Democrats Are Making a Mistake By Pursuing Articles of Impeachment Republicans Won’t Join. Or Not…


Photograph Source: Phil Roeder – CC BY 2.0

The Democrats appear to be set to commit another tactical blunder by proceeding on a single article of impeachment against Donald Trump for incitement of insurrection. There is no doubt the House will sustain it, and it may even apply, though it is legally dubious. But there is next to zero chance that Senate Republicans will go along in the supermajority numbers needed to remove Trump from office.

The goal, if Democrats sincerely believe Trump remains a clear and present danger to the country every moment he remains President, should be to leave only one switch left for the Senate to throw to kick him out in the event of a new emergency. (The 25th Amendment gambit seems doomed, and the process is actually more cumbersome and uncertain than impeachment in the current circumstances.) And some number of Senate Republicans have signaled that they might be willing to sustain “reasonable” articles of impeachment.

On the other hand, if Democrats want to help Republicans drive a further political stake through their own party, presenting them with an impeachment opportunity they will decline might be a good way to do it. Only impeachment will bar Trump from re-seeking federal office (although flight and/or physical incarceration could prevent him from filling it). But he’s the Republicans’ own Frankenstein monster coming for revenge against them, his creators. Their battle with him, and their party fractures, benefit Democratic office seekers—provided the rest of us are spared his re-election to any high position.

Notwithstanding Trump’s grudging and equivocal denunciations of the Capitol siege (the second one flatly under the duress of his staff and advisors), no one doubts he will continue to lead his minions as a political force. Republican operatives’ long-running cynical calculation that they could court Trump’s base without disaster blew up spectacularly on January 6. More to the point, if the “good people” of the Proud Boys, Oath Keepers, QAnon, and assorted white supremacists who have Trump’s “love” for their dastardly deeds to date commit fresh acts of violence in the name of his “Election Steal” ruse, some portion of the fifty percent of Republicans who do not bless the riot may yet hold their reps liable for refusing to remove Trump.

Not because there is much logic to the notion that Republicans in Congress have the power now to stuff a genie they helped unleash back in the bottle simply by tossing Trump out a few days early. But because accountability collapses into a timeless, single moment for people based on outcomes, not causes. When protesters come to me asking for legal advice concerning potential consequences, I tell them it depends more on what transpires than on the technical criminal codes which apply to their particular acts. If the protest goes off generally peacefully, or involves limited vandalism, participants arrested on scene are likely to face no worse than misdemeanor charges by local law enforcement. If, on the other hand, major property destruction (especially of federal property), injury, or death ensue, they can anticipate major investigations, digital and physical searches, grand jury summons, and of course much more serious charges.

Similarly here, members of Congress were not inveighing against “sedition” and “insurrection,” or calling anew for impeachment, before the mayhem of January 6 (and the personal terror they experienced upon the breach of the People’s House, i.e. their own club)—even though that was a predictable culmination of Trump & Co.’s slow rolling coup attempt which has deserved repudiation and impeachment for months.

So if Trump and Trumpism quietly wither away (fat chance), Republicans might be crafty enough to rebuild a cohesive party from the tatters. But if Trump fully pits his fanatics against old guard Republicans (or they march on despite him, which seems likely), the Trump logo may finally burn Republicans’ chests like a Scarlet brand. And Democrats, who excel at meekness, could reap the spoils by doing what they do best—too little to stop it.

Apart from that, the left should watch its rhetoric. In typical liberal zeal to mint a specialized law for every offense, Democratic lawmakers and their media mouthpieces are calling for new domestic terrorism laws, and to treat everyone who participated in the Capitol siege as a veritable coup plotter. Although it’s refreshing to see the DOJ finally label white hate groups the number one violent domestic security threat, relieving non-violent environmental and animal rights activists of this moniker, sedition-style laws have always bitten the left way harder than the right. Existing criminal codes more than amply redress violent extremism, including a domestic terrorism provision enforceable through conspiracy charges and a stiff terrorism sentencing enhancement.

There was a coup attempt. But the MAGA zombies in comic book costumes who stormed the Capitol were the tip of a long spear wielded by Trump and his Republican official enablers. While they vex courts with built-in legal defenses (I was acting in the interests of national security on the President’s authority) and provide colorful fodder for evening news, the left should not miss any opportunity to assist Trump’s high ranking co-conspirators in committing political suicide.

We may never fully muzzle white supremacists. But these events provide a rare opportunity to muffle the dog whistles they hear by helping the Republican party split itself just about down the middle.

Ben Rosenfeld is a civil rights attorney in San Francisco. Twitter: @benrosenfeldlaw.

SOURCE: Counterpunch

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