The one move that could completely cripple Trump

It’s not enough for the Democrats to win the midterms. Whether they take back one or both chambers of Congress, their overriding objective must be to cripple the remainder of Donald Trump's presidency and dismantle the MAGA movement he leads. Holding Trump and his key enablers to account for their lawlessness and corruption will be the standard for success. Without accountability, there will be no justice and no end to the growing threat of fascism in America.

Of all the accountability tools that will be available should the Democrats prevail on November 3, impeachment and court reform stand out as the most powerful. Both are implicitly on the midterm ballot, and while neither is a magic bullet for checking Trumpism, they can and must be deployed far more aggressively and urgently than in the past.The road ahead won’t be easy, but the party may never get another opportunity.

Impeachment

The Supreme Court’s 2024 decision on presidential immunity (Trump v. United States), penned by Chief Justice John Roberts, has made it all but impossible to hold Trump accountable through ordinary criminal prosecutions. As legal analyst Jeffrey Toobin has noted, Roberts’ opinion contains language that “suggests the president cannot even be investigated for his official actions,” much less indicted.

But the immunity ruling in no way undermines Congress’ impeachment powers. Even Trump’s lead lawyer in the case—D. John Sauer, now the administration’s solicitor general—acknowledged the broad scope of the impeachment power, contending that the Constitution’s Impeachment Judgment Clause (Article I, Section 3, Clause 7) requires that a president be impeached by the House and convicted in the Senate before being prosecuted criminally. Although the court rejected Sauer’s prerequisite argument, it recognized, consistent with the views of the Founders, that impeachment is a political process separate and apart from criminal prosecutions.

As Trump’s lawlessness and corruption have become more brazen and unrestrained, appeals for a third impeachment are mounting. In early October, the Philadelphia Inquirer published a series of editorials and op-eds calling on Congress to act in response to the president’s unconstitutional military operations in Iran and elsewhere; his attacks on judges, journalists, law firms, and political opponents; his threats to execute members of Congress; his reckless deployment of Immigration and Customs Enforcement agents; his inhumane mass deportations and detentions; his assault on birthright citizenship; and his use of the presidency for base self-enrichment, among myriad other “high crimes and misdemeanors.”

As Ralph Nader and Bruce Fein put it in their contribution to the Inquirer series, “Trump has turned the Constitution into a museum piece and claimed the infinite unchecked power of a dictator.” In their view, the “doubting Thomases who dismiss” a third impeachment are turning a blind eye to Trump’s “litany” of derelictions.

Even if conviction in the Senate is unlikely, the process itself has enormous value. Writing for LawFare in 2021 at the outset of Trump’s second impeachment trial, Princeton University political science professor Keith Whittington explained:

[R]emoval and disqualification are not the solepurposesoftheimpeachmentclause. The impeachment process is a “grand inquest” in the sense that it is congressional oversight on steroids. The impeachment power gives the first, most democratic branch of the government the ability to scrutinize the actions of individuals in the other branches of government and call them to account for their actions… What’s more, the impeachment process serves as a warning to future officeholders.

There is also no reason for the Democrats to limit impeachment proceedings to the president. The vice president and all civil officers of the United States, including the justices of the Supreme Court, will all be fair game. Aware of his exposure, Defense Secretary Pete Hegseth is reportedly eyeing a Senate seat in Tennessee, hoping that if Marsha Blackburn becomes the state’s next governor, she will appoint him to fill her vacant seat, as senators are not considered civil officers of the US.

Many Trump aides are also reportedly seeking pardons to protect themselves from future federal criminal charges. Trump has expressed a willingness to comply, but the Constitution is very clear that the pardon power does not extend to cases of impeachment.

With the midterm elections behind them and an electoral base demanding action, we could see not one but multiple impeachment inquiries in the House—and, later, trials in the Senate—aimed at airing the facts of the Trump administration’s malfeasance for all the world to see, and serving as a catalyst for legislation to prevent another Trump-like tyrant from rising in the future.

Court Reform

John Roberts and his Republican confederates have issued a blistering succession of reactionary majority opinions, not only on presidential immunity, but also on votingrights, gerrymandering, unionorganizing, the death penalty, environmental protection, guncontrol, abortion, affirmative action, campaign finance, the use of dark money in politics, and equality for LGBTQ+ people, to cite just a few of the worst.

Reversing the tide and restoring our rights will require court reform. And while the most far-reaching reforms—such as more justices and term limits—will have to wait until the election of a Democratic president, a new Democratic Senate majority will be able to immediately block the confirmation of any pending or future Trump judicial nominees.

Clarence Thomas, 78, and Samuel Alito, 76, are the Supreme Court’s oldest members. Both are far beyond their salad days, and Alito has said that he is considering retirement before Trump leaves office. If either or both step aside while the Republicans hold the Senate, Trump will undoubtedly replace them with younger and possibly even more extreme jurists, such as James Ho of the 5th US Circuit Court of Appeals, or the obsequious Florida US District Court Judge Aileen Cannon, who killed the Mar-a-Lago documents case. If the Democrats retake the upper chamber, the two senior justices will likely hang on as long as they can, but neither will outlast the term of the next Democratic president, who can replace them with liberals.

The outlook for the lower federal courts, where the vast majority of cases are decided, is even more favorable. A Democratic Senate majority should mean the end to new Trump judges anywhere in the country.

Where We Come In

Nothing is certain in politics, and it is entirely possible that the Democrats, once back in the majority, will try to mend fences with their MAGA adversaries in a futile attempt to restore the status quo ante Trump.

This is where we come in.

Voting is essential, but it cannot be the end of our political engagement. After the midterms, and throughout the run-up to 2028, we will need to keep the pressure on. We cannot allow the Democrats to chicken out, as they have so often in the past. There can be no more Biden nice guys, and no more Merrick Garlands. We have seen that movie before, and it isn’t worth a sequel.