Jurisprudence

This Is Not Representative Democracy

The American people overwhelmingly favor conviction, and there is no chance the Senate will convict.

The exterior of the U.S. Capitol at sunrise, reflected in a pool.
Sarah Silbiger/Getty Images

As the night before the second impeachment trial of Donald J. Trump falls, the mood is decidedly gloomy. While impeachment managers want to call witnesses and put on a proper trial, reports indicate that Chuck Schumer and Nancy Pelosi have ordered up a quick and dirty affair. This makes a certain amount of sense given that there are other urgent priorities at hand and any hope of picking off the 17 GOP votes needed to convict has fully withered and died. No matter what case Democrats present, Republicans are almost certainly going to stick together and protect the former president. The weeks between the House vote and the Senate trial have only worked to ensure that this comes true.

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So what exactly is the point of this impeachment effort? If there is no chance of garnering a conviction, why bother?

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In one sense, it’s long been clear that conviction isn’t the point when it comes to the now-multiple impeachments of Donald Trump. As the Democrats’ previous impeachment lawyer Daniel Goldman argued last week on Amicus, the purpose is to lay down a historical marker, to create a record and force a vote for purposes of posterity if nothing else. And as my colleague Lili Loofbourow wrote back during that first trial of Donald Trump, impeachment is a stain that spreads.

But beyond the political message that House impeachment managers and Senate Democrats will convey at trial—that Republicans have opted, once again, to be the party of Trump and violent incitement and that his efforts to overturn both the vote and the Constitution are just fine—there is another vitally important message that will be conveyed this week, no matter the outcome. That message is less a political signal about the difference between the two parties so much as it is a five-alarm warning about how representative democracy is working for Americans right now. Because in spite of the certainty with which I can predict that Trump won’t be convicted, recent polling shows that the majority of Americans want to see him convicted. ABC polling released on Sunday shows 56 percent of Americans saying that Trump should be convicted and barred from holding office again. Only 43 percent say he should not be. That means that most Americans watching any part of the impeachment trial could reasonably ask themselves why, um, yet again, 56 percent of the country is held hostage to a 43 percent minority. This is not representative democracy working well.

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But this isn’t just about minority rule. Because beyond possibly reconsidering the archaic constitutional strictures that require a two-thirds majority to convict the president, Americans might reasonably look at the disastrously malapportioned United States Senate and try to understand why this sober, deliberative body intentionally distorts the will of the people even as it purports to represent the will of the people. And that means those same people who might scratch their heads in an effort to understand how the Republican Party has morphed from the Party of Lincoln to the Party of Space Lasers could also reasonably wonder why it is that views that don’t command even a minority of the minority views of most Republicans seem to be privileged on the Senate floor over the rational conservative values they themselves espouse. They might, for instance, wonder why the GOP is condemning Liz Cheney while offering a standing ovation to Marjorie Taylor Greene. And they wouldn’t be totally insane if they then started to think about what minority-rule structures and incentive systems have brought them here.

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In short, in addition to using this impeachment trial to create a historical record of four years of GOP support for a president who tried to violently overturn an election, this impeachment can also stand as a record of how staggeringly broken electoral politics are when the preferences of the clear majority of Americans are being subordinated by the very systems of government itself. The GOP isn’t just committed to ignoring the insurrection at the Capitol this week. It’s also increasingly committed to ignoring the majority of Americans who found the insurrection abhorrent. This, then, is what minority rule looks like in political theater form: a Senate trial in which the clear will of the people can be sidelined because the clear will of the people does not determine who governs, or what those who govern must do.

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Yes, Democrats can use the week’s proceedings to explain what happened in the weeks leading up to Jan. 6, when the president sought to subvert the outcome of an election through lawless pressure on elected officials and then encouraged violent revolt when those efforts failed. But we all saw that with our own eyes. So perhaps they might also use this trial to show that in a hundred ways—none of them overtly lawless or self-evidently violent—government as currently constituted works to subvert representative democracy every single day. Those efforts go far beyond malapportionment in the Senate and gerrymandered districts. There are also the mounting efforts by Republican state officials to continue to suppress the vote. One recent analysis by the Brennan Center for Justice found three times as many pieces of state-level vote-suppressive legislation as there were only one year ago. Legislators in the Republican-controlled Georgia Senate are falling over themselves to strangle representative democracy, just as the impeachment trial opens. That isn’t a coincidence. And until and unless the scourge of unlimited dark money in politics is constrained, “democracy” will look more and more like these same Republican senators who don’t care about a lethal riot at the Capitol—even one that may have threatened their own lives and their colleagues’—because these senators are beholden not to their constituents, or even to their own self-interest, but to the secret donors who fund them.

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It is not helpful or useful for Democrats to approach this impeachment trial wrapped in Hamlet’s thick black cloak of gloom and destructive self-talk. Going on the record to vehemently oppose violent armed rebellion that led to five deaths and abject terror in the seat of government is hardly a whimsical principle upon which to stand firm. But the coming days should not just be a teachable moment about Republicans and their unwillingness to cut loose the twisted and violent conspiracy theories that were the heart of Trumpism. This trial should also remind everyone that democracy itself has been systematically warped in ways that shut out the voices of most reasonable Americans, and that these same forces are working to further suppress their reasonable voices in the years to come. The American people think Donald Trump should be held accountable for what he did, and Americans paying attention are also completely correct to assume that he will not be. That is an obvious problem that has become so obvious that we’ve nearly forgotten that there are things we can and should do about it.

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There is vitally important, demonstrably doable legislative work Democrats must prioritize in the coming weeks, in order to protect the franchise, to battle vote suppression, to curb gerrymandering, and to turn off the spigot for dark money in politics. But even as debate begins on those questions, we should look at the Senate trial as a natural experiment in government that has bent and twisted the instruments of democracy until it need not even bother to respond to voters, to existential violence, or to this small matter of irrefutable evidence they saw with their own eyes. Instead of fighting over whether the impeachment trial is somehow diminishing or distracting from the other important legislative work of repairing democracy, Democrats should be messaging that but for this broken democracy, we wouldn’t have arrived at a place in which an impeachment trial is not only required, but also very likely to end in a shocking and undemocratic acquittal. This is what minority rule looks like. But only if we continue to tolerate it.

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