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Trump Is Leaving Office With a Bunch of Legal Problems– And We’re Not Simply Discussing Impeachment

President Trump has only hours left in the White House — and the first few months of his time as a former president seem likely to be very different than any of his predecessors’. That’s not just because his popularity is plummeting and his party is splintering over whether to support or condemn him. He’s also leaving office with an impeachment trial and a host of other legal problems on the horizon — not exactly what you’d call a post-presidency glow.

[Related: The Final Two Months of Trump’s Presidency Were The Most Important Ones]

The impeachment trial, in particular, seems likely to ensure that Trump, and his role inciting the Jan. 6 attack on the Capitol, remain in the headlines even after he’s left the presidency. Trump won’t be the first president to leave the White House in a cloud of legal liability, of course. But he is likely to have the dubious honor of being the first former president to be tried by the Senate. And the newness of that situation means that there’s a lot of uncertainty about what the trial will look like — and what it will mean for Trump’s personal and political future.

House Speaker Nancy Pelosi is expected to send the article of impeachment to the Senate tomorrow or Friday, which would officially start the trial at 1 p.m. Eastern the following day and set the stage for opening arguments next week. The details of how the trial will proceed are still being worked out, and Republicans could try to contest its legitimacy because Trump will no longer be president when the trial begins. But even though removal from office will no longer be a viable threat, the result could still be very serious for him. If a two-thirds majority of senators votes to convict him, it would likely take just a simple majority to disqualify him from holding federal office again, dashing any hopes of a Trump comeback in 2024.

Disqualification, of course, hasn’t been used very often as a remedy in the history of impeachment — nor is it common for an impeachment trial to continue after the defendant is no longer in office. But there are historical precedents for both. Three people — all federal judges — have been disqualified from holding future federal office after being impeached and convicted. And in several cases, including one in 1797, just ten years after the Constitution was written, the Senate conducted an impeachment trial after the defendant was no longer in office. In the late nineteenth century, while contemplating a Senate trial for William Belknap, a former Grant administration official mired in a corruption scandal, the Senate voted on whether they actually had jurisdiction to try a former federal officer — and a majority concluded that they did.

Why 10 Republicans voted for impeachment | FiveThirtyEight Politics Podcast

Of course, that doesn’t mean that an impeachment trial of a former president will be a simple thing. Trump could still try to challenge the constitutionality of the trial itself, or try to overturn its outcome if he’s ultimately convicted and disqualified. And some Democrats have expressed concern about the prospect of an impeachment trial that stretches into the early months of Biden’s presidency, potentially overshadowing his agenda and eating up time that the Senate could be using to confirm Biden’s Cabinet appointees or to pass legislation like the massive coronavirus stimulus bill that is likely to be one of Biden’s first priorities as president. At one point in the past month, high-ranking House Democrat Jim Clyburn even suggested that the trial be delayed until after Biden’s first 100 days in office.

Biden, though, seems open to the idea of an impeachment trial that unfolds as he’s taking the reins. He said last week that he has spoken to Republican Senate Majority Leader Mitch McConnell about a possible “bifurcation” process where the Senate would spend half the day on Trump’s impeachment trial and the other half working on a COVID-19 relief bill and confirming Biden’s Cabinet nominees. It’s unclear whether the Senate will adopt this structure, but at the very least it signals that Biden realizes he will likely have to juggle Trump’s impeachment trial among his many priorities.

[Related: Biden’s Team And Priorities Show How The Democratic Party Changed In The Trump Era]

The trial could be prolonged, though, if Trump decides to fight back. Frank Bowman, a law professor at the University of Missouri and the author of a book on the history of impeachment, said that he could imagine Trump suing to stop the trial from happening, or suing to overturn a conviction, perhaps on the grounds that the Senate doesn’t have power over him once he has left the presidency, since impeachment doesn’t apply to private citizens. The problem, Bowman said, is that the timing of the House vote to impeach Trump — which did happen while Trump was still president — significantly weakens any argument Trump could make about the constitutionality of a trial or conviction happening after he leaves office.

“If you’ve already asserted jurisdiction over him while he’s president, it becomes really hard to say, well now that he’s out of office we can’t try him or render a judgment,” Bowman said. If that were the case, anyone who’s impeached in the future could simply resign to avoid a trial, Bowman pointed out — or wait to commit impeachable offenses until the end of his term is in sight. It’s possible, too, that Trump could argue that disqualification doesn’t apply to elected officials, if the Senate gets to that point.

It’s not clear, though, just how much of a problem the trial will actually be for Trump. Even if the trial is deemed to be constitutional, a two-thirds majority vote to convict him — which would require the support of 17 Republican senators — is far from assured. And without a conviction, it’s unlikely Trump will be disqualified from holding federal office again. According to Brian Kalt, a law professor at Michigan State University, the vote to convict Trump must precede the vote to disqualify him from holding federal office again in the future. (Because it’s never happened before, it’s possible that the Senate could try to hold a disqualification vote without first convicting Trump, but Kalt and other experts said the Constitution is pretty clear that conviction has to happen first.)

But even without an impeachment conviction, Trump might still face other kinds of legal trouble. While he was in the White House, he was protected from criminal liability by the U.S. Department of Justice’s decades-old policy that presidents can’t be indicted while they’re serving as chief executive. But that protection will evaporate as soon as Biden takes the oath of office. Trump could theoretically face charges from federal or state prosecutors for inciting the Jan. 6 riot or for his call to Georgia Secretary of State Brad Raffensperger, in which he pressured Raffensperger to “find” the votes to reverse his defeat in the state.

Is Biden's vision of unity possible? | FiveThirtyEight Politics Podcast

Things could get complicated here, as there’s no reason why a criminal prosecution couldn’t proceed alongside an impeachment trial, according to Kalt. The Senate and the courts might be leery of the two processes running in parallel, but as Kalt said, “If Trump is facing prison, you could imagine the senators saying, ‘Well let’s see how this plays out first,’ and then finish [the impeachment trial] very quickly if he’s criminally convicted.” That, of course, would further delay the impeachment process, since criminal prosecutions typically take months or even years to play out. Some senators, nevertheless, have said that they see criminal liability as a possibility for Trump. Moderate Democratic Sen. Joe Manchin even suggested that a criminal process might be preferable to a lengthy impeachment trial.

It’s not clear, though, whether there are sufficient grounds for Trump to be prosecuted for his role in the assault on the Capitol or his call to Raffensperger, and it’s also very possible that Biden — even if he’s resigned to an impeachment trial — wouldn’t want one of his administration’s first actions to be prosecuting his predecessor.

[How Trump Used His Pardon Power]

Of course, there is still one potential escape hatch for Trump — for the next few hours, at least. While he’s still president, he could issue a pardon for himself that would cover all kinds of legal liability. Reporting suggests that he won’t take this path, though, and it’s not hard to see why. For one thing, it could lead to another impeachment charge, or end up galvanizing more Republicans to vote for his conviction. It also wouldn’t save him from state prosecutors, since presidential pardons only apply to federal crimes, and it might even spur states to go after him more aggressively. And the pardon itself might not hold up in court, if the Biden administration challenges it, since there’s genuine uncertainty about whether a presidential self-pardon is even constitutional.

Trump is leaving the White House with plenty of potential legal liability, thanks to his actions over just the past few weeks, but it’s not clear what legal consequences he’ll face — if any — for his role in the Capitol riot.

Did Trump change the rules of politics? | FiveThirtyEight Politics Podcast

What Trumpism has cost the GOP and the nation | FiveThirtyEight Politics Podcast

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Why Fights Over The COVID-19 Vaccine Are Everywhere On Facebook

If you took one look at the Facebook group Vaccines Exposed, it seemed clear what it was all about. It was “a group opposed to deadly vaccinations,” with over 13,000 members on a platform known to harbor anti-vaccination conspiracy theories. Some of its followers’ recent posts included a video falsely claiming the COVID-19 vaccine will kill people and a post claiming children are having cancer “injected into them. #facts.” Standard anti-vaxx fare.

