The impeachment proceedings against former President Donald Trump in the Senate begin on Tuesday. Whether the process is important at all is an open question.
Impeachment requires a two-thirds majority in the Senate, and it seems clear that there aren't enough votes right now to cross that threshold. In late January, 45 Republicans voted in favor of Senator Rand Paul (R-KY) 's motion to dismiss the entire idea of bringing a former president to justice as unconstitutional – far more than the 34 votes required to block the conviction. "If you voted for it to be unconstitutional, how in the world would you ever hope to convict anyone for it?" Paul asked rhetorically about it – and he was right.
Of course, many of these Republicans understand very well that Trump's behavior before and during the Capitol uprising is unjustifiable. But for fear of the backlash from their base, they plan to acquit anyway and take up the questionable constitutional argument to avoid Trump having to be defended on the matter.
Somewhat paradoxically, this is why the process is really important. Not because it will be possible to punish Trump, but because it will likely not succeed.
The central fact of American politics today is that one of the country's two major political parties is broken. Not just wrong, but fundamentally broken, anti-democratic and unable to serve as a bona fide partner in government.
Trump repeatedly tried to overthrow a legitimate election, which resulted in the instigation of a mob that threatened the lives of members of Congress. However, Republicans on this body cannot bring themselves to impose the appropriate constitutional penalty for this type of crime, even after he has resigned and is no longer needed to approve judges and pass tax cuts.
Democracies require accountability to function. Political elites must be held responsible for serious mistakes and punished accordingly. The collapse of the GOP has destroyed that possibility – but the Senate trial is a necessary step to defend against.
Pro-Trump rioter Jake Angeli in Congress on Jan. 6. Win McNamee / Getty Images
This is true even if the process is unlikely to get a single Senate Republican to change his or her vote. It probably won't make even many ordinary Americans change their minds.
Otherwise the trial against the Senate will fulfill a necessary function. It will show that even in the dramatic event of an outright uprising against the US government, the country's political system is unable to hold the elites accountable largely because of the extreme partisanship of one party. Demonstrating this will serve as a justification for the people, Democrats and civil society to take more dramatic steps to repair American democracy across the board – including calling for significant reforms to the political system.
Democratic political systems are not saved by dramatic action. They are rebuilt through an iterative process in which different parts of the country's system work to restore credibility and restore consensus on democratic norms. Trying to hold Trump accountable – even if those efforts seem doomed – is part of this larger project.
Some things are so important that they must be tried to show that you did it.
We have to look back
Some observers – and not just Partisan Republicans – examine the dire chances of a Senate conviction and conclude that impeachment is a waste of time.
"President Biden has a long list of things he wants to achieve," writes journalist Michael Kinsley in Persuasion. Impeachment "doesn't cut Trump's term of office by a day or improve Biden's agenda by 0000.01%."
This is the same logic that the Obama administration used 12 years ago when it chose not to pursue a criminal investigation into the architects of George W. Bush's torture policy: "A belief that we must look ahead rather than behind to look back, "as President Obama said at the time.
The logic is seductive, especially for new leaders like Obama and Biden who are charged with cleaning up the mess that their predecessors left behind. But Obama's refusal to prosecute torture is viewed by many experts as a mistake, even though there are strong indications of high-level criminal behavior. It has been a major factor in creating an overall climate of impunity in the United States, in which elites have few personal consequences for behavior and enormous consequences for society.
"If there is a culture of impunity, it started there," says Kathryn Sikkink, a Harvard University professor who studies human rights persecution.
Protesters in Guantanamo Bay prisoner uniforms march past Capitol Hill in Washington, DC on January 9, 2020. Brendan Smialowski / AFP / Getty Images
There are many reasons why the January 6th uprising took place. But one of them is that President Trump and his allies were confident that people like her in the United States would have few consequences for their behavior – no matter how outrageous it was, even to the point of threatening the stability of the democratic political system itself.
“I think Trump and Co. I also thought that there would be little consequence for trying and failing. That said, a failed coup would be cheap, at least for them personally. That's why it's so important to punish them, ”writes Jay Ulfelder, a Democratic Collapse scholar at the Carr Center for Human Rights at Harvard. "If you want to keep her from trying this crap again, you have to change her expectations about how painful it will be to try again and fail."
How do you get real responsibility for Trump? Here it is worth turning to the late Guillermo O’Donnell, one of the leading scholars of endangered democracies in Latin America.
O’Donnell distinguished between two general methods of punishing politicians for wrongdoing in a democracy. "Vertical accountability" is when citizens hold government officials accountable; "Horizontal accountability" is when government officials hold each other accountable. A fully stable and healthy democratic system, according to O’Donnell, has several accountability mechanisms – a series of overlapping vertical and horizontal power controls to prevent an official or branch of government from abusing their authority.
