Jurisprudence

Trump Is Not Shamed

As the Senate hears his case, Trump is recommitting some of the same offenses that got him impeached in the first place.

Donald Trump walks across the South Lawn of the White House at night with his right fist in the air.
President Donald Trump walks across the South Lawn of the White House after returning from Davos, Switzerland.
Saul Loeb/Getty Images

One of the reasons House Democrats ultimately impeached Donald Trump is that they recognized that if they didn’t try to stop him from doing crimes, he would be emboldened do more of them. Or to put it another way, if the Congress makes an institutional decision to cede all of its oversight power back to the Executive Branch, the president will come to believe, quite correctly, that he is in fact above the law. Recall that the “perfect” phone call asking the president of Ukraine to announce that he would investigate corruption around Burisma took place the day after Robert Mueller let Trump off the hook in House testimony about Russian election interference. So, after weeks (and months and years) of trying to avoid impeachment entirely, House Democrats realized they had almost no other choice but to go ahead, even though the chance of Trump being removed from office was still essentially zero. Impeachment, put plainly, was undertaken not just to punish past misconduct, but to attempt to deter more of it.

Now, we find ourselves in the middle of an impeachment trial whose outcome is essentially pre-ordained. And as Republicans in the Senate are rewarding Trump for his blanket obstruction of Congress, the president has been chortling in Davos that he is obstructing Congress. In other words, Senate Republicans’ refusal to exercise their oversight muscles means that those muscles are atrophying before our very eyes, and this administration continues to flout the law in real time as a result. Senators who mistakenly think this is all about this president’s single call to Ukraine fail to comprehend that it’s about all kinds of lawlessness on the part of all of his enablers and appointees that they are also choosing to let slide. That lawlessness isn’t a static thing; it begets more and more of the same.

Under cover of the fog of impeachment, in large ways and small, other lawbreaking, other refusals of oversight, and other overt criming keeps on happening. What other bad acts has this president and members of this administration undertaken this month alone? Well, on Tuesday, the Commerce Department announced that it would refuse to obey a congressional demand for the release of a 2018 investigation into national security risks around imports of autos and auto parts, citing a presidential claim that it would “interfere with the president’s ability to protect confidential executive branch communications and could interfere with ongoing negotiations.” (Republican Sen. Pat Toomey “blasted the decision.”) Just last week, without any explanation, the Trump administration abruptly canceled four classified briefings related to the Iran crisis, and Secretary of State Mike Pompeo refused a House request that he speak at a public hearing on the assassination of Iranian Maj. Gen. Qassem Soleimani. This, after there remain profound questions about whether the killing of Soleimani without congressional approval was itself unlawful. Earlier this month, Steve Mnuchin, Trump’s treasury secretary, tried to block disclosure of how much taxpayer money has been spent on Secret Service protection for presidential travel for Trump and his adult children until after the 2020 election. Last week, the FBI failed to comply with U.S. District Judge Reggie Walton’s order to turn over, by Jan. 17, summaries from interviews with Jared Kushner in Robert Mueller’s investigation to CNN and BuzzFeed. The FBI missed the deadline, then claimed this week that a member of the intelligence community “needs to ensure the material has been properly redacted.” It’s not clear when the summaries will be turned over.

Also this week, U.S. Customs and Border Protection deported an Iranian student on a valid visa who was returning to Boston for school. Despite the fact that a federal judge had issued an emergency stay ruling his removal be stayed for two days pending a hearing in his case, CBP ignored this order and sent him home Monday night. Politico is reporting that a CBP officer is now alleging that their staff in the Seattle field office was told to target Iranian-born travelers for such questioning as of early January. On Thursday, a panel of the Seventh Circuit Court of Appeals excoriated the Board of Immigration of Appeals for overt defiance of an earlier court order, reminding the BIA that “The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter.” It perhaps bears mention that William Barr and Pat Cipollone—both of whom have participated in the acts at issue in the impeachment—are involved in defending Trump’s conduct in these proceedings. Also this week, D.C.’s Attorney General Karl Racine charged the Trump inaugural committee and the Trump Organization with using $1 million of charitable funds to enrich the Trump family during the inauguration. If you’re interested in more, CREW has more and more. This list isn’t by any means comprehensive, by the way. It’s more a tasting menu. None of this is normal, none of it OK, all of it is sliding by, as oversight moves away from government to journalists and private watchdogs, and as defiance of the law becomes the new normal.

It’s easy to look at all of this and insist that it’s all just Trumpian business as usual. That’s the same impulse that suggests that this impeachment effort is just an effort aimed at removing a despised president who has done nothing wrong. But to do each of these things requires defining unlawfulness down and also defining oversight down. The president’s defense team, in asserting the broadest possible claims that nothing the president does is illegal or impeachable, and also that Congress has no role in checking him, are actively fostering congressional obsolescence. Senators who agree to this as they play with fidget spinners and launch podcasts are greenlighting more law breaking as they limit their own ability to check it.

Maybe it doesn’t matter. Maybe this “trial” that allows for no witnesses, no evidence, hollow oaths, and fewer and fewer vertical jurors, is a perfect construct by which to end the illusion that there is such thing as unlawful conduct and also that there is such thing as oversight. And maybe the voters agree. This latest report from the Pew Research Center found that 63 percent of Americans believe Donald Trump either has definitely or probably done illegal things, while 70 percent believe Trump has definitely or probably done unethical things. A majority of the 32 percent of Republicans who say Trump has likely done illegal things either during the campaign or while in office also say he should remain in office. (59 percent of those Republicans say he should stay in office, while 38 percent say he should be removed.) That means there’s a not-small swath of Republicans who seem to agree that illegal or unethical conduct is OK for a president. Which, conveniently, is Trump’s argument too.

Nobody should be fooled into believing that Trump himself would be deterred from lawless or improper actions just because he’s in the midst of a Senate impeachment trial. Indeed, as Stephen Collinson has pointed out, given that Trump has never once moderated his conduct in the face of being caught out, we might also recognize that even impeachment won’t stop him and in fact, the possibility of acquittal in the Senate may actually embolden him. “It’s unthinkable that Trump will emerge from his impeachment drama chastened,” Collinson wrote. “He is instead likely to perceive validation for his conduct, and may consider, since he is branded with a historic badge of honor, that he has not got much more to lose and could shed even more restraints.”

The purpose of this trial wasn’t really to change Trump’s behavior; everyone knows that’s not possible. Perhaps it was always at most an attempt to jealously guard congressional prerogatives to define and monitor what the outer boundaries of presidential misbehavior might be. In which case those boundaries are vanished. In giving up on those prerogatives, Senate Republicans are inviting more defiance of any oversight, more blanket claims of immunity, and an ever-expanding class of actions that if taken by the president, cannot be illegal. That’s not something that will happen next month or next year. It’s happening as the impeachment itself unfolds.