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While we wait for Mitch McConnell and the White House to figure out whether they can get away with beginning and ending President Trump’s impeachment trial in an afternoon, a provocative new question has been raised: Once impeachment is over, presumably with an acquittal in the Senate, could House Democrats impeach Trump for a second time?
Don’t dismiss it as an absurd idea just yet. Not only might it happen, but it also might be absolutely necessary. At the very least, considering the possibility will help us understand just how deep our governing crisis could get if Trump wins a second term in office.
This question has come up because of a court case involving former White House counsel Don McGahn, who defied a subpoena from the House Judiciary Committee to give testimony regarding the shocking findings of Robert S. Mueller III’s investigation into the Russia scandal.
While Democrats had many questions they wanted McGahn to answer, there was particular interest in one episode that seemed a clear case of obstruction of justice. According to Mueller’s report, in 2017 Trump ordered McGahn to fire Mueller, and McGahn refused and threatened to resign. Then later, Trump ordered McGahn to lie publicly about a newspaper article that accurately recounted the fact that Trump had told him to fire Mueller. Finally, Trump tried to get McGahn to create a false paper trail claiming that his order to fire Mueller had never occurred.
That series of events could (and probably should) have been the basis for another article of impeachment, but Democrats chose instead to focus the articles on Ukraine. So in the current court case, the Justice Department has argued that now that impeachment articles have been approved, there’s no longer any need for the courts to rush in to decide whether McGahn has to testify to the Judiciary Committee.
But in a filing to the court of appeals on Monday, lawyers for the committee said this:
If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment.
You might assume that this is just a clever legal argument, and maybe that’s what it was intended to be. But it’s worth taking the idea seriously, not just of new articles being added to the current impeachment but of an entirely new one at some future date.
The first thing to understand is that the mere fact that no president has ever been impeached more than once doesn’t mean that it can’t happen if the president’s behavior warrants it. There’s no “one and done” clause in the Constitution stating that Congress has only one opportunity to impeach, and if the president is acquitted then he has a free pass for the rest of his time in office.
And if there were ever a circumstance where a president at least hypothetically might warrant a second impeachment, it’s this one: a president with utter disregard for all norms of ethical behavior who nonetheless has enough slavish support from members of his party in the Senate to make conviction virtually impossible.
To clarify, I’m not talking about Trump being impeached again for the misdeeds for which he is currently being called to account. I’m talking about an impeachment for new misdeeds that we have yet to discover, or that he has not yet committed but will in the future.
When you consider that future, you realize that another impeachment is a real possibility. Up until now Trump has been acting as though rules and even laws don’t apply to him. He has prevented aides from complying with lawful subpoenas. He had his unhinged personal lawyer take over American foreign policy toward Ukraine, and pressured a foreign government to aid his reelection campaign. He has made clear that he has every intention of seeking and accepting help from other foreign governments for that campaign, beginning with, but not limited to, Russia. He says things such as: “I have an Article II, where I have to the right to do whatever I want as president.”
Trump will in all likelihood be acquitted by the Senate, which he will take as a vindication of his prior behavior and proof that he is able to escape any genuine accountability while in the Oval Office, just as he has for his entire life.
Now imagine that he wins reelection in November. Does anyone seriously believe that in a second term, Trump wouldn’t commit more impeachable offenses?
Try to imagine what a second-term Trump will be like. Will he suddenly begin acting with high ethical standards and a deep respect for the law? Or will he feel even more deeply that he can do whatever he wants and no one can stop him?
At the moment he is at least constrained by the possibility that if he gives his criminal instincts free rein he could suffer for it at the polls — and that has proved to be little constraint at all. Just imagine what he would do when he no longer had to worry about reelection. Is there any bit of self-dealing or abuse of power that presented itself to which Trump would say, “I shouldn’t do that — it would be wrong”?
Where will that leave Congress? He has already hamstrung its ability to conduct oversight through blanket refusals to cooperate (and gotten support for that stonewalling from the same Republicans who conducted eight separate investigations of Benghazi, full of outraged fulmination about the executive branch’s obligation to submit to congressional investigations). When some appalling new scandal is revealed, full of naked corruption and presidential misdeeds, what options will Democrats have? Impeaching him again, even if they can’t win a conviction in the Senate, might be their only choice, and the bare minimum required to fulfill their obligations to the Constitution and the rule of law.
So a second impeachment is not just possible; it also might be all but inevitable given the moral bankruptcy of this president and the gang of sycophants he surrounds himself with. If you think we’re in a crisis of governance now, just wait until Trump wins reelection.