The law will not save America from Donald Trump
The time has come to end the doomed drive to remove President Trump from office via impeachment.
We heard from 17 witnesses in the House impeachment inquiry. Their testimony has been entered into the record in the Senate trial. The House managers have had 24 hours to make their case. Yet everyone understands what the outcome is going to be. Trump is going to be acquitted. Calling additional witnesses isn't going to change that. So what are we doing?
What we're doing is watching Trump's most furious opponents lashing out at him as they have done over and over again since the president's inauguration (if not before). Their efforts haven't worked before and they aren't going to work now, and their refusal to face that fact doesn't speak especially well for them. Indeed, it reveals they misunderstand something crucial about political reality. Until they do a better job of mastering it, they will continue struggling to prevail against the man who so provokes their fury.
From the start of his administration, Trump's most hostile critics (center-left Democrats and Never Trump Republicans) have judged him to be not only a bad president but unacceptably awful — a virus potentially fatal to liberal-democratic government. Because Trump won despite losing the popular vote by nearly three million, these critics found themselves in an odd place: at once disgusted with how the institutions of American politics helped place such a man in the White House but also dependent on the legal and bureaucratic institutions of American government to swoop in to contain or neutralize him — like antibodies fighting off a dangerous threat to the body politic.
For much of Trump's first three years in office, this effort was focused on the Mueller investigation: Surely it would turn up enough evidence of wrongdoing, criminality, and even outright treason on the part of the president and his closest associates to trigger a process leading to his removal and prosecution.
That didn't happen. But then Trump foolishly (or predictably) did something else to send the antibodies back into action — and overdrive.
I've made clear from early on in the Ukraine scandal that I think Trump's attempt to extort the president of Ukraine to announce an investigation of Trump's political rival is an impeachable offense that warrants his removal from office. The problem is that impeachment and removal aren't automatic. They are politics conducted by other means: They require persuasion, and by that standard impeachment has already failed — because there is zero chance that 20+ Republican senators will vote to convict and remove the president from office.
It's probably the case that such persuasion was never possible. You can say this is evidence the system is broken, but that would be a political claim, too.
There is an underlying truth glimmering in claims of a broken system, though. It is that the distinction Trump's opponents continually presume and appeal to — laws, rules, and norms as things that stand above mere politics — simply isn't sustainable. Laws, rules, and norms are made through a political process, and the decision about how to apply them will always be a matter of judgment, which means it will be a matter of politics, too. This is true whether the judgment is being rendered by one or a handful of judges who were appointed by elected officials, a body of those elected officials (like the Senate), or the electorate at large.
This is something that Trump's opponents can't seem to learn or accept. Convinced that the president is a disease potentially fatal to the republic, they remain wedded to the belief or hope that he can somehow be expunged through legal or other formal means, allowing politics to return to normal. This path is appealing because it skips the uncertainties and delays involved in fighting to defeat the president at the polls.
But it's also appealing because it promises to confer greater legitimacy and decisiveness on the outcome. Law claims to speak for the whole political community. For example, journalists must describe an accused assailant as the "alleged perpetrator" when writing about a crime — but once a verdict has been rendered, the presumption of innocence is washed away along with uncertainty. The whole has rendered judgment, and the perpetrator can now be described as guilty. That's what Trump's opponents crave most of all: the tacit unanimous affirmation by all Americans of the self-evident awfulness of Trump.
How else to explain the gushing responses to Rep. Adam Schiff's bizarre closing statement for the House managers last Friday? Those who despise Trump swooned for it, proclaiming it nothing short of magnificent. That response reminded me of nothing so much as the outpourings one hears from parishioners at a charismatic church service. "Amen! Cast out the evil spirits! Make us pure once again!"
But what Schiff said to inspire this frenzy of praise made no sense. The line of argument was this: "Our case for convicting and removing Trump is incontrovertible. Yet if we aren't allowed to call more witnesses, this trial will be a complete sham." How can each part of that statement sit with the other? Either the case has already been thoroughly proven or a fair trial requires calling additional witnesses to establish proof. Both can't be true. A closing argument like that would be laughed out of a law school classroom. Yet there it was, floated by the leading House manager at the impeachment trial of a president, and those who were already convinced of the president's guilt before the trial began were driven into spasms of ecstasy upon hearing it while others were left cold.
That's because the trial is politics. Schiff was giving a political speech and it was received as such.
How many times are we going to play this game? How long will we let the fantasy of winning an extra-political pronouncement of Trump's awfulness dominate our public life? Trump isn't going to be removed from office through any kind of legal remedy. He can only be defeated at the ballot box. John Bolton's story is going to get out one way or another — if not in sworn testimony in the impeachment trial then in a thousand TV news spots and in a book that will be purchased by the millions. The story and its import for the president will then be tried in the only court that really counts: the court of public opinion.
A conviction there is the only thing that will rid us of Donald Trump.