Marcuss is a retired partner at the law firm Bryan Cave and on the steering committee of Lawyers Defending American Democracy.
Donald Trump tried to steal the election and prevent the peaceful transfer of power. And 43 Republican senators said that's OK when they voted to acquit him in the impeachment trial. It was time to "stop the steal," as the former president's allies so often shout. But it was the Senate that refused.
Trump's militias attacked the Capitol, tried to stop Congress from counting the electoral votes that confirmed his defeat, called for hanging the vice president and threatened to assassinate the speaker of the House. And 43 Republican senators said that's OK.
The melee created by Trump's militias led to the deaths of at least five people, including a Capitol Police officer, and more than 100 of his colleagues were injured. Now the Capitol is an armed camp, surrounded by barbed wire and thousands from the National Guard. And 43 Republican senators said that's OK.
Americans might be forgiven for thinking the impeachment process is what protects the country from leaders like Trump, bent on destroying American democracy and the rule of law. Saturday's acquittal vote has proved this view to be dangerously wrong.
The Constitution provides that a president who commits "high crimes and misdemeanors" may be removed and disqualified from holding elective office. A president who incites a mob to seek to prevent Congress from certifying the results of an election he lost has unquestionably committed a high crime and misdemeanor.
Senators take an oath to "do impartial justice" before sitting in an impeachment trial. It was clear from the outset, however, that most GOP senators decided to ignore evidence of Trump's guilt even before the trial began. It's fiction that there was ever a chance for a real trial and the impartial administration of justice.
The undisputed evidence presented to the Senate demonstrated beyond a doubt that Trump started his effort to invalidate the 2020 election long before the first votes were cast, spreading the fiction that the only way he could lose was if the vote was rigged. After he actually lost, he kept spreading the lie that he'd been denied a second term by election thieves. Sixty or so courts across the land, including the Supreme Court, roundly disagreed.
In rally after rally, Trump nonetheless encouraged followers to believe his lies and urged them to come to Washington on Jan 6. Trump promised the day would be "wild."
And then, just before the start of the Electoral College tabulation ceremony, Trump repeated his Big Lie once more. He told a raucous rally that Joe Biden's victory "could not stand" and that Vice President Mike Pence had a duty to overturn the election. The mob then marched on the Capitol, ransacked the building, hunted for Pence and Speaker Nancy Pelosi and stopped the certification process for several hours. Trump, meanwhile, remained ensconced in the White House, did nothing to protect the Capitol, declared that his vice president had failed in his duty and embraced the mob.
"We love you; you're very special," he said as their insurrection continued, urging them once it was over to "Remember this day forever."
None of this was disputed. Even GOP Senate Leader Mitch McConnell said afterward that Trump was responsible for what happened and intended by his actions "to torch our institutions on the way out."
Yet, minutes earlier, McConnell and 42 other Republicans effectively did no more than shrug and say, "So what?"
McConnell shamelessly cloaked his vote with a laughable argument, that a former president was not constitutionally subject to an impeachment trial. But it was McConnell himself who prevented the trial from starting while Trump was still in office.
Nothing explains the acquittal, and McConnell's cynical contortions, except a craven surrender to political self-interest. A violent threat to our country be damned, said those who found Trump guiltless; for them, impartial justice meant nothing more than indifference to justice.
Impeachment is intended to protect the country from presidents who threaten the country's most sacred institutions, including the peaceful transfer of power. The process is meaningful, however, only if senators obey their oath to do "impartial justice." The Senate minority leader, and the other 42 Republicans who voted "not guilty," refused to do so despite knowing the charges were true.
The impeachment process can never be stripped entirely of political considerations. A politician not affected by politics, after all, is a dead politician. Senators are not like jurors in a regular court. They are not disqualified from voting because they know a lot about the case before the trial begins, or even if they have opinions about the merits of the case before seeing the evidence.
Like most things in life, however, conflicting pressures and obligations have to be balanced. There is an obvious conflict between the duty of impartiality, on the one hand, and the impossibility of expunging acquired biases and insulating politicians from political realities, on the other. Reconciling the two is not easy. What is inexcusable, however, is not even to try.
Those who voted not guilty did not try. They entered the Senate chamber determined to acquit and refused to be deterred. Some even openly collaborated with Trump's lawyers as the trial proceeded.
Those 43 senators have impeached the impeachment process. They have stolen from the Constitution a bulwark against tyranny and impeached themselves in the process.
