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Trump Can Be Defeated In Spite of the Constitution

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I have a year-end article for NBC News about how how institutions have enabled Trump — who has never had anything like majority support — more than they’ve constrained him:

The framers of the United States Constitution thought a great deal about the possibility of someone like Donald Trump — grossly unqualified and incompetent, demagogic, self-dealing — becoming president. They tried to create a constitutional system that would prevent someone like exactly like him from becoming head of state, and how to limit the damage he could do if he did.

But for the last two years, in part because of the rise of hyper-partisanship that the framers failed to anticipate, these measures have failed. Institutions will not save us from the worst aspects of Trump and his enablers.

The institutional failures began with Trump assuming office in the first place. Because many framers were skeptical about “excessive” democracy, the president was not chosen directly by the people but through an unwieldy mechanism that would filter popular sentiment through elite gatekeepers (and, not incidentally, through slaveholders). The Electoral College, Alexander Hamilton asserted, would assure to “a moral certainty” that “the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

That analysis has, to put it mildly, not held up. The American people — to their credit — rejected Donald Trump. But the constitution thwarted their will by installing the second-place finisher in office.

The separation of powers that theoretically gives Congress strong incentives to check executive power has also failed during the Trump administration. Once Trump was able to establish to the satisfaction of Republican elites that, despite his gestures against party orthodoxy during the primaries, he was fully on-board with soon-to-be-former House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell’s agenda of upper-class tax cuts, savage healthcare cuts and young reactionary judges, Congress was happy to forgo any oversight.

House and Senate committees that have run one investigation after another into the mere existence of Hillary Clinton’s private email server, even once questioning her for 11 hours, have find nothing worth investigating about Donald Trump routinely using his office to enrich himself or potential collusion with the agents of the Russian state who interfered with the 2016 elections.

[…]

But the question remains: If either Robert Mueller or a House investigation reveals that Trump has engaged in criminal activity, can he be removed from office?

Almost certainly not. Under the rules established by the constitution, the House can impeach a president with a simple majority. But the conviction by the Senate — which would be required to actually remove Trump from office — requires a two-thirds majority.

The supermajority requirement (unlike the Electoral College) was, however, not a blunder by the framers. If a simply majority of both houses was sufficient to remove a president, Barack Obama might have been ejected from the presidency for wearing a tan suit in 2015. But the rule means that Trump cannot be removed from office unless Republican elites agree that he needs to go.

The conclusion is a little more optimistic…

 

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