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For Trump, no conviction — but a historic repudiation

 

Seven Republicans joined every Senate Democrat to convict Donald Trump at his second impeachment trial. That fell 10 votes short of the two-thirds required. But even if 57-43 was not be enough for a conviction, it was a strong bipartisan repudiation. 

After all, the main thrust of Trump’s defense was not to defend him on the facts, but to argue that a post-presidency conviction was unconstitutional. And while some Republican senators voted against removing him based on that argument, they did not object to the case on its merits.

Indeed, after the vote, Republican leader Mitch McConnell ripped into Trump in a Senate speech, even though he voted “not guilty” based on the constitutional question. He suggested strongly that Trump should be held responsible by the judicial system.

Where does this leave the former president and the Republicans? In a mess, at least for now. Put aside whether they support democracy or not. It’s pretty clear that Trump at this point divides Republican Party actors, even if he remains wildly popular among many Republican voters.

The shoddy defense that Trump mounted was a direct consequence of that split: Not a single high-profile Republican lawyer was willing to join the defense team, which on Saturday was down to a single personal-injury lawyer delivering campaign-type screeds that may well have cost Trump two or three Republican votes.

That’s remarkable. Even Richard Nixon, when he was probably down to one dozen or two dozen Republican defenders in the House and Senate combined, was able to retain competent counsel right up to his resignation and the end of his presidency.

Yet plenty of Republican Party officials and activists, and people within the Republican-aligned media, still strongly support Trump, making it difficult for most Republican politicians to fully walk away from him.

Will the failure to convict give future presidents license to do something as disgraceful as what Trump did? On the one hand, as we’ve seen over the last two years, the Constitution has set an extremely high bar for impeachment and conviction, one that requires an exceptional combination of presidential wrongdoing, partisan context and much more to overcome. Removal isn’t quite a dead letter, but it’s close.

On the other hand? Trump was unusual in that he often ignored the normal incentives presidents are faced with. As a consequence, he was an unusually unpopular president, lost reelection, and was easily rolled by Congress, the executive branch and even his own White House staff. It’s relatively unlikely that most future presidents would be eager to go through an impeachment, lose votes from their own party in both the House and the Senate, and also be blasted by some of those who voted to acquit, even if they were able to escape being booted from office.

One thing that Trump made clear was that nothing in the constitutional system makes presidents respect the U.S. political system and respond to that system’s incentives. The consequences for not doing so, while significant — again, Trump lost! — are not definitive enough to force action.

The task for reformers is to find new ways to strengthen the alignment between presidential misdeeds and their consequences. As for the rest of us, we can only hope that the political parties do a better job of weeding out the candidates who might perversely consider the humiliation dealt to Donald Trump during his presidency to be a badge of honor.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy.

 

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