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Pelosi too boldly declares that Trump is the democratically elected President. (Photo: Charlie Neibergall / AP)

Pelosi too boldly declares that Trump is the democratically elected President. (Photo: Charlie Neibergall / AP)

Trump, Impeachment, and the Question of Democratic Legitimacy

To allow Trump to continue to act as if he has legitimacy is simply to continue to legitimatize him and his party

Jeffrey C. Isaac

It would seem that Donald Trump and Nancy Pelosi agree on one really important thing: Donald Trump is the legitimate President of the United States.

Trump declares boldly and angrily that he is President because he won the election; that as President he is entitled to disparage long-standing governmental norms, break the law, declare national emergencies on a whim, assault the civil rights and liberties of immigrants, minorities, and women, and treat his critics, in the press and in the political opposition, as “enemies of the people.”

And on this basis, he declares that supporters of oversight of his administration are “traitors” who are engaged in an attempted “coup”; and that calls for impeachment represent an assault on democracy and on the “will of the people.”

Trump won. And so he is obviously “what the people want.”

Pelosi too boldly declares that Trump is the democratically elected President; that while this does not entitle him to unlimited power, it does legitimatize his occupation of the office and the exercise of its proper powers; that the duty of democratically elected members of Congress is to work with him whenever possible (“infrastructure”), and to limit him when necessary through the normal “checks and balances”; and that calls for impeachment represent impetuous, impassioned, and partisan efforts to challenge presidential authority via extraordinary and thus controversial and dangerous means.

Trump has said essentially this to Democrats and to all others not abased before him: “I won and you didn’t, I’m the President and you are not, I will do what I want, if you don’t like it you can go fuck yourselves, I dare you to impeach me, and whether or not you do, I will do what I did last time, and lie, cheat, and whip up my angry base against you, and I will win again. Fuck you.”

And the House Democratic so-called “leadership” ruled by Pelosi has said essentially this in response: “You are the President and we are not, and we are determined to exercise our powers properly, but we also recognize yours, and we agree that you won and it would be wrong to interfere with the results of that election, and we agree that it would be dangerous and wrong to impeach you, and we know that if we try to impeach you, you will use this to defeat us again, and so we will calm down, and practice business as usual, and campaign on ‘real issues’ like the economy, and not say too much about you, and do our jobs like good legislators, and then allow the people to decide who shall govern them in the 2020 election.”

Though from slightly different vantage points, both “Donald” and “Nancy” would seem to agree:

Impeachment would be an affront to democracy.

There are many problems with this “logic.” Two loom largest.

It has become increasingly clear that Trump colluded with a foreign power to win his election; that once in office he has exercised his power in arbitrary, cruel, unconstitutional and thus very harmful and dangerous ways.

The first is that the more we learn, the more it becomes ever clearer that Trump did not win the 2016 election fairly. He lost the popular vote dramatically, and won the Electoral College on the basis of incredibly narrow victories in three states, with the deliberate assistance of Russian agents with whom his campaign met, tacitly agreed to share, and thus colluded.

This is a real problem for Trump — and for us! — and is surely the most important reason why he can’t just admit there was Russian interference, denounce it, and move on, as some well-meaning centrists would like: because he knows he did not win fairly — Trump has never won anything fairly, he is a notorious liar and cheater in all things! — and he knows that if he owns up to this, he would have to reckon publicly with the fact that his presidency lacks the legitimacy normally accorded to elected presidents and he does really not deserve to be in the White House, and there is something really wrong with him being there.

From the start there has been a dark cloud of suspicion cast on Trump’s very dark presidency. Many of us have known this, and even said this, for two years now. At the same time, not being insurrectionists, we have decided, for a variety of good reasons, to act as ifTrump was the legitimate president, in at least this sense: we have accepted the very flawed process by which he has claimed his office, and have opposed him through the appropriate means made available by constitutional democracy: public criticism, dissent, protest, civil disobedience, and legitimate opposition through courts, legislatures, and elections. In the lexicon of legal theory, whatever our doubts about the “de jure” legitimacy of Trump’s presidency, we have accorded it “de facto” legitimacy, even as we have challenged so many of his actions.

The problem for us is that as we have done this, the cloud over this president has further darkened, as it has become increasingly clear that Trump colluded with a foreign power to win his election; that once in office he has exercised his power in arbitrary, cruel, unconstitutional and thus very harmful and dangerous ways; and that as questions have been raised about what he did to win power and what he does with this power, he has made things worse and worse, consistently obstructing justice in ways large and small. To put this bluntly, Trump in office has proven himself to be both an “aspirational fascist” (William Connolly) and an actual authoritarian, even if his efforts thus far have not fully succeeded.

Centuries ago what we call “the American republic” was founded through a revolution against illegitimate power. That revolution was publicly justified by a “Declaration” that contained these often-quoted words (taken almost verbatim from John Locke):

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

One problem with treating Trump’s Presidency as “legitimate” is that as the weeks, months, and years have passed it has become ever clearer that his administration has been one very long “train of abuses and usurpations.”

The Mueller Report, important as it is, is only one, albeit important, indication of this. There are many strong sources of evidence to support the almost self-evident claim that has Trump routinely denigrated, disrupted, eroded, and weakened constitutional democracy, and through the exercise of his power has rendered vulnerable the rights and freedoms that are essential to democracy.

It is very clear that Trump will do anything to stay in power, which means to fight all efforts at Congressional oversight, and to use such a fight to win another term, and then only God knows what.

But there is a second and even more serious problem with our acting as if Trump’s Presidency is legitimate: that it is very clear that Trump will do anything to stay in power, which means to fight all efforts at Congressional oversight, and to use such a fight to win another term, and then only God knows what.