It was so convincing, Facebook removed the group Friday for violating the site’s community standards. But Vaccines Exposed was really a “honeypot” group run by vaccine advocates hoping to attract the attention of anti-vaxxers and people on the fence. When those folks posted something that furthered the anti-vaxx cause, pro-vaxx members responded and tried to persuade them to question their beliefs. It wasn’t always a gentle exchange.

“In this community, there are people whose goal is purely to educate,” said David Litton, a pro-vaccine member who used a fake account to participate in Vaccines Exposed, and is a podcaster and Twitch stream host who covers conspiracy theories online. “Then there’s a spectrum between that and people who are just trying to dunk on anti-vaxxers for being stupid.”

For example, in response to that video falsely claiming the COVID-19 vaccine would kill people, one member asked why we aren’t seeing this in the thousands of trial participants, another queried why the original poster chose to trust individuals with no science background over experts, while yet another asked, referring to the original poster: “why do we allow these people to breed?”

These skirmishes between pro- and anti-vaccine users aren’t limited to Vaccines Exposed; all of Facebook is a battlefield. And while those confrontations aren’t unique to Facebook — the anti-vaxx movement is as old as vaccines themselves — the site has created an ecosystem that, intentionally or not, has allowed this battle to flourish. And while the social media giant has made efforts to curb the spread of misinformation, it hasn’t been enough to end the battle for hearts and minds. As the American public attempts the most extensive vaccination campaign in half a century, that battle is all the more relevant.

THE PLATFORM

The recently greenlit COVID-19 vaccines represent our best chance at ending the pandemic, so it’s particularly jeopardous to have the American public spending time fighting over a basic fact: vaccines are safe, effective and necessary for public health. While the new COVID-19 vaccines don’t have the benefit of decades of research demonstrating their safety and efficacy like other vaccines, many of the common narratives being spread about the COVID-19 vaccines come from existing anti-vaxx beliefs that have been debunked. It’s true that researchers don’t yet know for sure if the vaccines prevent people from spreading the virus, but we do know, for example, that mRNA vaccines don’t change your DNA. The latter is an anti-vaxx belief so prevalent, it led one Wisconsin pharmacist to allegedly tamper with vials of the vaccine.

The preexisting conflict between anti-vaxxers and pro-vaxxers has now seeped into the much broader discussions about the COVID-19 vaccine on Facebook, according to a November report from First Draft News, a nonprofit organization that provides investigative research to newsrooms tracking and reporting on mis- and disinformation. (FiveThirtyEight has partnered with First Draft in the past.)

“Our research shows how seamlessly old narratives can be repurposed to fit new contexts,” said Rory Smith, a research manager at First Draft and a co-author of the report. “When demand for information about a topic is high but the supply of credible information is low, you get a data deficit, and that deficit will quickly be filled up with misinformation.”

The researchers found that familiar tropes about vaccines, such as the idea that they are unnecessary and just a way for big pharma to make money, have been applied to the COVID-19 vaccine as well. But COVID-19 is, naturally, a much more widely discussed topic, so much of the conversations about vaccines online is now about the COVID-19 vaccine specifically, allowing anti-vaxx narratives to reach audiences who might not otherwise come across them. In fact, leaked audio recordings of anti-vaxx leaders, first noted in a report by the U.K.-based Center for Countering Digital Hate, shows that they strategized to use this exact scenario — anxiety and confusion about the new COVID-19 vaccines — to sow misinformation to a wider audience.

Data from CrowdTangle, a social media tracking tool, reveals examples of anti-vaxx ideas seeping into COVID-19 vaccine conversations across Facebook, including in otherwise unrelated spaces. In a recent search for the word “vaccine” among Facebook groups, I was able to find dozens of examples of discussions in unrelated groups, many of which inevitably had anti-vaxx misinformation in the comment sections.

The anti-vaxx movement has done so well on Facebook in part because it is controversial, and controversy helps make Facebook a lot of money. In 2019, 98 percent of Facebook’s revenue was from advertising — $20 billion in all. Facebook’s advertising is so valuable because it can be microtargeted, based on the data Facebook collects on its users. To collect more and better data (and to expose users to more ads), Facebook needs its users to be active and engaged: liking posts, sharing links, joining groups and commenting. One surefire way to keep people engaged is to expose them to content that provokes an emotional response, like a post claiming the vaccine you’re planning to give your toddler will cause him or her to develop autism.

“What we saw at Reddit was that conflict and controversy generated the most attention,” said Ellen Pao, the former CEO of Reddit and a Silicon Valley vet who now runs Project Inclusive, a nonprofit diversity consulting organization. “These networks are rewarded for engagement. And when people get heated over something, they stay either to engage or to watch.”

A Wall Street Journal investigation last year uncovered how teams within Facebook tasked with addressing the site’s disinformation crisis cited the platform’s design as the root of the problem. An internal company presentation from 2018 included slides that said Facebook’s algorithms “exploit the human brain’s attraction to divisiveness,” and, if not altered, would surface “more and more divisive content in an effort to gain user attention and increase time on the platform.”

And at a congressional hearing in September, Facebook’s former director of monetization, Tim Kendall, made similar observations.

“Social media preys on the most primal parts of your brain. The algorithm maximizes your attention by hitting you repeatedly with content that triggers your strongest emotions — it aims to provoke, shock and enrage,” Kendall said in his opening statement. “This is not by accident. It’s an algorithmically optimized playbook to maximize user attention — and profits.”

More recently, Facebook has made public statements and efforts to tamp down on the spread of anti-vaxx misinformation specifically.

“We are committed to reaching as many people as possible with accurate information about vaccines, and launched partnerships with WHO and UNICEF to do just that,” said Andrea Vallone, a spokesperson for Facebook. “We’ve banned ads that discourage people from getting vaccines and reduced the number of people who see vaccine hoaxes verified by the WHO and the CDC. We also label Pages and Groups that repeatedly share vaccine hoaxes, lower all of their posts in News Feed, and do not recommend them to anyone.”

Still, misinformation finds a way. “You can do these takedowns but that hasn’t necessarily stopped the flow of misinformation, and we can’t forget about the long tail of misinformation,” said First Draft’s Smith. “There are all of these hundreds of thousands or millions of posts that might not get that many interactions but collectively make up a lot of misinformation.”


COLLEEN TIGHE

THE BATTLE LINES

A typical post in the Facebook group What’s Happening In Aurora, IL? garners a handful of reactions. It’s an 81,000-member community group about, well, what’s happening in Aurora, Illinois. Posts often resemble classifieds: someone looking for bakers in the area to make a cake, someone posting a job opening, someone offering second-hand maternity clothes. But a recent post showing the first local health care worker to receive the COVID-19 vaccine drew more than 1,200 reactions and nearly 900 comments, including this one:

Anti-vaxx theories were prominent among the responses, suggesting the vaccine is dangerous and questioning the speed with which it was produced. Both of those doubts were common threads First Draft found in its report. It’s just one example of anti-vaxx beliefs bleeding into otherwise neutral spaces on Facebook.

They’re the same claims pro-vaxx advocates have been battling for years. But the battles don’t all play out the same way. In one private Facebook group called Vaccine Talk, nearly 50,000 pro-vaxxers, anti-vaxxers and people on the fence are encouraged to pursue carefully controlled, civil and evidence-based dialogue — though even in this group, some anti-vaxx and on-the-fence members told me they felt attacked or condescended to by pro-vaccine members. C.I.C.A.D.A. (which stands for Community Immunity Champions and Defenders Association), meanwhile, deploys pro-vaccine users to comment sections overrun with anti-vaxxers.

