Impeachment fundamentally about preserving voting rights

A UNITED STATES attorney general once said: “From a civil liberties standpoint, the greatest danger to our free system is that the incumbent government use the apparatus of the state… in a way that could affect the outcome of an election.” That attorney general was William Barr. And he said it last week, on the day the House of Representatives issued draft articles of impeachment accusing President Trump of abusing his power to corrupt the 2020 election.

It may be the truest thing Barr ever said.

Of course, Barr stumbled into this truth purely by accident. Barr was spouting off to NBC’s Pete Williams about his theory that the FBI lacked an adequate basis to probe the Trump campaign’s potential involvement with Russia’s criminal interference in the 2016 election. That theory has now been debunked by the Department of Justice’s inspector general, but it’s no surprise that Barr would misread the IG report. Misreading stuff is kind of Barr’s thing. He began his current tenure as AG by inaccurately summarizing Robert Mueller’s report on the Russian interference that then-candidate Trump encouraged, welcomed, and exploited. When it comes to Trump, Barr seems to have trouble with reading comprehension.

Nevertheless, as applied to Trump, Barr’s comments about civil liberties and elections are profound. Although the House’s articles of impeachment understandably accuse Trump’s Ukraine plot of abusing his powers, of violating his oath, and of obstructing Congress, the most important American victims of the Ukraine plot are not principles or members of Congress. They are the voters—all of us—who Trump tried to rob of a free and fair election. And so, as the House decides whether to impeach President Trump, it’s important to remember that, as with so many other aspects of Trump’s presidency, this is a scandal about civil liberties.

The facts of the Ukraine plot are undisputed. As Professor Orin Kerr has written: “In an effort to falsely portray his likely 2020 opponent as being under criminal investigation, Trump sent his personal lawyer . . . to co-opt official government power to get a foreign country to issue a press release stating that Trump’s opponent was under investigation.” And as Professor Pam Karlan’s testimony demonstrated, it was nothing less than an attempt to make the 2020 election less fair and less free. There could hardly be a graver threat to civil liberties.

And from a civil liberties standpoint, it’s cold comfort that the plot was foiled. Impeachment is prophylactic; in deciding whether a president has committed treason, bribery, or a high crime or misdemeanor, Congress should reasonably ask whether the worst is over. But with Trump, the worst is never over.

To the contrary, Trump has all but promised to keep trying to corrupt the 2020 election unless Congress stops him. While some argue that it would be unfair to impeach Trump over the Ukraine plot because he couldn’t have known he’d be impeached for it, that is decidedly not Trump’s argument. If it were, he’d simply agree not to repeat this conduct. But Trump will agree to no such thing. He contends that the Ukraine was “perfect,” which is his way of saying that he’ll definitely repeat it.

This is a grave, imminent, and ongoing threat to voting rights in America, and there is only one constitutionally-prescribed way to stop it: impeachment.

To be clear, this a threat to all voters, no matter who they’re likely to support in 2020. Trump’s opponents don’t want a rigged election, and neither should his supporters. If Trump is re-elected through an election that is not free and fair, there will be serious questions about his legitimacy as president.

So it’s unfortunate that much of the impeachment coverage proceeds as though the core issue is not a severe threat to the next election—which is the reality—but instead an academic debate about what Trump deserves, or about the framers’ intent. Personally, I don’t know what the framers would have done about Donald Trump. Nor does anyone else.

Instead of asking impossible questions about what the framers would hypothetically do in the 21st century, maybe we should consider what they actually did in the 18th. They rejected a king, and then they wrote a constitution whose text and structure include a tool capable of safeguarding America from again being ruled illegitimately. The tool they created, a peaceful impeachment process, is milder than the one they actually used.

To say that impeachment shouldn’t be used now, in this moment, is to ignore our nation’s history, our constitution’s text, and our current reality.

So Attorney General Barr was right: Corrupting an election is perhaps the greatest danger to our system of government. And it is exactly the danger Trump poses. That threat, to all Americans, is the true heart of the impeachment debate.

Matthew Segal is legal director of the American Civil Liberties Union of Massachusetts.