Americans seem to largely agree that President Donald Trump is a criminal. Recent polling supports that claim: 54 percent of American voters say Trump “attempted to derail or obstruct the investigation into the Russian interference in the 2016 election,” while 72 percent say Robert Mueller conducted a fair investigation. Despite the president’s bluster about how the Russia hoax has “stollen” two years from his presidency, for which he thinks he ought to seek “reparations,” most Americans understand that the president threatened his staffers who sought to cooperate with the Mueller probe. They understand that he tasked others with limiting the scope of the probe and with firing Mueller, and that he instructed his legal counsel to falsify documents to clear him of obstruction. None of this is even disputed. The only question is whether he can be charged for it while he remains in office.
In an astounding letter released Monday, 400 former prosecutors contend that, were he not president, Trump would have been charged with obstruction. Virtually nobody other than Attorney General William Barr accepts Barr’s analysis that obstruction was never even on the table. Instead, the public is intuitively reaching a similar conclusion to Mueller’s: The president committed crimes, but as a sitting president, he cannot be indicted while in office. Which means that, again, the remaining question is what to do about the fact that the president committed crimes. (One can also ask why criminality is the only bar we have set for ourselves, but that’s perhaps beside the point.)
On Saturday, the New York Times published an article indicating that Speaker of the House Nancy Pelosi doesn’t want to seek impeachment because she’d rather focus on winning the 2020 elections by huge margins. Somehow, even as she conceded that “Trump would not give up power voluntarily if he lost re-election by a slim margin next year,” Pelosi placed her confidence in massive margins being the one thing the president would respect. On some level, Pelosi is correct to fear the spectacle of a protracted public impeachment battle, but the notion that Democrats should somehow circumvent a president who evinces no respect for the law by persuading him that this time he lost for realz strikes me as demented.
Donald Trump won’t accept a 2020 presidential election loss, whether it’s by a large margin or a small one, for the same reason he never accepted his 2016 popular vote loss—he doesn’t like it, and so he won’t let it be true. He will convince a third of the country that it wasn’t true, because he doesn’t like it. Indeed, that Trump lost the popular vote in 2016 is, by means of his perfectly circular reasoning, the very reason he will not countenance the idea of Russian involvement in the theft of the 2016 election. It’s also the reason he created a fraudulent “voter fraud” commission. His psychological fragility on this matter has meant that he has done less than nothing to deter more meddling in the 2020 election. He wouldn’t even broach the topic with Russian President Vladimir Putin last week, because if you live in Donald Trump’s head, no election loss is legitimate. It’s funny to think that a “big” election loss would make the difference.
None of this is news to Nancy Pelosi, but unfortunately, putting one’s faith in the elections system makes even less sense today than it did in 2016. As Jamelle Bouie observes, we are now in the epicenter of an all-out vote suppression crisis that has become an all-out democracy crisis.
It’s easy to forget this, but it bears repeating: The reason former FBI Director James Comey didn’t take the Russian threat against the elections system seriously enough in 2016 is because he believed Hillary Clinton would win by large margins. The reason President Barack Obama and Attorney General Eric Holder and others who knew about the threats before we did failed to respond with utmost urgency and seriousness is because they too believed that Hillary Clinton would win. By large margins. Time and time again, people who had access to both information and power opted to take the less draconian path because they believed that there would still be a free and fair election and that Trump would not win it. We know how that turned out.
We make the same mistake of not acting on the ongoing threats to congressional oversight, to free and fair voting, and to foreign cyberattacks because an election might solve it at our peril. An election may well become the problem. Doing less than absolutely everything possible to reinstate the rule of law in America today in the hopes that there will be less election interference next time, or more benign election interference, or less purposive election interference, is insane.
This isn’t a joke. This is a full-fledged crisis of constitutional democracy and the checking function of Congress. It’s heartening to think that in a year and a half we can vote our way out of our predicament, but it’s a bit like suggesting that we have a good long national think about how things are currently going and tend to it all in 2020, when all the systems that were already broken in 2016 are more broken. If Democrats in the House seriously believe that the attorney general has covered up illegal activity and is refusing to accept congressional oversight, they should model seriousness. Which means that they should do something about it, beyond waiting for the problem to be voted away by large margins.
As Jennifer Rubin noted two weeks ago, Democrats have more than one possible response to Donald Trump’s illegal conduct at their disposal. There is no reason why they need to take any single one of them off the table, and there is certainly no reason why they should announce the plan to do so to the New York Times. Banking on an elections system that is being warped before our eyes is a recipe for disaster, and it’s a lesson that should have been learned by now.
The challenge Pelosi faces is the same challenge faced by Mueller, and by Eric Holder. Elections matter, and getting out the vote in 2020 matters. But the Rule of Law still matters, and we shouldn’t abandon it because this small problem of Donald Trump might go away in 2020. The fact is that this problem might not go away in 2020, though by then, the argument that obstruction itself is an impeachable offense will have been lost to us. That’s all the more reason to fight for the rule of law today, as if it were sliding away. Because it is sliding away. That isn’t something the country should wait to vote on. The country already knows it is true.
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