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This @qjurecic thread has me thinking about how a political decision not to pursue impeachment can have serious consequences for impeachment as a tool to deter criminal/abusive conduct. And I wonder if those saying impeachment is off the table are thinking of those consequences.
The official DOJ position is that the President can’t be indicted while he is in office. After the Mueller report, I imagine that Trump is well aware of that policy.
If congressional leaders make public statements that the political costs of impeachment are too high, then the message that I imagine this president will hear is that there are absolutely no limits on what he can do in office.
This particular president has shown himself to be quite willing to abuse his powers (or at least try to). And so while I know that social science evidence doesn't necessarily support the idea that deterrence is usually driven by enforcement statements, I'm worried Trump might be.
But leaving this particular president aside, I'm concerned about what message is sent by a Congress will never pursue impeachment unless they feel confident that the Senate will convict. I am concerned because it reminds me of certain troubling criminal enforcement patterns.
Take, for example, sexual assault cases. Police & prosecutors often say those cases are difficult to win at trial—especially cases where the victim and defendant already knew each other or cases where the victim had been drinking/using drugs.
Because they think juries are likely to acquit in those cases, police will often say that those allegations are “unfounded” and close the file. Similarly, many prosecutors will either decline to charge or offer extremely lenient plea bargains.
I’ve often wondered what we, as a society, lose by not having juries make those decisions.
Don’t get me wrong: I know that juries are not perfect. They sometimes convict the innocent and acquit the guilty. And maybe repeated acquittals might send damaging messages to the public.
Don’t get me wrong: I know that juries are not perfect. They sometimes convict the innocent and acquit the guilty. And maybe repeated acquittals might send damaging messages to the public.
But the message that we will not bring sex assault cases because we *assume* juries will acquit is also damaging.
It says that the public officials charged with enforcing the law are unwilling to lose cases. As a result, these crimes continue to carry stigma that others don’t.
It says that the public officials charged with enforcing the law are unwilling to lose cases. As a result, these crimes continue to carry stigma that others don’t.
I’m not a political strategist so I have no idea whether Congress is making the right “political” decision. But I don't think we should lose sight of the fact that there is more at stake than politics. And maybe a political loss actually promotes more important values. /end
