We’re probably going to have to have this conversation about impeachment. Nobody really wants to—okay, that’s not true, there are plenty of people who want to. But nobody should want to, because starting an impeachment is like opening a Pandora’s Box. The near-term effects are unpredictable and the long-term effects can only be bad, for everyone.
Even so, there’s a 3-in-4 chance that Democrats will control the House in a few months. The current president almost certainly committed a felony a few weeks ahead of the 2016 election. That felony was intended to influence the election. And in any case, impeachment is as impeachment does: As Andy McCarthy has argued at length, impeachment is a political, not a legal, process. There are no standards for it. To borrow an old legal koan, the House could impeach a ham sandwich.
In due course, we’ll get to hash out all of the good arguments both for and against impeachment. (If you don’t impeach a president who committed a felony in pursuit of the presidency, what would you impeach him for? But why would you pass articles of impeachment, further poisoning our political culture, when the president has no chance of being convicted in the Senate?)
But let’s dispense with two of the bad arguments right off the bat.
The first is that the payoffs of Stormy Daniels and Karen McDougal couldn’t have changed the outcome of the election.
Let’s walk through this scenario. On Aug. 5, 2016, Karen McDougal signed away her rights to discuss her affair with Trump to David Pecker’s American Media for $150,000. That was 95 days before the election. Trump’s Access Hollywood tape broke on Oct. 7, 2016, 31 days before the presidential election. Within days of the Access Hollywood tape breaking, Cohen agreed to pay Daniels $130,000. For years, Trump had bragged about his numerous infidelities, so it’s not like he had some Puritan objection to the public knowing about his affairs. There is no reasonable explanation for him to have made arrangements to cover up affairs that took place in 2006 just weeks before the election except as an attempt to influence it.
So that’s the intent half of the equation. The other half is the question of whether or not these revelations could have possibly made a difference in the outcome.
Trump’s margin of victory in Pennsylvania was 44,292 votes. In Wisconsin, his margin was 22,748 votes. In Michigan it was 10,704 votes. That’s a total of margin of victory of 77,744 votes. The total number of voters in 2016 was 128,838,342, meaning that if 0.03 percent of voters had changed their mind, the result would have been different. What sort of factors can move 0.03 percent of the electorate on any given day? Literally anything. The weather, the traffic on the way to work, what they had for breakfast. As Ian Malcolm would put it, when you’re talking about 0.03 percent of the vote, then a butterfly could flap its wings in Peking and in America you get President Hillary.
Could the revelations that Trump had been banging it out with a porn star and a playmate as his wife was recovering from childbirth have changed the outcome of the election? Absolutely.
Think of it this way: Karl Rove has always maintained that his data suggested that the revelation of a 24-year-old DUI cost George W. Bush 5 million votes in 2000, which would have been 5 percent of the electorate. Anyone who says that the Daniels-McDougal stories couldn’t have cost Trump the White House is either unserious, or trying to sell you something.
And you could say the same for the other bad argument: that impeachment would be an attempt to “nullify” the outcome of Trump’s election. This is objectively false. “Nullifying” the election would mean either re-running the vote or installing Hillary Clinton as president. A successful impeachment would conclude with Mike Pence being sworn in as president. There is no way to view this outcome as “nullification” of any sort.
What’s more, if you take the view that impeachment is unjust because it is a form of electoral nullification, then you have to be against impeachment qua impeachment, in all circumstances. You have to believe that the Framers of the Constitution erred by including it as a potential remedy. And what’s more, you have to take an activist, rather than originalist, view of con law by believing that rather than amend the Constitution, the proper course of action is for lawmakers to refuse to use a tool which the Constitution expressly provides them.
There’s an easy way to tell whether people who cry about “nullifying an election” are arguing in good faith: Just see if they were crusading against Bill Clinton’s impeachment.
As I said, there will be plenty of good arguments both for and against Trump’s impeachment. But you can automatically dismiss anyone who says that “Trump’s felonies didn’t alter the outcome” or that “you can’t nullfiy the election” as either a fool or a hack.