This is not merely, if importantly, a question about how to deal with past abuses.

It is a question about how to deal with current and future abuses that extend past abuses, and enact an impunity that is grounded in a simple if disturbing fact: Trump continues to get away with many of the terrible things he does, and he clearly intends to keep doing these things.

Since the end of the Mueller investigation Trump, with the eager assistance of Attorney General William Barr, has not simply sought to challenge and misrepresent the Mueller Report. More ominously, he has seized the offensive, escalating his already permanent campaign against his political opponents into an all-out rhetorical and logistical war.

On the surface this involves lies, defamation, threats, public incitement against “enemies,” and a refusal of all legally-prescribed forms of Congressional or judicial oversight.

But at a deeper level it involves a very active and aggressive effort to claim the democratic high ground and cast his critics as opponents not simply of him or his administration but of “the American people” whose “will,” supposedly expressed in 2016, is now being subverted by nefarious liberals, socialists, “deep state” agents, Mexican-lovers, Jihadists, and other assorted “enemies.”

Just a few days ago Barr further escalated this attack in a long interview with CBS News. Much of that interview involved criticism of Mueller and justification of Barr’s disturbing ways of handling the Mueller Report. But some of it centered on Barr’s new investigation of the Mueller investigation itself.

Following Trump’s dictatorial playbook, Barr implied that “law enforcement and intelligence” agents had “intruded” into politics, displaying a “Praetorian Guard mentality where government officials get very arrogant, they identify the national interest with their own political preferences and they feel that anyone who has a different opinion, you know, is somehow an enemy of the state . . .That can easily translate into essentially supervening the will of the majority and getting your own way as a government official.” And he concluded by reiterating the danger this poses not to Trump but to democracy:

I think it’s important that we not, in this period of intense partisan feeling, destroy our institutions. I think one of the ironies today is that people are saying that it’s President Trump that’s shredding our institutions. I really see no evidence of that, it is hard, and I really haven’t seen bill of particulars as to how that’s being done. From my perspective the idea of resisting a democratically elected president and basically throwing everything at him and you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring.

And so Barr, following his Leader, declares that court-sanctioned counterintelligence inquiries that were kept secret (in contrast to very public handling of the Clinton e-mail “scandal”) during an election campaign represented “activities against a political campaign,” and that Constitutionally prescribed oversight by Congress and his very own Justice Department after the election represented a “supervening the will of the majority” and “resisting a democratically elected president.”

These are lies. Trump never won a majority of votes. Trump colluded and he has obstructed. Trump routinely shits on constitutional democracy. And this Attorney General, like a totalitarian propagandist, describes those who criticize Trump as the enemies of democracy!

For Democrats to support impeachment is for them to demonstrate publicly that they take the Constitution seriously, take their jobs seriously, and deserve to be taken seriously by American voters.

In the face of this deliberate and cynical public relations campaign, for House Democrats to patiently litigate subpoenas, and conduct a dizzying array of normal committee hearings, and proceed as if this is anything other than extraordinary and extraordinarily dangerous, is to declare defeat.

Trump says: “The people are against impeachment.”

And Pelosi echoes him: “The people are against impeachment.”

Pelosi says “we must do our legislative business, avoid being ‘distracted’ by impeachment talk, contest Trump through the elections, and run normal campaigns on specific policy issues.”

And Trump says: “it should all be about elections, and I won the last election fair and square, and you Democrats have traitorously opposed me with the help of Mueller and his team of Democratic Trump-haters, and after all of these attempts to take me down, I will take you down, and whether or not you impeach me, I will run against your effort to take me down, and I will win again, rule of law be damned.”

After almost two years of waiting for the Mueller Report, Democrats cannot afford to put aside the clear evidence in that report that Trump’s Presidency lacks legitimacy, that it was obtained by illegitimate means, and it has been maintained by illegitimate means, and it has been used to violate the Presidential oath of office and to endanger constitutional democracy.

These things are true, we have long known them to be true, and the Mueller Report simply lays out a compelling, legalistic outline of some of the important evidence.

To refuse to challenge Trump’s legitimacy is to cede him a legitimacy he does not deserve, and to allow him to continue to use that claim as a battering ram against Democrats and against democracy.

Impeachment is the only constitutionally prescribed way to focus attention on this fundamental illegitimacy of Trump. It is necessary in order to challenge the malfeasance of Trump, but also as the only currently available form of juridical self-defense against Trump’s continued appeal to his election as the source of his despotic presidency.

For Democrats to support impeachment is for them to demonstrate publicly that they take the Constitution seriously, take their jobs seriously, and deserve to be taken seriously by American voters.

Trump is an illegitimate president. And he ought to be challenged, and removed, by every legal means necessary.

House Democrats ought to follow the lead of almost all of their party’s contenders for the Presidential nomination, and start impeachment proceedings now. Investigate. Indict. Try. Let Senate Republicans lie and obstruct and acquit. And let their lies and obstructions and hypocrisies be plainly evident to the entire world. And use this to run against them and to defeat them in 2020.

To allow Trump to continue to act as if he has legitimacy is simply to continue to legitimate him and his party.

To do this is cowardly, stupid, and wrong.

It’s time to do the right thing.

If not now, when?

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Jeffrey Issac

Jeffrey C. Isaac

Jeffrey C. Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington. His books include: "Democracy in Dark Times"(1998); "The Poverty of Progressivism: The Future of American Democracy in a Time of Liberal Decline" (2003), and "Arendt, Camus, and Modern Rebellion" (1994).

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