What happens if Trump brazens out impeachment?

Welcome to '90s hell

President Trump.
(Image credit: Illustrated | Mark Wilson/Getty Images)

The president of the United States has been credibly accused of a felony. What now?

For the time being, the answer from the right side of the aisle is: not much. The investigations continue, additional indictments will no doubt be brought, and likely additional convictions. As Josh Barro points out, the system is working at bringing to justice the extraordinary collection of criminal misfits Trump has surrounded himself with, if not yet Trump himself, and the Republican Party has every incentive to keep letting that system work while saying as little as possible about it.

That will change, though, if and when the Democrats take the House. A Democratic takeover will certainly result in hearings on subjects threatening to the Trump administration, including the conduct of the 2016 campaign, alleged corrupt dealings by members of the administration, the finances of the Trump Organization — and they'll have the power of the subpoena to compel testimony.

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But ... what then?

From the tenor of screaming headlines, one would get the impression that eventually something will be revealed that makes it impossible for the president to remain in office. He'll have to resign — or he'll be removed via impeachment. He can't just brazen it out forever.

That's far from certain, however. Depending on what further evidence emerges, and how the public reacts to it, the president could brazen it out, for far longer than his opponents like to admit. It's worth thinking about what that would look like, and what the consequences might be.

Suppose, for example, the House of Representatives under Democratic control took up articles of impeachment on the basis of Michael Cohen's statement that he knowingly broke campaign finance laws under direct instruction from then-candidate Trump. The case would appear to be open and shut: If committing a felony in order to win office isn't a high crime or misdemeanor, what is?

But making false testimony, the charge against President Bill Clinton, was also a fairly clear violation of the law, and a serious one, and the House GOP felt it justified impeachment. And yet, the Senate failed to convict. Clinton's party stuck with him — and were joined by a handful of Republicans — because impeachment was unpopular. It was unpopular for many reasons: because the perjury charge was wholly unrelated to the original investigation; because, to many Americans, it felt like what Clinton was really being charged with was having a sleazy sexual history rather than any serious crime; because times were good generally and the president got the credit; and because there was widespread belief (with some justification) that Clinton was far from unique in his behavior.

Many of the same things can be said about Cohen's allegation against Trump. The president's alleged crime is spending what he saw as his own money to secure his own election; most of those who support him probably won't understand why that's a crime at all. It surely hasn't been lost on anyone that hiding sleazy sexual behavior was the reason for the campaign finance violations in the first place. And it is a dead certainty that the GOP base believes that the Clintons have made far worse end-runs around rules limiting campaign finance and self-dealing. The same kinds of excuses could be made for any number of other charges — even some of the most alarming.

All of which means it's highly likely that unless either Mueller's investigation or an empowered Democratic House digs up something that changes GOP voters' minds about Trump, even if he's impeached, he'll beat the rap.

The Democrats surely know this. The odds are, they'll have to impeach Trump anyway, because their base will demand it — just as the GOP had to impeach Clinton in 1998. And they will tell themselves — with some reason, and in much the same spirit that the 1990s-era GOP did — that even if they can't win a conviction, they'll force the Senate to explain why its giving the president a pass, and then exact a price come election time for giving him that pass.

But the GOP wasn't able to exact any such price at the ballot box. They actually lost seats in 2000, while their presidential nominee was barely able to squeak out a slight Electoral College victory (itself much contested) on the back of a popular vote loss. The Democrats might be more successful — Trump remains deeply unpopular, after all, and in any objective sense the charges against Trump are far more serious. But they might fail, and see the GOP rally ever harder around their corrupt standard-bearer, and wear the badge of condemnation as proudly as they wore the epithet "deplorable."

Impeachment in partisan times asks the side of the accused to affirm they're distinctly and specifically at fault, to the point that they cannot be trusted with the enforcement of the law — and to accept those accusations from their hated opponents. To achieve that acceptance requires separating the accused from his supporters, convincing them that his crimes were crimes against them, not crimes undertaken for them and against their opponents. The law itself ultimately rests on a foundation of political consensus, the belief that all sides benefit more from a fair application of neutral rules than from undermining them for the sake of short-term advantage. And political consensus has been in short supply these days.

The irony is that making the GOP pay a severe price for failing to convict will require the very thing that would likely have delivered a conviction: a winning political argument, not just a winning legal one.

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