Take this Facebook post from a children’s hospital in Rochester, New York, showing one of its doctors receiving the COVID-19 vaccine. The post began to attract anti-vaxx comments, such as people questioning the ingredients of the vaccine (in reality, the ingredients are minimal, common and safe) and claiming doctors are only advocating for vaccination to make money (profits are not the motivation for recommending the COVID-19 vaccine). So a C.I.C.A.D.A. member posted in the group, sending up a flare, saying the hospital’s social media team was overwhelmed. Now, the post is flooded with supportive messages, photos of other health care workers getting their shot, and praise for the good example set, burying the anti-vaxx comments and attacks.

“Support doesn’t necessarily mean engaging with the anti-vaccine people; in fact, we encourage people not to do that,” said Dorit Rubinstein Reiss, a law professor who specializes in vaccine law at UC Hastings College of the Law, and a member of C.I.C.A.D.A. “It can mean coming in and providing positive comments. [The group is] there to prevent people from being intimidated into not posting about vaccines.”

Vaccines Exposed, the honeypot group, took a more radical approach, luring anti-vaxxers into an ostensible safe space, only to pull back the curtain on a less sympathetic crowd. One administrator, who asked not to be named, told me she hoped the group might reveal to the anti-vaxx-curious the flaws in many of the claims against vaccination. But the interactions in the group weren’t always constructive, with pro-vaxxers sometimes mocking or ridiculing the anti-vaxx posters.

Group member Litton defended the more combative method, noting the people he affiliates with avoid explicit trolling (things like doxxing or threatening), and that humor — even at someone’s expense — can be an effective strategy in battling misinformation.

But the deception required to draw in members in the first place makes it unlikely the honeypot group will persuade anti-vaxxers, according to Rachel Alter, a research affiliate at the Vaccine Confidence Project at the London School of Hygiene & Tropical Medicine.

“If your goal is to change people’s minds, you don’t want to start out by tricking them right off the bat,” Alter said. “People aren’t going to stick around long enough. They’re going to see what’s going on and get defensive or leave.”

Research on how people form — and change — beliefs suggests that a gentler approach is more effective. People tend to see attacks on their beliefs as attacks on them personally, and we are all biased against information that challenges our existing worldview. Asking questions, sharing stories and lowering the temperature by avoiding insults can make people more susceptible to new ideas, according to Karin Tamerius, a former political psychologist who founded Smart Politics, a program that trains people on how to have productive conversations with people they disagree with. Tamerius based her program on existing research into beliefs and persuasion and said changing views is a long, difficult process that is unlikely to occur through a single Facebook interaction.

This is ultimately the problem at hand. Best intentions and science-backed strategies are great, but the battle continues to spread because Facebook is designed for just that.

Industry researchers believe there are other efforts Facebook could make to reduce the impact of the anti-vaxx movement on the site. Last year, nonprofit research group Ranking Digital Rights released a report on how algorithmically driven advertising structures have exacerbated the disinformation epidemic by increasing its spread, and recommended social media sites look at changing these systems — rather than moderating content — to curb the spread. People will always post nonsense on the internet. The platforms we use don’t need to be designed to lead people to it.

And despite all of Facebook’s efforts, many users are still being exposed to misinformation at precisely the moment in time we need them to be well-informed.

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Trump Made The Federal Courts Whiter And More Conservative– And That Will Be Difficult For Biden To Reverse


PHOTO ILLUSTRATION BY EMILY SCHERER / GETTY IMAGES

During most of Donald Trump’s presidency, Congress was in a state of persistent deadlock, passing relatively few big pieces of legislation. But the Republican-controlled Senate stayed humming, nonetheless — thanks to a steady stream of judicial nominees from the White House.

After only one term, Trump filled 28 percent of vacant seats on the federal bench, including 27 percent of active federal district court judges and 30 percent of active appeals court judges, not to mention three Supreme Court justices. This figure is far higher than for other recent presidents in their first terms — by January 2013, for instance, Barack Obama had appointed just 17 percent of the vacant federal judge spots, and at the end of his first term, George W. Bush had appointed 21 percent. In fact, Obama was able to appoint only a slightly larger share of the federal bench in his eight years in office (31 percent) than Trump managed to do in his one term.

Trump also managed to radically alter the makeup of the courts. His appointees are not only far more conservative than other presidents’ picks but far less racially and ethnically diverse. They’re also fairly young — the median age for Trump’s appellate judges at confirmation is 47 — so given that the median retirement age for appellate judges is 67, these appointees could end up serving for decades to come. And even though Democrats now maintain narrow control of the Senate, putting President Biden in a much better position to make his own stamp on the judiciary than if Republicans still held the majority, Trump’s effect on the courts could be difficult to undo.

Federal judges have long been unrepresentative of the population they serve. But over the past few decades, presidents of both parties have made concerted efforts to nominate a more diverse slate of judges, with each president steadily building on the work of the last chief executive of his party.

That is, until Trump.

As the chart below shows, only around 16 percent of Trump’s appointees to the federal district and appellate courts aren’t white. That’s slightly lower than the share of Bush’s nonwhite appointees (18 percent) and a whopping 19 percentage points lower than the share of Obama’s nonwhite appointees (36 percent), according to data from the Federal Judicial Center, a research-oriented arm of the federal courts that collects biographical information for federal judges, including their race, ethnicity and gender.

Trump did appoint a higher share of Asian American judges than any other past president except Obama. But, overall, Trump’s appointees are largely white. That record is in many ways a throwback to the 1980s, when only a tiny proportion of judges were racial or ethnic minorities. The implications of this are far-reaching, however, for the people who appear in court before these judges: Research suggests that a whiter, more heavily male judiciary is likely to be less sympathetic to people of color and women on legal issues related to race and gender.

Zoom in on the race and ethnicity of Trump’s judicial picks in the chart below and you can see just how white they are. Only 4 percent of Trump’s appointees are Black (compared with 2 percent of Ronald Reagan’s appointees and 6 percent of George H.W. Bush’s), and 4 percent of Trump’s appointees are Hispanic (right around where Reagan and G.H.W. Bush’s appointees landed).

There is a little more gender diversity among Trump’s appointees, though: About one-quarter (24 percent) of the judges he’s named to the bench are women, similar to the share of G.W. Bush’s appointees (22 percent). However, this is still significantly lower than the share of female judges confirmed under Obama (42 percent).

A heavily white judiciary isn’t just a symbolic statement either. Several scholars who study the courts told FiveThirtyEight that a lack of diversity among judges can have a serious impact on how the courts are viewed. According to Princeton professor John Kastellec, having more nonwhite judges boosts confidence in the courts, which is not a trivial thing considering the federal judiciary is an unelected branch of government and must rely on public goodwill to ensure its decisions are respected and carried out.

There’s also evidence that having more racial and gender diversity among federal judges actually influences the kinds of decisions that are made. This dynamic tends to emerge in cases involving race or gender issues — like affirmative action, voting rights, or employment discrimination — which might not make up the bulk of any given court’s docket but can still be consequential. In one study, for instance, Kastellec found that in cases related to affirmative action, the presence of a single randomly assigned Black judge on a three-judge appeals court panel1 resulted in a more liberal outcome, independent of the judges’ political ideology. In fact, Kastellec told us, “the effect of adding one Black judge was greater than the effect of adding two Democratic white judges.”

Christina Boyd, a political science professor at the University of Georgia, has found similar effects for race in cases involving affirmative action and voting rights at the district court level. Female judges were also more likely, according to Boyd’s research, to side with plaintiffs in sex discrimination and sexual harassment cases, and there have been similar findings at the appellate level. “It makes a concrete difference when the judiciary isn’t just monolithically composed of white, male judges with similar backgrounds,” Boyd said. “It’s not an effect we see in every case, but it’s one that we see in cases where the judges bring unique information and experiences to their roles, perspectives that white men don’t necessarily have.”

One big reason that Trump’s picks tended to skew so heavily white and male, though, was that he and then-Senate Majority Leader Mitch McConnell prioritized appointing a raft of reliable ideological conservatives above all else. That pipeline is pretty limiting. “If you’re talking about potential Republican judges, the bench or the farm team, if you will, is pretty overwhelmingly white,” Kastellec said. And Trump’s nominees have certainly been very conservative. In fact, an analysis of the Judicial Common Space scores, a commonly used metric of appellate court ideology, shows that Trump’s appointees to the circuit courts are more uniformly conservative than any of his recent Republican predecessors’.

