the national interest

Trump Is Making the Al Capone Tax-Evasion Defense Against Impeachment

President-elect Donald Trump on January 11, 2017, posing with fake manila folders, promising to turn over control of his business to his sons. Photo: Don Emmert/AFP via Getty Images

“The fact that they have long wanted to impeach the president suggests those Democrats view the Trump-Ukraine matter as just the latest, and perhaps the best, chance to get the president,” argues fiercely pro-Trump columnist Byron York today. “And that calls into question their good faith in claiming that, despite deep reluctance, they must impeach now — right this minute — because it is their solemn constitutional duty.”

York is echoing what has become, as the substantive defense of Trump’s behavior in the Ukraine extortion plot has disintegrated, perhaps the president’s central talking point. Trump has repeatedly cited, among other things, a January 20, 2017, Washington Post story headlined, “The campaign to impeach President Trump has begun.” Devin Nunes used almost every prepared speaking opportunity during the recent hearings to denounce what he called “a three-year-long operation by the Democrats, the corrupt media, and partisan bureaucrats to overturn the results of the 2016 presidential election.” Working from the premise that Democrats have been itching to impeach Trump since Day One, they conclude impeachment is merely a partisan revenge plot rather than a response to an alleged offense.

As a factual account of Democratic behavior, this is mostly wrong. The party’s decision-makers — the House leadership and the 40 or so most-vulnerable members who controlled its majority — all vocally opposed impeachment until this autumn. Before the Ukraine scandal, Nancy Pelosi and her majority-makers displayed no interest in impeachment and strongly pushed back against suggestions they undertake it. They gave no indication they had any intention to impeach Trump later, and showed every sign of preferring to run a campaign focusing on other Trump vulnerabilities (cutting health care, permitting more pollution, cutting taxes for the rich while raising them on the middle class) that gave Democrats a larger polling edge. They changed their position in response to revelations about Trump’s extortion of Ukraine for political gain.

And yet there is more than a little truth in the charge. Many progressives did support impeachment from the get-go, even if the party’s leadership did not. But the reason for this is not that poor, innocent Donald Trump has been the target of their smear campaign until they finally produced something to nail him on. It’s that Trump has in fact committed a lengthy series of impeachable offenses, and this one finally spurred the House to act.

The reason many Trump critics were contemplating impeachment even before he took office is that Trump supplied evidence of his unfitness for office on a near-daily basis. As a candidate, Trump said he would:

• open criminal investigations of his political opponents
• use his power to punish owners of independent media
encourage the military to commit war crimes
• continue operating a private business with undisclosed deals with clients both foreign and domestic who had business and foreign-policy interests with his administration
goad his supporters to commit violence

Trump ran as an authoritarian demagogue whose entire conception of the office he stood poised to occupy was at odds with the republican form of government. That Democrats did not immediately undertake impeachment proceedings against him shows they gave him the benefit of the doubt.

But rather than growing into the office, Trump has fulfilled the darkest fears about his character and his conduct. Trump has run through the authoritarian threats he made as if it were a to-do list. Retribution against owners of independent media? Check. Promoting the use of war crimes? Check. Collecting money from interested parties at home and abroad? Check. Inciting violence to intimidate critics? Check.

And Trump has compounded all the abuses of power he promised before taking office by committing new ones he hadn’t. He has exposed American intelligence to its enemies, either by communicating over easily breached channels (like a cell-phone call in Kiev) or simply spilling secret operational details to the Russians in the Oval Office. He demanded personal loyalty from his FBI director and then fired him for failing to quash an investigation. He engaged in a long series of acts that would be textbook obstruction of justice but for Robert Mueller’s decision that he couldn’t directly accuse Trump of a crime. He has smashed the delicate balance of power between the legislative and executive branches by refusing to accept any role for congressional oversight whatsoever. And he has promised pardons to his subordinates in advance if they break the law carrying out his agenda.

The definition of a high crime or misdemeanor meriting impeachment is completely subjective, but all these acts would qualify. Trump’s defenders may be right to suspect politics played a role in Congress’s calculations. But the political considerations operated in precisely the opposite direction than they imply. Politics did not dictate Trump’s impeachment this fall, it spared it before then.

It is difficult to say what made the decisive bloc of Democrats suddenly decide this offense merited impeachment where the others did not. It may be the brazenness of Trump undertaking a new foreign collusion scheme immediately after escaping punishment for his last one. It may be the unusually broad and clear evidence establishing his guilt, the fact even many Republicans have failed to offer any justification for his scheme, or the fact that it threatens the sanctity of the next election (and therefore undermines the case for leaving the matter to the voters).

Whatever the answer, the fact that some of Trump’s critics were contemplating impeachment for years before they settled on this charge hardly absolves him. The feds were looking to nail Al Capone for a long time before they finally prosecuted him for tax evasion. Capone, like Trump, had a knack for intimidating law enforcement, bribing witnesses, and withholding evidence. His crimes were something everybody knew but were difficult to prove. His punishment was both procedurally fair — Capone was as clearly guilty of tax evasion as Trump is of pressuring Ukraine to investigate his domestic rivals — yet frustratingly too narrow to capture the full breadth of his culpability. That discrepancy will challenge historians who study Trump’s criminal presidency. But it is truly odd to see it used as a case against impeaching him at all.

Trump Makes the Capone Tax-Evasion Defense vs. Impeachment