Will the legislature fight back?
As Congress considers a second impeachment of President Trump — this time for incitement to insurrection — it's worth stressing the considerable differences from the last outing, when he was impeached for corrupting American foreign policy to aid his re-election effort.
The most important difference: This time, it's for real.
By that, I don't mean to suggest the advocates for impeachment in 2019, or those who voted to convict Trump, weren't sincere. There was absolutely a case for Trump's impeachment and removal from office at that time, and, in retrospect, it would have done the republic a great deal of good if he had been removed, as even some then-dubious right-wing observers have come to conclude.
But that impeachment was conducted with no real expectation of, nor plan for, success. The result was over-determined, driven by demands of the Democratic base that long predated the crimes that Trump was charged with. It came to be viewed as a purely partisan exercise, and as a result Trump's exoneration strengthened his hand within the GOP and emboldened him in his belief that he was above rebuke.
We're seeing the consequences of that failure now, which is precisely why this next impeachment cannot merely be an exercise. The Animal House Putsch — which is, I think, the right term for such a futile and stupid gesture — would be alarming if it had no institutional support. It is the president's incitement, though, that takes the danger to an entirely different level, which is why prosecution of the putschists — which needs to be swift and forceful — will not excise the danger. A line needs to be drawn, and he needs to be removed.
Precisely because it is necessary, though, it is also risky. The GOP has always had an incentive to muddle through and continue coddling this violent, extremist, and anti-democratic tendency, much as the Japanese military and political establishment did in the 1930s, with ultimately disastrous results. Those incentives remained in place even after the Georgia Senate elections — the Democratic victories in which may be credited in part to Trump's increasingly unhinged refusal to concede — because they can also be credited to Trump's absence from the ballot (turnout was robust everywhere, but fell more in overwhelmingly Trump-favorable districts than in districts that Biden won decisively). The right may feel itself caught between a rock and a hard place, unsure that they can win either with or without Trump. That's why the incentive to muddle through persists even now, after the attack on Congress, because that attack has substantial popular support, which the president remains able to command.
If impeachment is to proceed, then, it must proceed to conviction. That means lining up the votes, which means an appeal to interests, and not just to principles. This needs to be a victory for democracy, in which the right has a share, and not for the Democratic Party.
Those interests come into play in two ways. The most obvious is institutional. The riot on Wednesday was an attack on Congress, an attempt, however incoherent, to stop the legislature from doing its job. Precisely because it had the support of the president, though, it was not merely an eruption of mob rule, but yet another escalation of the president's efforts to overturn the election, first by legal means (his various unsuccessful court challenges), then by fraud (his unsuccessful pressuring of state officials to falsify the results), and finally by force. If Congress does not rebuke this act by the means it has ready at its disposal, then it will have declared by its silence that it accepts the legitimacy of the assault by the president, and faults only his easily-led goons. Any GOP senators who value their own power — and Mitch McConnell most certainly does — should readily discern how frayed the thread is by which that power now hangs, and should be ready to do whatever is necessary to restore it.
That appeal poses no difficulties for Democrats. The other way that interests come into play, though, is ideological, and therefore does pose considerable difficulties. Mitch McConnell has often said that his goal is always to achieve the most right-wing outcome possible in any situation, and his behavior in office tracks with that characterization. The Democrats now have unified control of the government — by a whisker — and McConnell can therefore achieve his preferred right-wing results by being as obstructive as possible, and putting maximum pressure on the most conservative Democrats — Joe Manchin of West Virginia, Krysten Sinema of Arizona, and John Tester of Montana — along with other Democrats who might be vulnerable to a challenge in 2022 like Maggie Hassan of New Hampshire and Catherine Cortez Masto of Nevada. He can only pursue that strategy, though, if he has a united caucus — which he will not have if he votes to convict Trump. That is a powerful incentive for him to hold the line, and vote to acquit. It is imperative, then, that Democrats offer a carrot as well as a stick — that there is a real prospect for substantive cooperation on future legislation even when they don't need the votes, and that if given that opportunity the unity of McConnell's caucus will break anyway.
It isn't too hard to imagine impeachment passing the House and winning a handful of GOP senators. Mitt Romney of Utah is probably a given, and Ben Sasse of Nebraska has already indicated his willingness to consider it. Between moderates like Lisa Murkowski of Alaska, future retirees like Pat Toomey of Pennsylvania, and vocal opponents of Ted Cruz's theatrics like Todd Young of Indiana, a handful more votes are possible. But conviction requires 67 votes, which means 17 Republicans, and the restoration of democracy, and of the authority of the legislature, requires at least that much. That means self-styled principled right-wingers like Rand Paul (Ky.) and Mike Lee (Utah), old bulls like Chuck Grassley (Iowa) and Richard Shelby (Ala.), and key party leaders John Thune (S.D.), and, ultimately, Mitch McConnell himself.
McConnell said Wednesday that his vote to reject the objections to the Electoral College count was the most important of his career. What would convince them that another vote, equally if not more important, is impending, and that it is in his interest and his party's interest to vote to convict and remove the president?
That's the most important political question of the moment. And that's who it's being asked of. Advocates of impeachment and conviction should frame their arguments accordingly.