That shift is staggering, but it isn’t entirely due to Trump. It’s also the product of decades of political polarization and acrimony surrounding judicial appointments, which culminated in the Democrats’ 2013 decision to change Senate rules to end the 60-vote requirement for an up-or-down vote on a lower-court nominee. Then Senate Republicans took this one step further when they won full control of the government in 2017 and eliminated the tradition allowing senators to veto appellate court nominees from their home states, regardless of their party or the president’s party. This essentially removed the need for much of the compromising and deal-making that had happened behind the scenes in the past, according to Sarah Binder, a political science professor at George Washington University who has studied the judicial confirmation process. “It basically opened the floodgates for Republicans to nominate and confirm a steady stream of exceedingly conservative and exceedingly young judges — people who would have been very unlikely to make it through the process in the past,” Binder said.

As a result, after four years, the balance of power on several pivotal appeals courts has changed in noteworthy ways. For instance, Trump has now appointed five of the 13 active judges on the 2nd Circuit Court of Appeals, a traditionally left-leaning circuit court based in New York City that covers New York, Connecticut and Vermont.2 And while some courts, like the 1st Circuit Court of Appeals, remain dominated by liberals, Trump made inroads in another historically left-leaning circuit — the West Coast-based 9th Circuit — appointing 10 of the 29 active judges on the court, which has moved the median to the right and substantially raised the odds of drawing a panel dominated by conservative judges.

“Presidents can really have an impact if they can remake a specific, powerful circuit,” said Chad Westerland, a political science professor at the University of Arizona and one of the creators of the JCS scores. “That’s what Trump has come close to doing with the 2nd Circuit. And because his appointees are so young, the impact could be with us for a very long time.” (Trump’s appointees also shifted the balance of power to the right on the 3rd, 7th, and 11th circuits.)

Admittedly, serving only a single term has limited some of Trump’s successes in the courts. Westerland pointed out, for instance, that while Trump was able to appoint nearly as many appellate judges in four years as Obama did in eight, Trump flipped fewer circuit court seats. Only a third of his appointments were to seats previously held by judges named by Democrats, whereas nearly half of Obama’s appointments were to seats previously filled by Republicans. “One of Trump’s biggest impacts, ironically, was to somewhat erode George W. Bush’s legacy in the courts by replacing a lot of his appellate judges,” Westerland said. (In fact, 34 percent of Trump-appointed appellate judges took seats that had been vacated by G.W. Bush appointees.) Westerland did acknowledge, though, that because of their extreme conservatism, Trump’s replacements could still push the courts to the right — particularly in blue states where Democratic senators used to have more influence over who was nominated.

In many ways, Trump’s success in the courts could be a model for future presidents who want to leave their own judicial legacies. But the reality is it will be hard for Biden to replicate what Trump has done. For one thing, Trump came in with a significant number of vacancies to fill, thanks to Senate Republicans’ broad-scale refusal to consider Obama’s judicial nominees in the last two years of his presidency. Biden, on the other hand, has far fewer judges to appoint immediately.

Biden might not have to wait long to start making consequential appointments, however. For starters, if Judge Merrick Garland is confirmed as attorney general, Biden will be able to nominate Garland’s replacement to the D.C. Circuit Court of Appeals. What’s more, according to our analysis, 18 percent of currently active appellate judges and 9 percent of currently active district court judges were appointed by Clinton and are eligible to take senior status, and 7 percent of currently active appellate judges and 4 percent of currently active district court judges appointed by Obama could do the same, which means Biden could quickly end up with more than the 49 spots he currently has to fill.3 Biden could also have the opportunity to name a new Supreme Court justice soon, as pressure is likely to mount on Stephen Breyer, a Clinton appointee who’s now 82, to step down so he can be replaced by a younger, liberal justice, who, if Biden upholds his campaign pledge, will almost certainly be a Black woman.

Not all the Democratic-appointed judges who are eligible to retire are guaranteed to do so, though. And while replacing a slew of left-leaning judges would shore up liberal majorities on some appellate courts and give Biden an opportunity to inject more diversity into the federal judiciary, it won’t undo the overall conservative shift that occurred under Trump. Biden will also likely struggle to appoint judges who are as ideologically extreme as Trump’s, because the Democrats’ control over the Senate is razor-thin and moderate senators may push for more middle-of-the-road judicial choices. “I think the Democrats will have to stray away from ideologically extreme nominees in order to get the votes of senators in the center,” Boyd said.

The end result is that the judiciary’s conservative tilt is likely to persist through the first few years of Biden’s presidency, even if it gets somewhat more diverse — which could be an enduring thorn in Biden’s side, particularly as it pertains to his administration’s ability to make aggressive changes through executive orders or regulations.

And on a day-to-day basis, Trump’s transformation of the judiciary will, of course, make a big difference for the people whose cases filter through the federal court system over the unfolding years or decades, with potentially significant consequences for criminal sentences, the fate of voting rights protections, and the success of employment discrimination lawsuits.

“There’s so much focus on the Supreme Court, and that’s for good reason, but I think in the process we forget that in a year when the Supreme Court takes maybe 60 or 80 cases, lower court judges are making tens of thousands of decisions that really, really matter for litigants,” Westerland said. “That impact might be hard to quantify and track, but it’s very real.”

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How Has The Radical Right Evolved Under Trump?

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.

sarahf (Sarah Frostenson, politics editor): Last Wednesday, the U.S. Capitol was attacked by a mob of President Trump’s supporters, many of whom had very explicit and not so explicit ties to right-wing extremism in the U.S. There are reports now, too, that there could be subsequent attacks in state capitals this weekend. President Trump’s time in office has undoubtedly had a mainstreaming effect on right-wing extremism, too, with as many as 20 percent of Americans saying they supported the rioters. But as we also know, much of this predates Trump, too. Right-wing extremism has a long, sordid history in the U.S.

The big question I want to ask all of you today is twofold: First, how did we get here, and second, where do we go from here?

Let’s start by unpacking how right-wing extremism has changed in the Trump presidency. How has it?

ameliatd (Amelia Thomson-DeVeaux, senior writer): Well, the first and most obvious thing is that Trump has spoken directly to right-wing extremists. That is to say, using their language, condoning previous armed protests at government buildings and explicitly calling on them to support and protect him. And that, probably unsurprisingly, has emboldened right-wing extremists and made their extremism seem — well, less extreme.

That goes for a wide array of extremists in the U.S., too. I’m thinking, of course, about Trump’s comment after the white supremacist violence in Charlottesville, Virginia, when he said there were “very fine people on both sides.” But Trump has also encouraged white Christian nationalists, anti-government extremists and other groups and individuals that I certainly never thought I’d hear a president expressing sympathy or support for.

jennifer.chudy (Jennifer Chudy, political science professor at Wellesley College): Absolutely, Amelia. And while the actual extremists may represent a small group of the public, the share of Republicans who support their behavior, whether explicitly or implicitly, is not as small. This is, in part, due to mainstream political institutions — like the Republican Party, with Trump at its helm — helping make their mission and behavior seem legitimate.

maggie.koerth (Maggie Koerth, senior science writer): I’ve been talking to experts about this all week, and I think it’s really interesting how even the academics who study this stuff are kind of arguing over the role class plays in it. People like Christian Davenport at the University of Michigan have argued that we should understand that all of this is happening in the context of decades of growing income inequality and political stagnation. In other words, he contends that there are legitimate reasons to be angry at and mistrust the government. But it also seems like this crowd was not even close to being uniformly working class and probably contained people from a range of different backgrounds. And that’s why I liked one of the points Joseph Uscinski at the University of Miami made: We might be seeing a coalescing of two groups: the people who have been actually hurt by that inequality and are angry about it AND the people who are doing pretty well but who feel like somebody might come and take that away. And, of course, both those positions can dovetail very easily into racial animus and white supremacy.

ameliatd: That’s interesting, Maggie. As you alluded to, though, it’s important to be clear that economic anxiety — which was used in the aftermath of Trump’s election to explain why so many Americans voted for a candidate who framed much of his candidacy around animus toward nonwhite people — doesn’t mean that racism or white supremacy isn’t a driving force here, too.

Part of what’s so complex about the mob that attacked the Capitol is that it was a bunch of different people, with somewhat disparate ideologies and goals, united under the “stop the steal” mantra. But underlying a lot of that, even people’s anger over economic inequality or mistrust in institutions, is the fundamental idea that white status and power are being threatened.

jennifer.chudy: There is also just a lot of evidence in political science that racial attitudes are associated with emotions like anger. Two great books, one by Antoine Banks of the University of Maryland and the other by Davin Phoenix of the University of California, Irvine, consider this point in depth. Insofar as right-wing extremists express anger at the system (in contrast to fear or disgust), their anger appears more likely to be motivated by racial grievances than by economic ones.

Additionally, the Republican Party’s base has, for years now, become more racially homogeneous, in part because of the party providing a welcome home to white grievances. But some have argued that this has also been exacerbated by the Democratic Party speaking more explicitly about racial inequality in the U.S., something that wasn’t the case in the 1990s. Regardless, a more racially homogeneous base can make a party’s members more receptive to this type of extremist behavior.

We also can’t underestimate the role that COVID-19 plays here. As Maggie and Amelia suggested in their article from this summer on militias and the coronavirus, many folks are at home and glued to their computers in ways that facilitate this type of organizing. They can burrow themselves into online communities of like-minded folks which may intensify their attitudes and lead to extreme behavior.

Kaleigh: (Kaleigh Rogers, tech and politics reporter): Polling has shown that ideas that previously had been considered extreme, like using violence if your party loses an election, or supporting authoritarian ideas, have definitely become more mainstream.

This is partly due to Trump’s own rhetoric, but also due to the effects of online communities where far-right extremists and white nationalists mingle with more moderate Trump supporters, effectively radicalizing some of them over time.

What’s interesting to me about all of these different factions, though, is there is actually a lot of division among these groups: Many members of the Proud Boys aren’t fans of the QAnon conspiracy, for instance. And a lot of white nationalists don’t like Trump, but they still end up uniting against a perceived common enemy. That’s why you saw people in the mob at the Capitol waving MAGA flags alongside people with clear Nazi symbolism. They are not all white nationalists, but they’re willing to march beside them because they think they’re on the same side.

But in the aftermath of the Jan. 6 attack, those divisions are becoming more stark in these online communities. I’m seeing a lot of infighting over whether planned marches are a good idea, whether they are “false flag” events or traps or whether they should be armed. There just seems to be this heightened anxiety as they draw closer to an inevitable line that they can’t come back from: Biden’s inauguration.

sarahf: That’s a super important point, Kaleigh, on how different extremist groups have rallied behind this. But given how much Trump has directly spoken to right-wing extremists, as Amelia mentioned up top, can we drill in on the violence, as wellIt’s not just that different factions have united or that these views have mainstreamed under Trump, but also that there’s been an actual uptick in violence, too, right?

ameliatd: One thing Maggie and I heard from experts on the modern militia movement is that these groups’ activity levels depend on the political context. The uptick in violence under Trump is real, but it’s not something that’s only happened under Trump. There was a surge in militia activity early in Obama’s presidency, too, for example.

maggie.koerth: Very much so, Amelia. The reality is that the right-wing extremism we’re seeing now is a symptom of long-running trends in American society, including white resentment and racial animus. And on top of that, you have these trends interacting with partisan polarization, which means the political left and right (which used to have fairly similar levels of white racial resentment) began to diverge on measures of racial resentment in the late 1980s and now differ greatly.

Kaleigh: Exactly, Maggie. That’s also why the FBI and other experts are particularly concerned about planned militia marches ahead of the inauguration. These groups tend to be much more organized and deliberate in their actions than the mob we saw last week. And because of that, they’re even more dangerous.

ameliatd: Right, so this violence isn’t new. But I do think it’s fair to say that Trump has raised the stakes so dramatically for right-wing extremists that we’d see a throng of them storming the Capitol. A lot of them see him as their guy in the White House!

So when he says, look, this election is being stolen from me, and you’ve got to do something about it, they listen.

jennifer.chudy: That’s true, Amelia, but work in political science shows just how much of this change was afoot prior to Trump’s election. Some tie it to Hillary Clinton talking too much about race during the 2016 election — they argue that this drove away some white voters who had previously voted Democratic (and could do so in 2008 and ‘12 because Obama, despite being Black, did not mention race much during his candidacy). But Clare Malone’s article for FiveThirtyEight on how Republicans have spent decades prioritizing white people’s interests does a great job of tracing these roots even further back.

maggie.koerth: Yeah, I’m really leery of the tendency I’ve seen in the media to act like this is something that started with Trump, or even that started post-Obama. Most of the experts I’ve spoken with have framed this more like … Trump’s escalation of these dangerous trends is a symptom of the trends. We’re talking about a lot of indicators that have been going in this direction since at least the 1980s.

jennifer.chudy: True, Maggie, from the beginning of the Republic, I might argue! But one reason the tie to Trump and Obama is so interesting is that Trump’s baseless claims around Obama’s birth certificate correspond with his debut on the national political stage. So even as there is a long thread of white supremacy throughout American history that has facilitated Trump’s ascension, there may also be a more proximate connection to recent elections, too.

ameliatd: Ashley Jardina, a political scientist at Duke University, has done some really compelling research on white identity politics — specifically how the country’s diversification has created a kind of “white awareness” among white Americans who are essentially afraid of losing their cultural status and power.

This is a complicated force — she’s clear that it’s not exactly the same thing as racial prejudice — but the result is that many white people have a sense that the hierarchy in which they’ve been privileged is being upset, and they want things to return to the old status quo, which of course was racist. And the Republican Party has been tapping into that sense of fear for a while. Trump’s departure was that he started doing it much more explicitly than previous Republican politicians had mostly done.

So yes, Maggie, you’re absolutely right that it’s not like Trump came on the scene and suddenly right-wing extremism or white supremacist violence became a part of our mjui78 political landscape. Or partisan hatred, for that matter! FiveThirtyEight contributor Lee Drutman has written about the effect of political polarization and how it’s created intense loathing of the other party, and he’s clear that it’s been a long time coming. It didn’t just emerge out of nowhere in 2016, as you can see in the chart below.

On the other hand, though, it’s hard to imagine the events of last week without four years of Trump fanning the flames.

maggie.koerth: Right, Amelia. Trump is a symptom AND he’s making it worse. At the same time.

Kaleigh: What you said, Amelia, also speaks to just how many Trump supporters don’t consider themselves racist and find it insulting to be called so. A lot of Trump supporters think Democrats are obsessed with race and identity politics, and think racism isn’t as systemic of a problem as it is. There are also, of course, nonwhite Trump supporters, which complicates the image that only white working-class Americans feel threatened by efforts to create racial equality.

ameliatd: That’s right, Kaleigh. We haven’t talked about the protests against police brutality and misconduct this summer, but I think that’s a big factor here as well — politicians like Biden saying that we have to deal with systemic racism is itself threatening to a lot of people.

sarahf: It does seem as if we’re in this gray zone, where so much of this predates Trump, and yet Trump has activated underlying sentiments that were perhaps dormant for at least a little while. Any child of the 1990s remembers, for instance, the Oklahoma City bombing and Timothy McVeigh, who held a number of extreme, anti-government views, or the deadly standoff between federal law enforcement officials and right-wing fundamentalists at Ruby Ridge.

And as Jennifer pointed out with Malone’s piece, the thread runs even further back. It’s almost as if it’s always been part of the U.S. but maybe not as omnipresent. That’s also possibly naive, but I’m curious to hear where you all think we go from here — in how does President Biden start to move the U.S. forward?

maggie.koerth: Honestly, that’s the scary part for me, Sarah. Because I don’t really think he can. Everything we know about how you change deeply held beliefs that have to do with identity suggests that the appeals of outsiders doesn’t work.

jennifer.chudy: Yes — one would think that a common formidable challenge, like COVID-19, would help unite different political factions. But if you look at the last few months, that’s not what we see.

maggie.koerth: Even Republican elites who they push back on this stuff get branded as apostates.

ameliatd: And there’s evidence that when Republican elites are perceived as apostates, they may also become targets for violence.

Kaleigh: But we also know that deplatforming agitators helps reduce the spread of their ideas and how much people are exposed to/talk about them. Losing the presidency is kind of the ultimate deplatforming, no?

jennifer.chudy: Is it deplatforming, though? Or is it just moving the platform to a different setting? I don’t know the ins and outs of the technology, but it seems like the message has become dispersed but maybe not extinguished.

sarahf: That’s a good point, Jennifer, and something I think Kaleigh hits on in her article — that is, this question of … was it too little, too late?

maggie.koerth: I think it has been a deplatforming, Jennifer. If for no other reason than it’s removed Trump’s ability to viscerally respond to millions of people immediately. And you see some really big differences between the things he said on Twitter about these extremists last week and the statements he’s made this week, which have had to go through other people.

It’s not so much taken away from his ability to speak, but it does seem to have affected his ability to speak without somebody thinking about the consequences first.

ameliatd: There is an argument that Trump’s presidency and the violence he’s spurred is making the underlying problems impossible to ignore. I’m not sure whether that makes it easier for Biden to deal with them, but it does make it harder for him to just say, ‘Okay, let’s move past this.’

Lilliana Mason, a professor at the University of Maryland who’s written extensively about partisan discord and political violence, told me in a recent interview that while someone like Biden shouldn’t be afraid to push back against Trump or his followers because it will lead to more violence (an argument against impeachment that’s circulated in the past week), she does think pushing back against Trump and his followers probably will result in more violence.

So that leaves us, and Biden, in a pretty scary place.

Republicans are in a bind, too. Electorally, many of them depend on a system where certain voters — white voters, rural voters, etc. — do have more power. So yeah, Sarah, that doesn’t make me especially optimistic about a big Republican elite turnaround on Trumpism, separate from the question of whether that would actually diffuse some of these tensions.

sarahf: One silver lining in all this is we don’t yet know the full extent to which Trump and Trumpism has taken a hit. That is, plenty of Republicans still support him, but his approval rating has taken a pretty big hit, the biggest since his first few months in office in 2017 — that’s atypical for a president on his way out the door. More Republicans also support impeachment of Trump this time around.

There is a radicalized element here in American politics — and as you’ve all said — it isn’t going anywhere anytime soon, but I do wonder if we still don’t fully understand where this goes next.

Kaleigh: What gives me some peace in this time is looking back at history. America has dealt with far-right extremists before. It has dealt with violent insurrectionists before. We have continued, however slowly, to make progress. Sometimes the only way out is through.

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Politics Podcast: What A Second Impeachment Means

By Galen Druke and Perry Bacon Jr. and Galen Druke and Perry Bacon Jr.
More: Apple Podcasts |>ESPN App |
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On Wednesday, the U.S. House of Representatives voted 232-197 to impeach President Trump. Ten Republicans broke with their caucus to vote with the Democrats this time — a more bipartisan vote than Trump’s first impeachment but still representing just a sliver of the GOP. In this installment of the FiveThirtyEight Politics podcast, HuffPost polling editor Ariel Edwards-Levy joined Galen Druke and Perry Bacon Jr. to discuss why the votes broke down the way they did, what the different camps are in the GOP and what will happen next.

You can listen to the episode by clicking the “play” button in the audio player above or by downloading it in iTunes, the ESPN App or your favorite podcast platform. If you are new to podcasts, learn how to listen

The FiveThirtyEight Politics podcast is recorded Mondays and Thursdays. Help new listeners discover the show by leaving us a rating and review on iTunes. Have a comment, question or suggestion for “good polling vs. bad polling”? Get in touch by email, on Twitter or in the comments.

[Related: Trump Has Been Rebuked Like No Other President — But Really Only By Democrats]

Why Trump’s 2nd impeachment will be a political test for both parties

Why police aggression is far more pronounced against left-leaning protesters

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Since The Capitol Attack, Trump’s Approval Score Has actually Plummeted At A Record Rate

Welcome to Pollapalooza, our weekly polling roundup.

Poll(s) of the week

In the wake of the Jan. 6 assault on the U.S. Capitol, public opinion is souring quickly on President Trump as he enters the final days of his term. Not only do a majority of Americans blame him for the riot at the Capitol and favor removing him from office, but his job approval rating has fallen faster in recent days than at any point in his presidency.

According to FiveThirtyEight’s approval tracker,1 39.4 percent of Americans approve of the job Trump is doing as president, while 56.3 percent disapprove (a net approval rating of -16.8 percentage points). On Jan. 6, the day of the Capitol attack, Trump’s net approval rating stood at -10.3 points, which means his net approval rating has fallen 6.5 points in just eight days.

It turns out that’s the biggest drop in Trump’s net approval that our tracker has ever recorded. To put this into perspective, there have been only two other times when Trump’s net approval rating fell by at least 5 points over an eight-day period: once in February 2017, after he issued executive orders to begin construction of a wall along the U.S.-Mexico border and to suspend the refugee program and prohibit entry for visitors from seven predominantly Muslim countries,2 and then again in March 2017, after Republicans began their legislative efforts to repeal the Affordable Care Act.3 But the lack of sharp drops in Trump’s rating outside of these two episodes isn’t all that stunning, considering that both positive and negative opinions of him are largely baked in.

But now Trump’s tumbling approval rating suggests he is losing some support among his party base and swing voters (his approval rating among Democrats was already abysmal). Take Morning Consult/Politico’s latest survey, which found Trump’s net approval at +51 points among Republicans and -35 points among independents; these numbers might not sound that bad, especially among Republicans, but they were down 15 points among both Republicans and independents from mid-December. Quinnipiac University’s new poll also put Trump’s net approval among Republicans at +51, a decrease from +80 in early December, while independents fell to -37 from -15 in the same period. Additionally, a new survey from Marist College on behalf of PBS NewsHour found Trump at +56 among Republicans and -20 among independents, both down from +83 and -14, respectively, in Marist’s early December poll.

There’s also evidence of Trump’s image suffering in polling on impeachment and whether he should be removed from office. Back during Trump’s first impeachment in late 2019 and early 2020, net support for his removal never grew beyond +4. But now net support for removal stands at about +11, with about 53 percent of Americans supporting it and 42 percent opposing it. And while it’s still true that a majority of Republicans do not support Trump’s impeachment, the same pattern we observed in Trump’s approval rating (a dip among Republicans) is true here as well. The first time Trump was impeached, less than 10 percent of Republicans backed removing him from office, compared with 15 percent now. Among independents, the magnitude of the shift is similar, up from the low 40 percent range to 48 percent. And, once again, Democrats overwhelmingly back removal.

As Trump continues to falter, it’s worth noting just how atypical this trend is for a president in his last couple of months in office. Outgoing presidents often get at least a little bump in approval, regardless of whether they were popular or unpopular. For instance, President Barack Obama’s net approval rating rose from about +8 after the 2016 election to almost +20 when Trump took office, while President George W. Bush’s net approval rating rose from -43 in November 2008 to about -30 going into Obama’s inauguration in January 2009. Even President George H.W. Bush, the last incumbent president to lose reelection before Trump, saw his net approval go from -23 after the election to +18 by the time he left the White House. It’s hard to imagine such a huge shift in this more polarized era, but Trump’s net approval has definitely declined more than his predecessors’.

