Throughout the Trump presidency, I’ve been struck by the extent that his defenders relied on a single word: “precedent.” Rather than engage with his conduct, they shrink back from the alleged negative implications of holding him accountable. At every stage in the various investigations (and both impeachments), we’ve been treated to a parade of arguments that go something like this:
Before the Mueller investigation: “Do we really want to set a precedent of using the FBI to investigate a presidential campaign?”
During the Michael Cohen prosecution: “Doesn’t raiding a president’s lawyer’s office set a dangerous precedent?”
During the Mueller investigation: “Are we really going to set the precedent that the president can obstruct justice by using his constitutional authority to fire his own appointees?”
During the first impeachment: “Are you sure you want to impeach a president for his foreign policy decisions?”
During the second impeachment: “Do we want to start convicting former officials? Won’t that set a precedent we’ll regret?”
In fact, the precedent argument has been unleashed on behalf of far lesser lights. After House Republicans declined to strip Marjorie Taylor Greene of her committee assignments, they shamed Democrats for failing to follow the precedent of allowing each conference to police its own members.
But here’s the reality at the heart of all arguments about precedent—precedents are set (or maintained) either way. To illustrate, let’s walk back through the history above, with the lens reversed.
Before the Mueller investigation, Trump’s defenders were suggesting that we should set the precedent of not investigating campaigns when there is evidence that campaigns were reaching out to a hostile foreign power for assistance in winning an American election.
During the Michael Cohen investigation, Trump’s defenders were hoping to establish that the president’s lawyers should enjoy special immunity from lawful searches even in the presence of substantial evidence of criminal misconduct.
During the Mueller investigation, the GOP hoped to establish a precedent that firing an FBI director or a special counsel or ordering the cessation of an investigation even for corrupt motives could not form the foundation of an obstruction of justice impeachment count.
During the first impeachment, the GOP established the precedent that demanding a foreign ally to investigate a conspiracy theory and a domestic political opponent as a condition for receiving vital military aid does not constitute grounds for removal from office.
And now, during the second impeachment, a majority of the Senate GOP has voted twice that it’s unconstitutional to try a former president for acts of grotesque misconduct committed while in office.
If you line one set of precedents up against the other, which ones reflect the operation of the rule of law and political accountability in a healthy constitutional republic? Which ones establish a culture of impunity that would shock the conscience of many of America’s Founding Fathers?
As I typed this newsletter, the Senate voted 56-44 to proceed to the merits of the impeachment case against Donald Trump. Six Republicans—Senators Bill Cassidy, Mitt Romney, Ben Sasse, Susan Collins, Lisa Murkowski, and Patrick Toomey—voted with all 50 Senate Democrats. Those 56 senators set a precedent, a positive precedent, that former presidents can’t escape trial for alleged abuses of power while in office.
Now, there are new precedents to be set. And the most important precedent is now absolutely clear: The Senate must lay down a marker that no president can get away with a campaign of lies, pressure, and public incitement designed explicitly to reverse the results of a lawful election and block the peaceful transfer of power. All the arguments about precedent pale in comparison to this one. If sufficient members of the GOP vote to acquit (and they likely will), the precedent they will establish is that there is virtually no bottom to presidential behavior that the modern partisan can’t excuse, rationalize, or defend.
Even worse, that same GOP Senate majority is likely to set a precedent that threats work. In his impeachment argument today, David Schoen, one of Trump’s lawyers, argued that “This trial will tear this country apart, perhaps like we’ve only seen once before in our history.”
The reference to the Civil War was clear.
Compounding the disaster, the GOP Senate majority will almost certainly set a precedent that sophistry succeeds. The president’s legal team is mounting a legal defense centered around the First Amendment—arguing that the president’s words to the mob on January 6 did not meet the legal definition of incitement and that he should thus be constitutionally immune from impeachment and conviction.
This is specious. Applying the First Amendment to protect a president from the constitutionally defined political remedies for abuses of power would do grave damage to the structure of checks and balances. It would defy the intent of the Founders.
For example, few presidential powers are more absolute than the president’s defined, enumerated pardon power. Yet in early American debates about the extent of the pardon power, James Madison argued that the remedy for the abuse of the pardon power was—you guessed it—impeachment.
In other words, if the president can be tossed from office for exercising powers expressly guaranteed to him by the Constitution, he can be barred for office for engaging even in protected speech that brings dire harm to the republic.
Moreover, the article of impeachment against Trump rests on more than his speech on January 6, encompassing his “prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.” He’s been impeached for his speech and his conduct.
Indeed, as I explained at length, Trump’s January 2, 2021 phone call with Georgia Secretary of State Brad Raffensperger may well have violated both federal and state election laws. In fact, as Reuters reported, “Georgia’s Secretary of State’s office opened a probe on Monday into former U.S. President Donald Trump’s efforts to overturn the state’s 2020 election results, a step that could lead to a criminal investigation by state and local authorities.”
When the Senate renders its verdict on Donald Trump’s second impeachment trial, it will set a precedent. For the sake of the republic, I hope it sets a precedent that presidents cannot launch mendacious campaigns to overturn lawful elections. I hope it sets a precedent that efforts to halt the peaceful transition of power are met with extreme sanction. And I hope it sets the precedent that threats of civil war only steel the resolve of patriotic senators to hold a demagogue accountable for the consequences of his recklessness and malice.
One more thing …
The Democrats began their case by playing a video that tied together the events of January 6, from the president’s speech to the evacuation of Congress and the storming of the Capitol. It’s powerful. It’s horrifying. It contains footage I’d never seen before. I’d urge you to watch the whole thing and then ask yourself what kinds of precedents these facts demand: