Democrats shouldn’t punt on impeachment

Don’t Lock Trump Up, Just Because Mueller Said You Can

For the sake of democracy, Democrats shouldn’t punt on impeachment by threatening to prosecute the president in 2021.

By BRUCE LEDEWITZ

“Could you charge the president with a crime after he left office?” Republican Rep. Ken Buck asked former special counsel Robert Mueller on Wednesday morning. “Yes,” Mueller responded. It was an important moment, and the soundbite is already making the rounds on social media.

But the more important question is: Should you charge the president with a crime after he’s left office?

Democrats will likely seize on Mueller’s response to Buck—as well as his affirmative response shortly after to Democratic Rep. Ted Lieu’s similar question—to more aggressively campaign on taking back the White House in 2021, now not only to regain control of the executive branch but to finally have the opportunity to put a seemingly criminal Donald Trump behind bars. Doing so might seem both cathartic and justifiable. But it sure wouldn’t be good for our political system.

Thanks to the research by Harvard political scientists Steven Levitsky and Daniel Ziblatt in their book, How Democracies Die, we now have a pretty good understanding of the process that sometimes ends in canceled elections and violence. Democracies die when the informal norms that govern peaceful, political competition for power are violated, so that politics gradually becomes a form of warfare.

Levitsky and Ziblatt detail how the Republican Party’s repeated violations of norms have led to Democratic Party reprisals, in a frightening downward spiral. Their message is that not only can it happen here, the way things are going, it appears increasingly likely. Unfortunately, in such a deteriorating cycle, each side feels justified in taking the latest step by the prior bad conduct of the other side. It is difficult, politically, for one side to hold back for the sake of democracy.

There’s no doubt that Trump has taken the United States 10 steps closer to the edge of the cliff when it comes to eroding the norms of our democracy. But there is one crucial step he didn’t take. He didn’t pursue prosecution of Hillary Clinton, much less “lock her up,” as he had campaigned on doing in 2016.

In functioning democracies, winners of elections do not initiate prosecutions of their political opponents. This norm is uniquely suited to protect peaceful political competition because defeated political leaders are able to accept losing elections without worrying about their personal safety and their supporters can, while still opposing the politics and policy of their elected leader, at least accept that the office will be held legitimately. The surest way to end democracy is to begin jailing the losers.

Trump plainly flirted with violating this norm, and in so doing, pushed us ever closer to the edge. During the 2016 campaign, Trump baited his followers into chants of “lock her up” over a variety of allegations, from the handling of classified emails to the conduct of the Clinton Foundation during her time in office. There is even evidence he contemplated it while in office. Fortunately, despite the obvious support that a criminal investigation of Clinton would have had among Trump’s base, in the end he initiated no such investigation.

Ironically, this norm now stands in peril not from Republicans, but from Democrats. POLITICO reported last month that Nancy Pelosi has raised the prospect of Trump being prosecuted after a hypothetical 2020 defeat.And Democratic presidential candidates Sen. Kamala Harris and Mayor Pete Buttigieg have already given support to the idea, to the chagrin of law enforcement veterans.

We can’t assume that any Democratic-launched criminal investigation of Trump should he lose in 2020 would create a new norm in which criminal investigations of losing presidential candidates are routinely launched, but we can’t ensure that it won’t. Followers of candidates campaigning on the chance to prosecute their opponent can easily be convinced that rule by the other side is illegitimate. All it would take to put the final nail in our democracy’s coffin is for one side to appeal to the military to decide.

This might seem like a brash assessment of our situation today, but Democrats casually invoking threats of criminal investigation simply do not understand these stakes. Saving our democracy is a lot more important than imposing punishment on President Trump for potentially hindering the Russia investigation.

This is not to say that presidents, or presidential nominees, are above the law. A president abstaining from launching a federal prosecution of their defeated opponent would do nothing to prevent state authorities from pursuing their own cases. In fact, there are already several ongoing state investigations into Trump and his associates, and neither Trump nor a sympathetic successor could pardon him should he be convicted by a state court.

Moreover, the Constitution specifically calls for the impeachment process to be engaged when a sitting president is suspected of having committed crimes. Congress, not the Justice Department, is given the authority to adjudicate the allegations. Should Democrats choose not to pursue that path in favor of a future federal prosecution when they hold power, it would be hard to defend such a blatantly political decision as serving justice. Democrats in Congress today, despite their concerns over the Republican-controlled Senate, can’t punt the question of whether to impeach and then satiate their guilt later by prosecuting Trump when he’s out of office.

If voters decide to elect the challenger of a president because of the alleged crimes floating above the president’s head, the outgoing president and his party will have paid a political price. Some amount of possible crimes may go unpunished without further prosecution, but this is the small cost of keeping our democracy going. Criminal allegations against a political opponent, even if they are credible, should not be used as a cudgel in an election so that voters are effectively made to be a grand jury deciding whether or not prosecution will be pursued.

At this point, the political realities of a crowded Democratic field make it unlikely that any of the 25 candidates will come out strongly against prosecuting Trump should he or she defeat him in 2020. Each campaign desires to stand out from the pack with their anti-Trump bonafides. But when the field narrows and all the candidates stand on one debate stage, they should come together to make a pledge that they will leave the potential prosecution of Trump to state authorities. Not only would it be good for our democracy, but it would allow the candidates to focus on the issues during the primary, and should one of them win the general election, their administration could put Trump behind them and focus on policymaking rather than what would be a sideshow of epic proportions.