Elections are the main mechanism of vertical accountability in a democracy, a direct method for the people to reward or punish elected officials for their performance. But the election defeat, even the loss of both the presidency and the Senate, did not stop Trump and his GOP allies from engaging in anti-democratic behavior. In fact, the electoral defeat caused the president's actions: he was reprimanded by the voters and tried to take power anyway.
In cases of such serious anti-democratic behavior, horizontal accountability becomes even more important. Political elites need to hold the line and control each other to make sure this doesn't happen again.
This is the easiest case for impeachment. In the American political system, the impeachment process of presidential misconduct is impeachment. Trump's behavior in this case clearly amounts to "high crimes and misdemeanors". The House has a moral obligation to indict him, and the Senate has one to try to convict him.
This case also applies if the infliction of specific consequences – condemning Trump and expelling him from future office – is unlikely. It's important to work through the legal accountability mechanisms available before moving on to anything more radical.
Like changing the laws yourself.
Republicans too must face the consequences
The need for consequences also leads to the strongest objections to the Senate impeachment process: regardless of intent, acquittal would tend to increase rather than undermine the impunity of the elite.
Trump had, of course, been charged and acquitted before. The most recent impeachment also focused on an assault on electoral integrity: his attempt to convince the President of Ukraine to open a criminal investigation into Biden during the 2020 election cycle. His Senate acquittal at the trial seems to have convinced him that he could get away with anything as long as he had the support of 34 senators – and in fact, it seems he was right.
Wouldn't another acquittal reiterate the same point and provide further evidence that elites are truly immune to the consequences?
This logic only applies if you assume the impeachment marks the end of American reckoning with the Trump legacy. But that's a mistake.
Trump's impeachment underscores the nature of America's current impunity problem. It's not just that elites are protecting their own, though that's certainly part of it. The fact is that either of the country's two political parties just doesn't think what it did was bad enough to take a political risk to punish it. That democracy itself has been attacked – that they have been attacked personally – is less worrying to them than the prospect of a Trumpists' primary challenger.
Fighting impunity and restoring accountability is not just a matter of concrete punishment for President Trump: it means identifying and punishing those who apologized and defended him, especially those who are a Republican party (like me argue for years)) has been adopted by its authoritarian, right-wing extremist elements. They allowed Trump's wrongdoing for years because the grassroots loved it and it was politically useful to the GOP leadership. Now, even after Trump is out of power, the same forces are conspiring to thwart accountability.
Senator Josh Hawley (R-MO) speaks during a Senate debate to ratify the 2020 presidential election at the U.S. Capitol on January 6, 2021. Congress.gov/Getty Images
The problem of a broken political party is not what you fix in one fell swoop. There are no West Wing solutions, a crucial meeting between Biden and Mitch McConnell where the president's sweeping rhetoric persuades his rival to turn the GOP around. What is needed instead is a diverse and sustained effort by various sections of American society – Democrats, but also civil society and ordinary people – to try to repair the cracks in America's democratic consensus.
Political scientists sometimes describe democracy as an iterated game: a group of people who play the same game over and over again and adjust their expectations of the rules accordingly. Every action changes the way people see themselves. Over time, even small actions add up to those that define the new rules of the game.
The impeachment proceedings against the Senate are one of those small actions. Trump's almost certain acquittal will show who Republicans are and what they are willing to tolerate. It will equally show that Democrats are willing to spend energy and time punishing them for doing so. It will send a signal that at least some elements of the American political system are concerned with accountability.
And perhaps more importantly, it will also serve as a justification for bigger things in the future.
In classical just war theory there is the view that war can only be justified if it is a "last resort". Since armed conflict is inevitably associated with considerable death and suffering, a country can only be justified after it has tried all other possible options – diplomatic negotiations, economic sanctions, etc. – to resolve its dispute with another country.
To really fix America, the Democrats need to engage in some kind of partisan war: they need to cost not only Trump, but the Republican Party, which enabled him, for past wrongdoing. Basically, they need to roll back the anti-democratic practices – such as extreme gerrymandering and voter repression tactics – that allow Republicans to remain competitive while, above all, targeting the most reactionary elements of the American public.
There are no costs politicians pay more attention to than election costs. And if in the future Republicans can't win by hugging leaders like Trump, they won't find it so convenient to apologize for anti-democratic abuses across the board.
The tactic that Democrats will have to use – particularly the radical overhaul of the filibuster to allow for democracy-friendly legislation to be passed along the party lines – will appear extreme. But they will be more justified, also to moderate democrats like Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ) – in a world in which it is clear that the normal levers of political accountability are broken. This is one way of showing that radical procedural reform is really a "last resort".
Failure to condemn Trump again will further underscore that impeachment is a paper tiger, at least for Republican presidents. But the horse is already out of the stable. Try and fail again when the anti-democratic crime is much larger and the cost of convicting Republicans is much less will help underscore how much they are complicit in the events of January 6 – and the case for others, Democrats, justify and non-politicians alike to punish them accordingly.
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