If there’s one thing we have learned about Donald Trump over the last four years, it’s that he’s not very creative and entirely predictable. So it’s not surprising that the recording of Trump’s hour-long shakedown to get Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes in his favor (exactly one vote higher than his current deficit against Biden—smart!) had clear echoes of Trump’s “perfect” phone call in July 2019 to Ukraine President Volodymyr Zelensky.
Once again, Trump tried to leverage his authority to help his own electoral outcome. Once again, he relied on explicit and implicit threats to try to make it happen. And once again, he failed and the call leaked.
As usual, legal eagles on Twitter and on cable news have focused on Trump’s potential criminal violations of U.S. and Georgia law against election fraud. This, too, is entirely predictable. After all, it’s tempting to figure out if Trump broke the law, because that would provide a clear, objective standard against which to declare his actions as wrong. But, like the title of Mary Trump’s book about her uncle, using a criminal yardstick to measure Trump’s behavior is both too much and never enough. It’s too much because the bar for criminality is very high: Criminal codes penalize very specific conduct, which include several individual elements and a particular state of mind on the part of the defendant. Gathering all the required evidence, and proving each element beyond a reasonable doubt, is no small feat either in time or effort. It’s never enough because our criminal laws lay out only the most basic requirements we expect from someone in society; I expect the person who works at IKEA and my next-door neighbor not to commit election fraud. I expect much, much more from the president of the United States.
That’s why Congress should also be uncreative and predictable and follow the exact same playbook as it did in the aftermath of Ukraine: impeachment. Now, naysayers will roll their eyes. They will point to Trump’s last impeachment and say that after all that, he wasn’t even removed from office. Others will shrug and ask what the point would be, even on the remote chance he was removed, given that the election is over and Trump’s term ends in only 15 days. My answer to them would be that even if he’s not removed, and precisely because there is so little time left in his term, impeachment is the only thing that can achieve what our criminal laws cannot.
For one thing, articles of impeachment account for the fact that particular conduct is bad, even if it might not violate the law, because it was the president who did it. Let’s take the guy who works at IKEA as an example. If IKEA guy called up the Georgia Secretary of State and asked him to fabricate votes, that would be bad. It’s also possible that state or federal police might investigate. But no one would argue that any elected official would actually stay on the phone with this person for an hour, much less feel any real pressure to succumb to his demands. By contrast, the president holds real power and real authority. Political threats—like refusing to endorse someone in an election—and legal threats—like criminal investigation—for not acquiescing to his demands have real consequences and create substantial pressure to comply. There is a difference when the president does it—and it’s why abuse of power isn’t an ordinary crime, but it is a high crime and an impeachable offense.
A second reason impeachment is necessary is because Trump’s actions in this particular case embody almost every fear that the framers of the Constitution tried to guard against. In addition to Trump’s obvious self-dealing in trying to (ab)use his power to benefit himself, personally, he trampled on the principles of federalism in using his authority to strongarm state officials and interfere in purely state matters. He also attempted to obstruct justice—not necessarily in the criminal sense, but in his refusal to acknowledge court decisions that have already rejected his claims and his effort to secretly work around them. And, of course, he clearly hoped to disenfranchise millions of voters and establish rule by fiat, something our founders expressly rejected in rebelling against King George III in the first place.
If you could encapsulate every structural pitfall, character defect, and opportunity for tyranny that our Constitution tries to guard against into a single phone call, this would be it.
Finally, impeachment would be a clear warning for any would-be authoritarians in the making. It’s clear that there are already some politicians, like Senators Josh Hawley and Ted Cruz, who are already adopting the Trump playbook with plans for 2024. Impeachment establishes a red line for behavior that is incompatible with the office of the presidency, and also provides a precedent for punishing someone who engages in that conduct. Indeed, the very fact that Trump was impeached for an election quid pro quo with Ukraine makes it easier to impeach him again—he was already put on notice that this exact behavior would be punished. And forcing Trump to bear the ignominy of being the first president to be impeached twice—including as a lame duck with only two weeks left in his term—would be a reminder to those who follow in his footsteps that their legacies are at stake.
All of this isn’t to say that Trump can’t also be investigated and prosecuted criminally. But real criminal cases aren’t like Law & Order, which go from start to finish within an hour. They take time, can be difficult to pursue (especially when the subject is a former president), and aren’t guaranteed to be successful.
Impeachment is a bird in the hand, and can send a message to Trump, and the world, that the presidency has standards. It can affirm that the principles set out in our Constitution mean something. It can serve as a warning to future presidents. And, if down the line, Trump ends up also donning an orange jumpsuit, that will just be icing on the cake.
