Impeachment isn't what will hurt Trump most
There are two new projects to hold Trump responsible for his illicit behavior which have a distinct advantage over the Senate trial
The impeachment trial of former President Donald Trump will almost certainly end without conviction. But it's not the only means of accountability for Trump. In fact, it may not be the best on offer. There are two new projects to hold Trump responsible for his illicit behavior which have the distinct advantage of coming from people the former president believes beneath him.
The first is really a pair of investigations, both in Georgia and both concerning the recorded phone call in which Trump attempted to badger the state's governor and secretary of state into "finding" the exact number of votes he needed to claim victory there over President Biden. "There's nothing wrong with saying, you know, that you've recalculated" the votes, Trump insisted in the hour-long conversation in early January. "I just want to find 11,780 votes, which is one more than we [need to win]."
There actually is something wrong here. Trump may well have violated Georgia state law prohibiting "the solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election's administration," per District Attorney Fani Willis (D) of Fulton County, which includes much of the Atlanta metro area. Willis on Wednesday announced a criminal investigation into Trump which centers on the phone call. She reasons that hers "is the one agency with jurisdiction that is not a witness to the conduct that is the subject of the investigation."
That involvement has not precluded a concurrent investigation underway in the office of Georgia Secretary of State Brad Raffensperger (R), one of the officials who rebuffed Trump's pleas. This probe began two days before the Fulton County inquiry, and it's more narrowly focused on the fraud solicitation, election interference, and conspiracy allegations. After the probe is complete, Georgia's Elections Board will decide whether to send a referral for criminal prosecution to either Willis or the state attorney general.
The second accountability project is in Palm Beach, Florida, where Trump has been living at his Mar-a-Lago club since leaving Washington on Inauguration Day. Wednesday marked his third week of consecutive residence at Mar-a-Lago, but a 1993 covenant between Trump and the Town of Palm Beach caps any Mar-a-Lago member's residency at "three (3) non-consecutive seven (7) day periods ... during the year." Crafted because of neighborhood concern about Trump's plan to convert what was previously a private home to a place of semi-public accommodation, the agreement (signed by Trump personally) also bans the club from "result[ing] in a nuisance to any of the neighboring properties."
Trump has already violated the residency rule, and his presence there could be a source of nuisance. It "threatens to make Mar-a-Lago into a permanent beacon for his more rabid, lawless supporters," argued a lawyer for a neighborhood group attempting to block Trump from living at the property full-time.
Whether the Georgia inquiries or the Florida dispute will successfully impose consequences on Trump remains to be seen. But if they do — even if the penalties are minimal, and even though neither case touches the incitement issue on which the impeachment trial turns — my suspicion is Trump would feel himself much more punished than he would with a Senate conviction.
The reason is Trump's conception of social order, which I argued in 2018 is oddly medieval. In stark contrast to our individualist, post-Enlightenment age, legal codes in feudal Europe meted punishment less on the basis of the alleged crime than the status of the accused and the victim. The same crime committed against the same person could warrant different consequences depending on its perpetrator — a peasant robbing a noble, for example, would be subject to a harsher punishment than a fellow noble robbing the same noble of the same thing. This was justice, the thinking went, because the peasant's offense was not only robbery but upset of the rightful order of society by violating the property of his social better.
For Trump, the preservation of social hierarchy is likewise important, and, in his own mind, he is everyone's better. The more someone likes him and is like him, the better they are, too. He could take comfort in perceiving senators as near-peers: mostly fellow rich, white men elected to high federal office. "They did another fake witch hunt against me, folks," we can imagine him mewling at a future rally, "and they needed the ‘world's greatest deliberative body' to do it. They needed the big guns, folks. Nothing else could have even dared to come after me because it was so sad, so fake. We know it, and they know it."
But to be convicted after prosecution by Willis — a young, Black woman and a Democrat in county-level office — would be an immense indignity for Trump. Likewise, the most viable path for him to remain at Mar-a-Lago may be branding himself a club employee rather than a member. But could Trump stomach the lowliness of the label? (Other legal battles Trump faces would strike him variously by this measure; I suspect he'd find the defamation suits by women who allege he sexual assaulted them the most degrading.)
The great merit of these cases is precisely their humility. A Senate conviction would tell Trump he is not above American law. Decisions against Trump in Georgia or Florida would tell him he is not above his fellow Americans.