While commentators have often called Trump “Teflon Don” because few of his actions seem to stick and perceptibly alter public opinion, this has its limits. Inciting an attack on the American government is pretty damaging: It has caused a rapid decline in his approval rating, prompted more than half of Americans to support his removal from office, and even impelled 10 House Republicans to back his impeachment — the most members of a president’s party to ever do so.

Other polling bites

Americans are understandably concerned about the direction of the country given last week’s news. To that point, Morning Consult found that 81 percent felt the country was on the wrong track, while just 19 percent thought the country was headed in the right direction. These figures mark the most bearish responses to this question in Morning Consult’s polling over Trump’s entire presidency.White identity and grievance politics played a major role in the attack on the Capitol, and 69 percent Americans said they view white supremacists as a very serious (52 percent) or somewhat serious (17 percent) problem, according to new polling from YouGov. Just 21 percent said they were not a very serious problem or not a problem at all. However, broken down by party, Republicans were much more equivocal, with 44 percent calling white supremacists a problem and 49 percent saying they aren’t. And despite the severity of last week’s events, these numbers — overall and by party — are mostly unchanged from those in an August 2019 YouGov survey.Gallup’s annual report on Americans’ ideological views found that more people identified as conservative and moderate than liberal in 2020, in keeping with findings from previous years. According to the pollster, 36 percent described themselves as conservative, 35 percent as moderate and 25 percent as liberal, numbers that were largely unchanged from 2019. Overall, Republicans were more likely to be ideologically similar, with 75 percent identifying as conservative, whereas Democrats were a bit more mixed, as only 51 percent identified as liberal.Americans continue to experience a lot of online harassment, according to a new report from the Pew Research Center. Forty-one percent of U.S. adults said they’ve been attacked in some way, which was identical to Pew’s 2017 polling, but this time there was a reported increase in harassment across six specific types of abuse. Of the two less serious types, almost a third of Americans reported offensive name-calling and a quarter reported attempts at “purposeful embarrassment.” Among the four more serious types, about one in 10 reported some sort of stalking, sustained harassment or sexual harassment, while 14 percent said they’d received physical threats.As COVID-19 vaccination ramps up, Gallup’s latest polling found that 65 percent of Americans would agree to be vaccinated if they were offered an FDA-approved vaccine at no cost, compared with 35 percent who wouldn’t. However, there was a pretty big partisan split over taking the vaccine: 83 percent of Democrats agreed to be vaccinated while only 45 percent of Republicans and 59 percent of independents said the same. Since Gallup began polling on this question in July 2020, Democrats have been far more likely to say they’d accept a vaccination, save for a period in September 2020 when Democratic receptiveness fell sharply, possibly in response to Trump’s claims that a vaccine could be ready by Election Day.Trump’s incendiary use of social media led Twitter and other social media companies to suspend him from their platforms. Morning Consult polling found that 39 percent of Americans felt that approach was “exactly right,” while 33 percent felt it went too far and 28 percent felt it didn’t go far enough. There was a large partisan split over support for these moves, too, with 69 percent of Republicans saying the suspensions went too far, and 43 percent of Democrats saying they didn’t think they went far enough. And even though half of all respondents thought that Trump’s social media accounts should have been suspended earlier, only 15 percent of Republicans agreed compared with 77 percent of Democrats.

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Why Trump’s 2nd Impeachment Will Be A Political Test For Both Republicans And Democrats

In this episode of the FiveThirtyEight Politics podcast, the crew unpacks some of the factors that contributed to a mob of Trump supporters storming the U.S. Capitol. They also discuss the calculations being made by Democrats and Republicans about how to hold President Trump legally and/or politically accountable for the attack.

[Related: Why 10 Republicans Voted For Impeachment]

Why 10 Republicans voted for impeachment | FiveThirtyEight Politics Podcast

What Trumpism has cost the GOP and the nation | FiveThirtyEight Politics Podcast

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Trump Has Actually Been Rebuked Like No Other President– However Really Only By Democrats.

Donald Trump has now been rebuked like no other president: He is the first-ever president to be impeached by the House of Representatives twice, and he is also the first-ever president to have the House call for his Cabinet and vice president to remove him from office.

In fact, there have been just four presidential impeachments in American history — and Trump now represents half of that total. The actual words used in the article of impeachment adopted by the House on Wednesday were both incredibly damning and also an accurate portrayal of the president’s conduct since November’s election. Trump, according to the House, was “inciting violence against the Government of the United States,” “threatened the integrity of the democratic system,” and “imperiled a coequal branch of Government.”

Why 10 Republicans voted for impeachment | FiveThirtyEight Politics Podcast

But the power of the rebukes of Trump is somewhat blunted by the fact that they have been largely partisan. No House Republican voted for Trump’s impeachment in 2019 over the pressure he exerted on the Ukrainian government to investigate the Bidens, and only one Republican senator, Mitt Romney of Utah, supported removing Trump from office. In the wake of the attack on the Capitol by Trump supporters, only one Republican House member, Adam Kinzinger of Illinois, supported invoking the 25th Amendment to have Trump removed from office on Tuesday, and today only nine House Republicans joined Kinzinger in supporting impeachment.

[Related: Do Americans Support Removing Trump From Office?]

This strong Republican loyalty to the president is a very important and historic dynamic.

It’s important not to overstate the size of the opposition to Trump in the GOP simply because it includes some high-profile members of the party. Romney, the party’s one-time presidential nominee, and Rep. Liz Cheney, both the No. 3 Republican in the party’s leadership and the daughter of a Republican vice president, have cast Trump as a terrible president and supported his removal from office. A third major Republican, Senate Majority Leader Mitch McConnell, has allowed his allies to leak to the press that he believes Trump has committed impeachable offenses. A few other Republicans in the Senate, most notably Susan Collins of Maine, Lisa Murkowski of Alaska, and Ben Sasse of Nebraska, have suggested that they might back Trump’s removal from office or a post-presidency conviction of the impeachment charge, but it’s still unclear if they would actually do so.

But the overwhelming majority of Republicans in the House still voted against impeachment even after the invasion of the Capitol that put their lives at risk. McConnell is also not pushing to have a quick Senate vote to remove Trump from office, because it’s likely that most Republican senators don’t want to deal with the issue, not wanting to cast a vote in favor of Trump’s actions but also wary of trying to force him from office. Pence and Trump’s Cabinet opposed the idea of removing him via the 25th Amendment. And polls suggest that a clear majority of Republican voters don’t want Trump impeached or removed from office.

If there is a battle going on for control of the Republican Party, at least right now, those allied with Trump and Trumpism are winning — and it’s not particularly close. The Republican Party has a bloc of people like Cheney and Sasse that is clearly uncomfortable with Trump and Trumpism and a group that strongly embraces Trumpism, such as Rep. Jim Jordan of Ohio and others in the House Freedom Caucus.

But a lot of Republicans in Congress aren’t necessarily all that committed to Trumpism or all that firmly against it. Rather, they are politicians who are trying to land in the right spot to keep their jobs and position themselves for runs for higher office. And the impeachment votes from Republicans on Capitol Hill tell a clear story: They think the best bet for a Republican politician, at least right now, is to stay aligned with Trump, and that the party base is more connected to Trump than to traditional democratic norms and values or the GOP of the past, led by people like former Vice President Dick Cheney and Romney. In fact, the person who might lose their job through this process is not Trump but Liz Cheney, as Jordan and his allies are trying to have her removed from Republican leadership because of her impeachment vote.

[Related: Why 10 Republicans Voted For Impeachment]

Finally, despite this vote, it seems almost certain that Trump will get to finish out his term, something that didn’t seem so clear a week ago. This, too, is basically a story of the Republican Party sticking with Trump — the Cabinet was unwilling to remove him, and so were GOP senators.

