Once the Senate concludes its trial of President Donald Trump, it should go into recess. Until next January. The House, too. Lawmakers shouldn’t pass legislation, consider nominations or make any important decisions whatsoever: This is an election year, and the voters will soon weigh in on the direction of America. The nation’s business should await that judgment, lest members of Congress contradict it.
A ludicrous proposal? Indeed. But it’s in line with — and extrapolation of — a favorite argument against Trump’s conviction and removal from office. His Republican supporters say that lawmakers shouldn’t speak for voters on such a crucial issue. To preempt the verdict at the ballot box, they say, is to subvert the people’s will.
Nice try. Lawmakers are elected specifically to speak for voters on crucial issues. That’s the system. That’s their job. American government doesn’t operate by daily, hourly or issue-by-issue polls (at least not overtly). Congress doesn’t have exponentially more power one week after Election Day than it does one year later (though it may indeed have more political currency).
And lawmakers shouldn’t defer to their constituents at every turn. Those constituents expect them, over the course of their legislative terms, to use their judgment as better-informed proxies for the people they represent. So does the Constitution, which created America as a representative democracy, not a direct one. Our lawmakers are supposed to lead as well as follow, to be responsive to public sentiment but not mesmerized or paralyzed by it. That’s even truer when the stakes are huge than when they’re small.
Republicans have decided to sing a different tune. If it sounds familiar, that’s because they turned to the same music when Supreme Court Justice Antonin Scalia died, President Barack Obama nominated Merrick Garland to replace him and the Senate majority leader, Mitch McConnell, declared that a presidential election about eight months in the offing prevented the Senate from taking any action. It was a song not of principle but of political convenience. The same holds true now.
“Give the people back their power,” the House minority leader, Kevin McCarthy, implored a few months ago, arguing against impeachment itself. Referring to the president’s transgression and the November 2020 election, McConnell said, “The American people, if they think this is a very significant episode, can take it into account.” Sen. Lindsey Graham chimed in: “I really do believe that the best person — group of people — to pick a president are the voters, not a bunch of partisan politicians.” Pat Cipollone, one of the president’s lawyers, added: “No one ever thought that it would be a good idea for our country — for our children, for our grandchildren — to try to remove a president from a ballot, to deny the American people the right to vote.”
No one? Really? How about the framers of the Constitution, who established the impeachment process to do essentially that and declined to add any asterisks about the next election’s imminence? “If the framers thought impeachment in an election year was a bad idea, they could have set things up differently,” noted Jill Lepore, a Harvard history professor and the author of the 2018 book “These Truths: A History of the United States.”
“They could have instituted a mechanism for an interim election, for instance,” Lepore told me. “They did not. They could have said, ‘Except not in an election year.’ They did not. You want there to be no impeachments allowed in an election year, ever? You have to get a constitutional amendment ratified.” And that would never happen, because it would be license for a president to do anything he or she wanted, fearlessly, if it synced with the calendar just so.
The framers, in fact, wanted a government that wasn’t too sensitive to voters — that mediated voters’ whims and prejudices through representatives presumably taking a longer, cooler view. Senators’ six-year terms reflect that. As Alison LaCroix, a University of Chicago professor who teaches constitutional law and American history, told me, “The Senate is supposed to have a little more deliberative power and maybe be a little less beholden to the people.” When senators say they should kick an issue back to the people, they’re arguably violating the spirit of the chamber.
LaCroix made another excellent point: What’s happening to Trump isn’t muscling voters out of the process but, rather, taking into account what voters recently did. “You only get an impeachment vote when people have changed their minds,” she said, referring to their opinions about a sitting president. “The votes comes from the House, and we know, from things like the midterm elections, that some amount of people have changed their minds. Another party has gained control of the House. That has to be telling us something.”
Granted, that switch in the House majority wasn’t a referendum on Trump’s interactions with Ukraine, which were the grounds for his impeachment and hadn’t yet come to light. But they were absolutely a referendum, in part, on his behavior and character. Lawmakers who are now assessing and acting on the worst of that behavior and character are hardly turning a deaf ear to voters.
If Republican leaders were really so invested in a government that didn’t diverge from voters’ desires, more of them would be questioning the Electoral College. Because of it, the country has a president, Trump, who received about 3 million fewer votes than his opponent. Because of it, George W. Bush won the 2000 presidential election despite being the choice of fewer Americans than Al Gore. But both Trump and Bush are Republicans. So it’s fine if the system and voter sentiment aren’t perfectly aligned.
Similarly, Republicans — Democrats, too — are fond of tarring opponents by saying that they’re too beholden to polls. The implication is that elected officials should have the courage of their own convictions and not outsource their judgment to constituents. Saying that only voters should decide Trump’s fate is precisely such outsourcing. And Election Day is essentially the biggest poll of all.
There’s an additional, profoundly important wrinkle in the case of Trump’s impeachment and trial. They stem specifically from actions he took to corrupt the next presidential election by getting a foreign government to smear a potential rival. To give those actions a pass is to green-light more of the same or worse, meaning that voters’ verdict on Trump’s behavior might be fatally tainted: not a clean expression of popular will but a product of, well, cheating. The election can’t be the remedy when the election is what’s at issue.
But McCarthy, McConnell and other Republicans are determined to spare their party the humiliation of Trump’s removal and to protect themselves from his wrath (and his base’s fury) if he isn’t saved. So they reach for whatever arguments they can. Some are more plausible than others. The assertion that an election next November forbids honor this January is a joke, and the framers would have laughed at it.
Frank Bruni c.2020 New York Times News Service
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