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Is it possible to have a dispassionate discussion about the United States Senate’s second impeachment trial of former President Donald J. Trump? I’d like to try because there are lessons here that should be discussed dispassionately.
Before we get into this, I want to make it clear that I am neither a lawyer nor a constitutional scholar. I have no special or unique knowledge of the events or any political opinion that I am willing to share with you. However, I am a senior strategic adviser to a fair number of successful business leaders, and this writing should be viewed through that lens.
While I awaited the inevitable verdict, Upton Sinclair’s concise words kept ringing in my ears: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” Said differently, it is easy to predict an outcome when incentives are misaligned with your objective. So, based upon the incentive structure of the senators/jurors, either we have to question the strategy of choosing the specific charge in the articles of impeachment, or we have to assume that the obvious, predictable outcome was the desired objective of the effort.
Advanced knowledge of the outcome
From the very start of the proceedings in the House, it was clear to everyone that the articles of impeachment would be successfully drafted, voted upon and sent to the Senate. It was equally clear that, due to the 50/50 partisan split in the Senate, there was virtually no chance that 67 senators would vote to convict. I’m stating the obvious, specifically because it is (and was) obvious. Let’s agree that these are known outcomes of any partisan proceeding in the Congress of the United States. (Here’s a link to the historical record of impeachment trials in the Senate.)
What was the objective?
Knowing that no impeached president has ever been convicted in the Senate, and that political parties have historically closed ranks and voted along party lines, what was the desired objective?
Did the House believe that what former President Trump did was so egregious that he would be the first president to be convicted in the Senate? The political math was well understood. That wasn’t going to happen. So, did the House simply want a historical record of the events that led up to Jan. 6? Would a very public, historically unprecedented, partisan trial help the Democrats accelerate their legislative agenda? Would it help them with midterm election results? Viewed through the lens of “the objective,” it’s hard to understand the benefits of a trial and acquittal, as an acquittal was all but the guaranteed outcome.
Strategic objectives
In America, we are taught from a young age that no one is above the law. Our legal system is not only a cornerstone of our democracy, it is also foundational to our economic success. Even lay people know that there are books of laws that cover civil cases and criminal cases—I’m being specifically childish here because you don’t need a legal degree to contact a lawyer about your grievance, or your injury, or the injustice you wish to litigate.
If the objective was to punish the former president for his actions, as suggested by former Secretary of Labor Robert Reich, there were several other ways to accomplish this, including invoking the 14th Amendment, Section 3, which, by simple majority vote in both houses, would have prevented the former president from holding any future public office for having “engaged in insurrection or rebellion.” Reich goes on to say that the former president could have been prosecuted under title 18 U.S., Code 2383, which makes it a federal crime to incite insurrection against the United States and is punishable by up to 10 years in prison. Additionally, Congress could also have, by simple majority, stripped the former president of the perks generally granted to former presidents, the $200,000 annual pension, and the $1 million annual taxpayer-funded travel budget.
As we all know, there are state-level civil and criminal remedies that can be sought as well (investigations are already underway in New York and Georgia), and some of these cases can result in potential prison sentences upon conviction. We’ve never sent a former president to jail; that’s the stuff of banana republics. But, when considering potential outcomes, impeachment was not the only available legal strategy.
So, what was this impeachment really about? There must have been a strategic objective other than convicting the former president because, as written, the articles of impeachment were never going to result in a conviction.
Strategy matters
I am overly focused on the House’s objective because if the objective was to deter future presidents from building on the former president’s aberrant behaviors, the impeachment was the wrong strategic approach. If the goal was to convict the former president of a crime, impeachment was the wrong strategic approach. If the goal was to hurt the Republican party, their leaders or their elected officials, impeachment was the wrong strategic approach. As the impeachment articles were written, no Republican senator was incentivized to vote to convict. With the exception of true heroes, no one is ever incentivized to vote or act against their own self-interest.
Other known outcomes
There are other significant ripple effects of the chosen impeachment strategy. Upon impeachment, the opposition would enjoy an accelerated fundraising opportunity, and upon acquittal, the opposition would be emboldened and would have the public relations ammo to scream innocence to the rafters and another fundraising windfall.
The more you think about the well-known monetary and political incentives that were going to drive an almost guaranteed outcome, you have to wonder deeply about how clearly the House defined its objective. And so I’ll end where I began. Either the House simply did what it could under the rules of the Constitution and its members are hoping that others will continue the fight in the courts, or we have to assume that the obvious, predictable outcome was the desired objective of the effort.
There are other explanations, of course. And I’m sure books will be written about this and scholars and pundits will all weigh in over time. But the business lesson here is simple and clear: It is easy to predict an outcome when incentives are misaligned with your objective.
Author’s note: This is not a sponsored post. I am the author of this article and it expresses my own opinions. I am not, nor is my company, receiving compensation for it.
