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.
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Trump’s ineffectual response to Hurricane Maria, which has killed nearly 3,000 residents of Puerto Rico and the U.S. Virgin Islands, has received scant congressional attention. Mitch McConnell has adamantly prevented legislation that would protect Robert Mueller’s investigation from receiving a vote.
Senate Republicans have also failed to use the Senate’s advise-and-consent powers as intended. Executive branch nominees who are completely unqualified (Education Secretary Betsy DeVos, Housing and Urban Development Secretary Ben Carson, Energy Secretary Rick Perry), ludicrously corrupt ( former Health and Human Services Secretary Tom Price), or both ( soon-to-be former Interior Secretary Ryan Zinke, former EPA Administrator Scott Pruitt) were hand-waved into office by a narrow Republican majority. (Price, Zinke and Pruitt resigned in disgrace, though Zinke hasn’t yet left office.)
Republican Senators have responded to the American Bar Association rating many of Trump’s judicial nominees “unqualified” by preemptively declaring that it would ignore the ABA’s ratings.
And when Trump’s Supreme Court nominee Brett Kavanaugh was credibly accused of sexual assault and responded with a nearly-unhinged partisan rant when testifying in response, Senate Republicans responded by ramming him through rather than insisting that instead Trump nominate one of he many similarly qualified conservative judges who would cast similar votes and weren’t facing plausible accusations of serious criminal actions.
With a few honorable exceptions, Senate Republicans have collectively refused to apply any serious scrutiny to Trump’s nominees.
With Republicans taking advantage of an incredibly favorable (and gerrymandered) map in addition to state-level voter suppression to expand their Senate majority, the lack of scrutiny given to Trump’s executive and judicial nominees will persist. But with Democrats taking over the House, its days of acting as Trump’s accomplice after-the-fact rather than as part of an independent branch of government is over.
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.
And as long as Trump remains extremely popular among Republican voters — and it’s hard to see what revelation could change that at this late date — the supermajority requirement is not going to save us, either.
It’s true that Richard Nixon was forced to resign when his support among Republican elites crumbled, but this is a very different Republican Party. Reasonable people can disagree about the merits of the House impeaching Trump if the evidence uncovered by independent investigations warrants it, but it almost certainly won’t result in Trump being forced from the presidency any more than it forced either Andrew Johnson or Bill Clinton out of the White House.
That does not mean that the Democrats taking over the House is meaningless in terms of Trump’s abuses of power. Trump’s routine misconduct has mattered politically: His approval ratings remain remarkably low for a president with (what was, for a while at least) a steadily growing economy, and that unpopularity helped produce a Democratic wave in the midterms.
Congress may not remove Trump, but House Democrats actually conducting oversight makes it marginally more likely that American voters of various stripes will reject Trump by a large enough margin that even the anti-democratic mechanisms of the Constitution and active Republican vote suppression can’t save him. It may be that the institutions our Founding Fathers created will not save us, but the citizens about whom they were so worried will be able to save ourselves.