But the other seven Republicans, and the 50 Democrats, knew the difference between commitment and capitulation on Saturday. They acquitted themselves by discharging their duty to act on the difference. Voters should remember this day forever.
- Precedent? Nah, the Senate gets to reinvent its rules in every ... ›
- Georgia opens inquiry into Trump's infamous call - The Fulcrum ›
- The threat to democracy has only just begun - The Fulcrum ›
- Witnesses at Trump's trial would be good for the system - The Fulcrum ›
The president's pardon power is thought by many to be virtually unlimited. As he heads out the door, President Trump's pardoning of criminals who lack remorse and cronies who lack conscience challenges us to reexamine that belief.
The unadorned words of the Constitution seem to place no limits on the pardon power except in the case of impeachment. But skeptics may be forgiven for asking why the Constitution should permit pardons for murderers, thieves, tax-cheats, fraudsters and secret foreign agents — or those who have obstructed justice, lied to the FBI, abused immigrants, used campaign and corporate cash for improper purposes, disguised personal expenditures as charitable contributions and used prostitutes to entrap enemies.
Pardons like these undermine the entire criminal justice system. If you're a Trump crony or someone who obstructed justice to protect him, crimes are not really crimes. They are a sordid badge of honor.
There are two systems of justice in this country, one for the rich and well-connected and the other for everyone else. Trump's pardons create two more categories, one for those in the president's favor and another for those who are not. Criminals in the president's favor go free. The rest end up in jail. There is little wonder why cynicism runs rampant.
Cynicism will be one of the lasting legacies in Trump's parade of horrors. And it pervades much more than the administration of justice.
Consider: Use of the White House to enrich the president and his family, use of the Justice Department to protect the president personally and punish the president's enemies, interference with congressional oversight responsibilities by withholding information or prohibiting witnesses from testifying.
Consider also retaliation against whistleblowers, governing by executive order instead of congressional enactment, trashing international agreements, encouraging violence, failing to protect the public from a health crisis for fear of hurting the stock market — and, at the end, throwing the country into turmoil by falsely challenging the legitimacy of presidential elections.
We used to think it cannot happen here. Well, it has been happening here, and the country must do something about it. We cannot afford simply to hope that another Trump will not reappear in the Oval Office. Human nature has not changed. Greed, the seduction of power, and lack of moral principle lurk in the shadows, ready always to pounce. Future Trumps may be more skilled than the original in stealing democracy.
Tackling the unfettered exercise of the pardon power should be among the first orders of business in the new Biden administration. The Constitution must not be allowed to become a death warrant when politicians behave as if it contained no constraints.
The pardon power has been used by President Trump to create a class of citizens who are above the law. It has been bad enough when Trump issued a pardon after a conviction or guilty plea. It has been even worse when he has telegraphed in advance that pardons for future illegal behavior are likely. That is nothing more than a license to ignore the law. And when a president pardons those who commit crimes in service of his interests, he licenses his own wrongdoing as well.
Richard Nixon one haughtily proclaimed that "when the president does it, that means that it is not illegal." Trump once said that he could shoot someone on Fifth Avenue, and no one would stop him. A president who wields the pardon to shield his own criminality would be out-Nixoning Nixon.
The fact that the Constitution appears to place few restrictions on the exercise of the pardon power should not be an insuperable obstacle to reform. Many matters on which the Constitution is silent are dealt with through legislation to fill in gaps or reconcile conflicting provisions.
Among the many examples are constraints imposed by legislation on the use of firearms despite the absence of constraining words in the Second Amendment. Another is the permission enshrined in law to sue for libel or provide government support for religious-run schools despite the absence of constraining words in the First Amendment.
It is hard to imagine any good argument for permitting pardons as personal or political favors or to cover up a president's wrongdoing. It is equally hard to imagine a good argument against constraining the pardon power to cases of recognized injustice or situations of compelling mercy.
Some say that there are difficulties under the Constitution in trying to restrict the president's pardon power or defining when pardons are appropriate. Some also say there are difficulties in tackling other presidential abuses of power.
But difficult issues are difficult because of their importance. A hope that the depredations of the Trump administration will disappear when Trump is out of the Oval Office is naïve. Abuses of presidential power have been accumulating for decades. Reform of the pardon power is an essential starting point despite the challenges because the corrupt forgiveness of criminality is the rot that will eventually destroy the Constitution itself and render other reforms irrelevant.