Put all this together and you have a complicated story of the end of Trump’s presidency. The House of Representatives has rebuked him like it has no other president — passing two separate provisions (the 25th Amendment proposal, then impeachment) in a rush to get him out of office, even though he had only two weeks left in his presidency and had already been impeached once. But while it’s officially the U.S. House that rebuked Trump, it was essentially only Democrats who rebuked him. Trump will now get to finish out his term and avoid a complete repudiation of his presidency, with a lot of votes in opposition to him from both parties. So right now, it’s not clear whether Trump will be remembered as a historically terrible president — or just a historically terrible president according to Democrats.

Why Trump’s 2nd impeachment will be a political test for both parties

What Your House Vote On The 25th Amendment States About Impeachment

Virtually all congressional Democrats and even some Republicans have condemned President Trump’s incitement of the insurrection at the Capitol. Virtually all congressional Democrats and even some Republicans appear to want Trump out of office as soon as possible. The U.S. House of Representative seems likely, this week, to impeach Trump for a second time, with at least five Republicans likely to vote in favor of it. Allies of Senate Majority Leader Mitch McConnell, as first reported by the New York Times and then confirmed by ABC News, say McConnell believes that Trump committed impeachable offenses and supports Democrats moving forward on impeachment.

Where does all that leave us? It’s complicated. It still seems fairly likely that Trump will remain in office until Jan. 20, with the House impeaching Trump on a mostly party-line vote but the Senate not taking up impeachment before Jan. 20, when President-elect Joe Biden takes office. Still, we’ll have to wait to see how it all unfolds to know for sure. Either way, we do know that one big step in this process occurred on Tuesday night: The House adopted a resolution calling on Vice President Mike Pence and the remaining members of Trump’s Cabinet to invoke the 25th Amendment and remove Trump from the presidency.

This vote was historic — the House has voted to impeach three presidents (including Trump), but never before formally suggested that the president be removed by his Cabinet. At the same time, the vote has no real impact. Pence said in a letter to Pelosi released before the vote that he and the Cabinet will not try to force Trump from office via the 25th Amendment. So Tuesday’s vote was really only a prelude to a separate vote on Trump’s impeachment, which could come as soon as Wednesday. House Democrats have promised they will move to impeach Trump, for the second time, if the Cabinet does not remove him.

Tuesday night’s vote on the 25th Amendment resolution, while symbolic, does help us understand some dynamics within the two parties — particularly if you consider it alongside last week’s votes on whether to certify the results of the November election. Here are four things we’ve learned …

Most House Republicans are still strongly aligning with Trump.

Only 83 of the 204 House Republicans who participated in the vote opposed the effort last week to effectively disqualify the presidential votes in Arizona. Only 64 of the 202 House Republicans who participated in the vote opposed the effort to disqualify the electoral results in Pennsylvania. In other words, a clear majority of House Republicans voted to bar the presidential results from Arizona and Pennsylvania, joining with Trump’s effort to disqualify the votes of swing states where he narrowly lost. And these were votes held after Trump supporters attacked the U.S. Capitol.

On Tuesday night, the number of House Republicans who were willing to call for Trump to be pushed out of office was even lower — just one, Rep. Adam Kinzinger of Illinois, supported the resolution calling for Trump’s removal. There may be some Republicans who vote for impeachment but not the 25th Amendment resolution (more on that below). But it seems likely that the overwhelming majority of Republicans will oppose any effort to remove Trump from office, no matter the method.

The upcoming impeachment vote will be the fourth vote in the span of a week that is effectively a proxy for how loyal a House Republican is to Trump and strongly pro-Trump voters. And it appears that most House Republicans will take Trump’s side all four times despite an attack on the Capitol that was inspired in part by Trump’s words, resulted in the deaths of five people, and easily could have resulted in members of Congress and even Pence being killed.

It’s worth noting that the strong support for Trump among Republicans in the House may not be shared in the Senate. Only eight of the 51 Republicans in the Senate supported the efforts to contest the results in either Arizona, Pennsylvania or both states. Unlike McConnell, allies of Rep. Kevin McCarthy, the top Republican in the House, have not suggested that McCarthy is open to Trump’s impeachment. That said, it’s not clear that a lot of Senate Republicans support invoking the 25th Amendment or trying to impeach and remove Trump either. (More on that in a minute).

There was a big difference between affirming Biden’s victory and calling for Trump to be removed.

The 63 House Republican members who affirmed the electoral results in both Arizona and Pennsylvania were from across the ideological and geographic spectrum — some were fairly moderate members from more liberal-leaning areas, such as Rep. John Katko of New York, but some were also conservatives from more right-wing areas, most notably the No. 3 Republican in the party’s leadership, Liz Cheney of Wyoming.

But voting to remove Trump appears to be a bridge too far, even for these Republicans. Reps. Fred Upton of Michigan, Jaime Herrera Beutler of Washington, Katko and Cheney have indicated that they will support impeachment, even though they didn’t also back the 25th Amendment process like Kinzinger did. But overall, there is little indication that most of these 63 members will vote for impeachment.

Impeachment in the House doesn’t really need Republican votes, since Democrats are in the majority and they are likely to be universally behind impeachment. But this House sentiment may be an indication of things in the Senate too …

It’s not exactly clear what Senate Republicans will do.

McConnell, while floating the idea that he is frustrated with Trump, has also suggested that the Senate can’t really start an impeachment trial until Jan 19, according to a memo he sent to Republican senators that was obtained by the Washington Post. If the Senate really wanted to push out Trump immediately, I think they would figure out a way to do it. What’s more likely is that McConnell wants to publicly get out the message that he personally is mad at Trump but not necessarily require Republican senators to go on the record with a vote. Remember that McConnell just won a six-year term in 2020 and is 78 years old. He probably isn’t that worried about being cast as insuffienciently pro-Trump and losing a Republican primary in 2026 if he decided to run for another term at age 84. But younger Republican senators, those with presidential ambitions and/or those coming up for reelection next year may want to avoid a vote either defending Trump or removing him from office.

So it’s not clear McConnell would move towards a vote before Jan 20. There is not yet a clamoring of GOP senators urging the Senate to meet immediately after the House impeaches Trump, nor is it clear that there are anywhere close to the 18 GOP senators that would be needed to remove him from office. So unless something dramatically changes, in terms of the posture of GOP senators, Trump is likely to remain in office on Jan. 20

By the end of this month, with a 50-50 Senate and Vice President Kamala Harris as the tie-breaking vote, Senate Democratic Leader Charles Schumer will be the majority leader. There is little precedent for this, but some legal experts say that the Senate could, in a two-thirds vote, convict Trump of the impeachment charges, even if he is out of office. Then, with a simple majority, the Senate could vote to disqualify Trump from holding any office again. But I should emphasize: We have no idea if any of that will happen. With Trump out of office, would Democrats, particularly Biden, be eager to focus on the Democrats’ policy agenda, as opposed to trying to punish Trump? Would Republicans in the Senate go along with trying to convict Trump and disqualify him from running for office again? Would a disqualification of Trump from holding other offices stand up against legal challenges?

Democrats are rebuking Trump like no other president has been rebuked.

All of the 222 congressional Democrats who participated in the vote on Tuesday supported invoking the 25th Amendment. Impeachment is also likely to be a unanimous vote among Democrats. This is not surprising — in 2019, all but three of the 232 House Democrats backed Trump’s impeachment over his scheme to force the Ukranian government to investigate the Bidens. There has been some turnover in terms of members, but the overwhelming majority of House Democrats have already tried to force Trump out of office and probably feel comfortable casting such votes again, particularly in light of last week’s terrible incident at the Capitol.

Combining today’s 25th Amendment resolution with the 2019 impeachment, Democrats have ensured that Trump will have been rebuked by the House of Representatives in a way that no previous president has: Both impeached and urged to be removed from office by the president’s Cabinet. No president has been impeached in two separate instances (Andrew Johnson and Bill Clinton were impeached on multiple articles, but in the same series of House votes). House Democrats are almost certain to make Trump the first this week.