TUESDAY, FEBRUARY 9, 2021
"Whither punishment," Times reader says: Yesterday morning, the New York Times published several letters regarding our latest impeachment trial.
One letter provided food for thought. Here's that letter's full text:
To the Editor:
I am sadly convinced that there is nothing that would lead these Republican senators to convict Donald Trump, no matter what offenses he committed. Indeed, with this shabby group, I am convinced that Richard Nixon would not have needed to resign, since he would have been acquitted!
I am therefore left with two questions.
First, with Republicans claiming, wrongly I believe, that you can’t convict after the president has left office, do we accept that he or she can do anything in his or her last month or so?
And the wider question is whether there is any point to impeachment anymore in an age of hyperpartisanship. Is it merely useful for P.R. value? Do we just accept that the president is immune to punishment in the future? Or can we find a substitute punishment in its place?
To say this is worrying is an understatement.
The letter came from a reader in the Bronx. He's worried by the thought that future presidents might be "immune to punishment." Also, since it's getting so hard to impeach our presidents, he wonders if we could possibly find some type of "substitute punishment."
We'd offer several reactions:
As a general matter, presidents have almost never been "punished" by impeachment. From George Washington through Bill Clinton's first term, only one president had ever been impeached, and he was acquitted at his Senate "trial."
That was almost two hundred years without a whole lot of punishment. Despite our failure to punish our presidents, we escaped with just one Civil War.
Beyond this, the writer is worried by the (widely rejected) Republican theory that you can't "convict" a president after his term has expired. If we accept that theory, the writer asks, "do we accept that he or she can do anything in his or her last month or so?"
In one obvious sense, the answer to that question would be no. If a president commits a crime in his or her last month, he or she can be prosecuted for that crime after leaving office.
The same is true of Donald J. Trump. If Trump committed a criminal offense with respect to the January 6 riot, he can be charged with that crime!
He can be convicted in a real trial He can receive an actual punishment, preferably in a damp cell.
The writer offers a wider question. He wants to know "whether there is any point to impeachment anymore in an age of hyperpartisanship."
Almost surely, the answer is no (except for the partisan "P.R. value" gained in a fruitless trial). In an age of hyperpartisanship, it will be very hard to get two-thirds of any Senate to convict a president of "high crimes" and remove him or her from office.
(As noted above, this will simply continue the historical norm. In the several centuries preceding this hyperpartisan age, we never saw two-thirds of any Senate convict any president either!)
This leads us to the question which seems most relevant here. How do we deal with the underlying problem—with our current state of hyperpartisanship? How do we deal with a world in which Our Town wants to see Trump suitably punished, but 75 million of our fellow citizens wanted him re-elected?
Almost surely, we won't be able to punish our way out of our current situation. Our situation arises from a vast change in technologies—from the rise of partisan cable, partisan talk radio, the partisan Internet and crackpot social media.
It used to be hard to hear crazy ideas. Now, crazy ideas are a very big business. Crazy ideas are all around, and it's becoming clear that we the humans are amazingly short of basic discernment when confronted with crazy ideas.
The crazy, foolish and unhelpful ideas aren't all found among the people we loathe. We also fall short of perfection in Our Town, and we will never be able to punish our way out of this mess.
To the letter writer, we'd offer a different approach:
How do we persuade the others, the ones we're determined to loathe? As Abraham Lincoln might have asked, what might we ourselves have done wrong to help create this mess?
How did Trump ever get into office? Here in Our Town, we and our favorites played a large role in creating this very large mess!