In Shakespeare's "Merchant of Venice," Portia instructs that "the quality of mercy is not strained" and that mercy blesses the giver as well as the receiver. A corrupt pardon dressed in robes of phony mercy blesses neither. It diminishes both giver and receiver and threatens the rule of law that is the bedrock of American democracy.
- There's an urgent opening to really make America great again - The ... ›
- Democrats unveil plan to rein in the presidency once Trump's gone ›
- Trump's challenges to democracy will be a problem for Biden - The ... ›
- Trump is dissolving Congress in plain sight - The Fulcrum ›
- Tangible fixes abound for restoring the rule of law - The Fulcrum ›
McHugh retired in 2012 after 11 years as a justice of the Massachusetts Appeals Court. Marcuss is a retired partner at the law firm Bryan Cave and a former senior fellow at Harvard's Kennedy School. They are on the steering committee of Lawyers Defending American Democracy.
Mitch McConnell refuses to accept the verdict of the American people. The Senate majority leader is willing to indulge President Trump's attempt to destroy American democracy, by supporting his fight to stay in office despite his repudiation by nearly 78 million Americans and a margin of at least 5.3 million votes. Other Republicans give Trump and McConnell comfort by standing on the sidelines in silence.
This must end if American democracy is to survive. The norms of democratic behavior must be restored. The divisions that have poisoned this country must be bridged. This calls for enlightened behavior.
President-elect Joe Biden has started the healing process by assuring Americans that he will be the president of all the people once he takes office. His history of reaching across the aisle in search of compromise gives hope. He is in a better position than most to appeal to those who care for the future of the country, to persuade them of the importance of ensuring that the mechanisms of democratic government survive. If he is successful, we may see the beginning of the end of the nightmare to which we have been subjected by an incompetent and corrupt president.
It will be just a beginning, however, unless the abuses of power that have crept into our system of government are recognized and reversed.
One week before the election, a compendium of abuses of power and needed reforms was released by our organization. More than 2,000 attorneys — including former judges and prosecutors, law school deans and managing partners of large law firms — formed two years ago to enlist our colleagues in the legal community to speak out against the threats to our democracy and to demand that Trump and Congress honor the fundamental principles, norms and values of our democracy.
Among the reforms we proposed are:
- Compelling presidential compliance with congressional subpoenas and requests for government testimony.
- Punishing government officials who lie and deceive the American public.
- Prohibiting permanent "acting" government officials from exercising any power.
- Prohibiting the Justice Department from being the president's personal law firm
- Prohibiting use of the pardon power to protect presidential wrongdoing.
- Punishing civil servants who work on the president's political objectives.
- Outlawing nepotism, especially in the White House.
- Prohibiting use of the White House for self-enrichment.
- Requiring disclosure of the president's and vice president's business interests and tax returns.
- Prohibiting revenge against whistleblowers and others who tell the truth.
- Prohibiting voter suppression.
Many of these proposals will require legislation. For most of our history, legislation was not thought necessary. Most Americans understood implicitly that abuses of power would undermine the delicate checks and balances that make our Constitution work. The experience of the last four years has taught us otherwise.
Without legislation, the risk of repeated abuses is real. In an age increasingly vulnerable to autocracy and the preservation of power for its own sake, we cannot count on what was implicit in the past being what governs the future.
Legislation alone, however, is not enough. Compassion and empathy cannot be compelled. Respect for truth, diversity, political compromise, unbiased law enforcement and an independent judiciary comes from within. It requires a willingness to reach out to opponents in order to understand their concerns and grievances, and a desire to find common ground that satisfies competing interests. And it requires repudiation of the instinct for a "they did it, now it's our turn" approach to governance.
The winner-take-all approach to governance makes losers of us all.
Presidential elections are often bitter contests. Candidates frequently claim that an election is the most important in American history and that the future of our republic depends on the outcome. This time the future of the republic really is at stake.
Trump long ago refused to say he would leave office peacefully if the election went against him. He said that an election he did not win had to be fraudulent. He did what autocrats do: Participate in the election as a fig leaf and discredit it if they lose.
In Shakespeare's "Julius Caesar," Mark Antony observes: "The evil that men do lives after them; the good is oft interred with their bones." The evil the defeated president has done will persist long after he is gone — unless it is eradicated.
We have the means to do it. If we fail, the good that is in America is destined for interment with her bones.
- Street protests are not the best way to protect the election - The ... ›
- Total bipartisan rejection of Trump's idea the election be postponed ... ›
- How Trump is turning the presidency into a dictatorship - The Fulcrum ›
- McConnell finally accepts Biden's victory - The Fulcrum ›