What Democrats Can Do After the Senate Acquits Trump

(Bloomberg Opinion) -- Here’s a message to Democrats and all patriots: Don’t give up when the Senate acquits Donald Trump. 

File suit right away to prevent him from going to any foreign government to fix the election. 

The House bill of impeachment makes clear that Trump used the power of his office — indeed, compromised his obligation to defend the country — when he held up aid to Ukraine to extract a partisan advantage in 2020. As federal citizens, we have a right under the First Amendment to a free and fair election, without the highest government officer of the land using corrupt means to help his re-election.

The lawsuit to stop Trump from continuing this course of action would not seek retroactive relief. This would not be a damages claim, but an order to stop him in the future.

A plaintiff in a lawsuit has a right to seek prospective injunctive relief to stop a pattern of corrupt activity from continuing. Any threat to interfere with rights under the First Amendment is usually “irreparable injury,” which justifies issuing an injunction.

To say the least, there is a pattern of conduct by Trump to justify such action.

Ever since the 1803 case of Marbury v. Madison, the federal courts have claimed an inherent equitable power to restrain violations of the Constitution. There is a controversy over whether the courts have the inherent power to award damages as well, but that would not be relevant in a suit to stop Trump from continuing the acts that led to his impeachment.

Nor does the case seek to enforce 52 U.S. Code 30121, which prohibits foreign governments from making contributions. It is arguably not the right of citizens to enforce that spending restriction. 

But the quid pro quo the president sought from Ukraine was not about money; it was for a much darker and more sinister way of assisting him in return for the release of U.S. military assistance, which had been allocated to help the country defend itself from Russia.

Trump is likely to try some such tactics again. In 2016 he said he would not accept the outcome of any election he did not win. He made an unprecedented and frivolous threat to imprison his rival if he won — something that even Vladimir Putin is too discreet to say. He also invited the Russians to hack the emails of his opponents. He can and should be imputed with knowledge — at least for civil purposes, unlike the criminal standard used by special counsel Robert Mueller — to show that he sought or would have accepted the assistance of the Russians in 2016.

So the case for an injunction — based on civil, not criminal law standards — is strong, even overwhelming. Apart from a pattern showing he is more than ready to act outside the law, there is Trump’s brazen defense of his shakedown of Ukraine — saying he’s not asking for a quid pro quo when it’s right there in black and white in the White House’s own doctored transcript. 

The objections to a claim for injunctive relief are feeble. It matters less, for example, that the impairment of the First Amendment right is small, when there is no legitimacy to the governmental act being challenged.

Let the president deny there was a quid pro quo? Fine, because this opens him up to discovery and a deposition. Let the president claim executive privilege? Also fine, because there is no executive privilege to engage in a criminal act. 

Nor would the “political question” doctrine bar relief, because of improper second-guessing of U.S. foreign policy. It’s not “foreign policy” if the president is shaking down a foreign leader to kick in to his re-election. Likewise, it is not a matter of “zoning policy” when a Chicago alderman wants a bribe to make a change.

The “political question” doctrine is a bar only if the Constitution were to commit the right to extortion and bribery to the exclusive discretion of the president. Well, it doesn’t.

In 1952, the Supreme Court enjoined President Harry Truman from seizing a steel mill despite a serious claim that it was a matter of national security. Trump’s squalid quid pro quo is a much easier case by comparison.

Impossible to supervise? No, the order would also bind those around Trump: If they looked the other way, they would be in contempt, too. This is a White House where we can count on leaks aplenty.

Nor do we have to look far for a plaintiff: All readers who are U.S. citizens entitled to vote have standing to bring an action protecting their right to participate in free and fair elections, without interference by foreign powers. It’s a representational injury — a right not to be a victim of election-type racketeering.

The attorneys general of the various states — California, New York and others — would have standing to protect the voting rights of their citizens. Indeed, they have a good record in suing Trump. The Democratic National Committee has associational standing to protect the party’s candidates running in the presidential primaries who may be affected, or the party’s eventual nominee.

As Chief Justice John Marshall might have told us, the federal courts have inherent equity power to stop a president from committing high crimes and misdemeanors that also violate our constitutional rights — even though Congress alone can remove him from office. The misconduct to be enjoined here is of a different kind from what Richard Nixon committed during Watergate. By the time of the Nixon impeachment hearing, he had already been re-elected. There was no danger posed from another Watergate break-in, or even another cover-up.

But the 2020 election is still to come, and when the Senate acquits him, Trump is free to commit yet another enormity like the shakedown of Ukraine. The impeachable offense could happen again and again.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Thomas Geoghegan is a labor lawyer in Chicago. He is the author of "Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement."

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