whole idea of impeachment. Just because impeachment has failed in the past, just because its use, or misuse, has generated at least the perception of political pushback, doesn’t mean that impeachment isn’t an important—even a vital—tool.
The Constitution doesn’t say the president is always exempt from indictment. It says he is also subject to impeachment. And the threat that impeachment may be used, damn the political torpedoes, full speed ahead, has to remain on the table, at all times, if there is to be any constraint on the executive.
Writing at the Atlantic, Yoni Applebaum made the argument for impeaching Trump in advance of the latest revelations of obstruction.
The electorate passes judgment on its presidents and their shortcomings every four years. But the Framers were concerned that a president could abuse his authority in ways that would undermine the democratic process and that could not wait to be addressed. So they created a mechanism for considering whether a president is subverting the rule of law or pursuing his own self-interest at the expense of the general welfare—in short, whether his continued tenure in office poses a threat to the republic. This mechanism is impeachment.
Impeachment is not, and should not be, a replacement for indictment. Indictment is there to deal with the actions of the individual as regards the law. Impeachment exists to safeguard the nation against the individual’s actions. Neither precludes the other. But anyone arguing that indictment is impossible must believe that impeachment should be readily and responsibly considered.
Impeachment must never be unthinkable. It should be eminently thinkable. The possibility that action could lead to impeachment should be always apparent, and the idea that impeachment is an absolutely extraordinary remedy whose application can never be contemplated is itself a part of the problem.
It is absurd to suggest that the Constitution would delineate a mechanism too potent to ever actually be employed. Impeachment, in fact, is a vital protection against the dangers a president like Trump poses. And, crucially, many of its benefits—to the political health of the country, to the stability of the constitutional system—accrue irrespective of its ultimate result. Impeachment is a process, not an outcome, a rule-bound procedure for investigating a president, considering evidence, formulating charges, and deciding whether to continue on to trial.
Democrats in the House of Representatives are at this point investigating the evidence behind allegations that Trump directed his attorney, Michael Cohen, to lie to Congress about his connections with Russia, and specifically about a real estate deal that would have potentially earned Trump hundreds of millions of dollars. Or more. That deal provides more than enough incentive for Trump to have participated in a conspiracy involving the 2016 election, and it certainly seems to have been adequate to trigger obstruction, suborning perjury, and an ongoing effort at witness tampering.
Right now that deal goes by the name of the Moscow Project. Should the circumstances detailed over the last day turn out to be true, they’re likely to acquire a catchy label of their own: Article I.