“Let the people decide for themselves!” cried White House Counsel Pat Cipollone Wednesday, warning senators not to even think about pushing Trump out less than 10 months before an election.
Hmmm: Where have I heard that one before?
Flash back four years, to when Justice Antonin Scalia died and, while his corpse was still warm, Mitch McConnell said: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
That was a blatant abuse of legislative branch power, one of the most corrupt procedural moves any senator has made since the days when the old segregationists used whatever tricks they could to hold up civil rights bills. Also a total Hail Mary pass, because as McConnell spoke those words in February 2016, no one thought for a second that Trump was actually going to become president and most everyone thought it would be Hillary Clinton. But the bet came up a winner, and McConnell got away with the kind of black-is-white/up-is-down logic at which the Republicans have become so skilled. He cloaked his anti-democratic maneuver (denying a constitutional prerogative to a duly elected president who won by a very comfortable margin) in the language of democracy (let the people decide).
So it is here. They can thump on all they want about Federalist this or Hamilton’s letter that, but the fact is that impeachment is in the Constitution. There’s no time frame on it. The Constitution doesn’t say, “Of course, we think you shouldn’t do it to a president within 10 months of an election.” It says the Senate may convict, period. Just like it says the President shall nominate people to fill Supreme Court vacancies, and the Senate shall vote on that nominee. Nothing about short-circuiting that process in a president’s last year.
It’s total nonsense. Suppose that in, oh, July of a presidential election year, a president had a political opponent killed. Caught in flagrante delicto, as it were. Open and shut. And suppose that like Trump most of the time, he didn’t even bother denying it.
Under current law, the president couldn’t be arrested. That would have to wait until he left office. So the nation would be faced with two choices. Keep a murderer in the Oval Office, as the leader of the free world, or impeach him and remove him from office.
In that case, should the Senate just wait and “let the people decide”? Actually, if the president-murderer were a Republican, Midnight Mitch and Lawless Lindsey would undoubtedly say yes, which would give them and Fox plenty of time to concoct a story that the president was acting in self-defense, boldly preempting some “deep state” conspiracy. But the vast majority of Americans would presumably not want a murderer in the White House and would want him impeached and convicted.
And, of course, if it were a Democratic president, Mitch and Lindsey and the gang would be all for impeachment and conviction. They’d stand there before the very same cameras they stand before today solemnly telling us that it doesn’t matter whether it’s 100 days before Election Day or one, the Constitution imposes upon them this grave duty and they have no choice but to carry it out.
So “let the people decide” is not a principle. It’s an excuse. But to people paying only fleeting attention, it sounds like principle. Which they know. Which is what makes it so manipulative and cynical.
This isn’t a hypothetical question. Alan Dershowitz flat-out claimed this as a legal principle Wednesday, asserting that, “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
If only Nixon had known about this get-out-of-jail free card that Republican senators look ready to punch now for Trump.
But that’s not even the worst part of it. The worst part of “let the people decide” is that in our system as it now stands, the people don’t decide. In 2016, the people chose Hillary Clinton by nearly 3 million votes. They decided. They wanted Hillary Clinton to be the next president (and nominate that Supreme Court justice). But people don’t count in our system. States do.
Cipollone knows this, as do all the Republicans from McConnell on down who’ve taken to parroting the defense counsel’s line. And they know a couple other things, too.
One, they know that after they acquit Trump, he’s going to go right back to cheating and trying to rig the 2020 election. Dershowitz just gave him constitutional carte blanche to do it if Republican senators accept this logic.
And not only do they know Trump will go back to cheating; they quietly hope he will. This is because of the second thing they know.
Two, they know there’s a sporting (or better) chance that Trump is going win on the cheap again, but this time even worse. Trump could lose the popular vote this time by 5 million or more and still eke out an Electoral College win, as experts like David Wasserman and various others have written.
Assuming a vote of perhaps 145 to 150 million (about 137 million voted last time, and I’m guessing interest will be higher), 5 million is a lot. More than 3 percent. In any other election in this country, that’s case closed. The state laws that allow recounts typically allow them if the margin is less than 1 percent, or even .5 percent. Not 3.33 percent.
So no, in the United States of America, or the United States of Republican America, the people do not decide. The people chose Al Gore. The people elected Barack Obama to eight years in office, not seven, canceling out his appointment powers in the eighth year. And the people chose Hillary Clinton.
This is not partisan sour grapes. This is a crisis of a Constitution that was the product of compromises made with slaveholders. Today, the slaveholders’ descendants likewise have us by the throat and hide behind “the people.” Poor Merrick Garland learned that the hard way. But so have we all.