Speaking on “Fox News Sunday,” a day after the Senate voted 57-43 to acquit the former president on a single charge of “incitement of insurrection,” the South Carolina Republican argued that the vice president’s support for a fund that bailed out protesters over the summer could leave her liable for the same punishment.
“And if you use this model, I don’t know how Kamala Harris doesn’t get impeached if the Republicans take over the House,” Graham said.
“Because she actually bailed out rioters and one of the rioters went back to the streets and broke somebody’s head open. So we’ve opened Pandora’s Box here and I’m sad for the country?”
Graham was referring to Harris’ support of the Minnesota Freedom Fund, before she became President Biden’s running mate, which helped protesters post bail.
“If you’re able to, chip in now to the @MNFreedomFund to help post bail for those protesting on the ground in Minnesota,” she said on Twitter in June.
Um … perhaps because Harris wasn’t Vice President at the time? Perhaps this escaped Graham’s notice, but Harris was a member of the Senate at that time, not VP or even on the Democratic ticket. Harris’ involvement in these efforts ended around the time that Biden chose her as a running mate. If Graham thought this amounted to incitement at the time it happened, he could have pushed for a Senate Ethics Committee review, or even an expulsion vote.
Besides, voters knew full well of her involvement in this bail fund, and elected her anyway to the office. If they disapproved, they could have organized the election on that basis, but instead it was barely mentioned in the 2020 election cycle. Impeachment is — or at least has been — a tool to address malfeasance in the office for which removal is sought. That precedent hasn’t changed with this last Trump impeachment. It could arguably be applied to corruption or criminal behavior before taking office, but it has never been used in that manner before now, and this impeachment is no exception. On that basis alone, this impeachment gives no precedent to go after Harris.
There is precedent, however, against it. Recall Spiro Agnew’s resignation in 1973, which resulted from corruption and tax-fraud charges prior to Agnew’s election as VP. Agnew resigned to cut a plea deal after federal prosecutors made plain that an indictment would be forthcoming. At the time, the House declined to take up any impeachment at all, with Democratic speaker Carl Albert arguing that such matters belonged in court. (Agnew at the time unsuccessfully argued for the kind of immunity from prosecution in office that Donald Trump would later take all the way to the Supreme Court, which unanimously rejected it.)
Graham’s other equivalency holds a little more water, but not a whole lot more. Bailing out people does not confer any kind of legal burden from future behavior; if it did, we’d be arresting bondsmen on a regular basis for their clients’ actions. One can make a moral case of responsibility for further riots on those who bail out rioters, but then the case for Trump’s moral and potentially legal culpability for the Capitol riot then becomes stronger because of both proximity and timing. No matter how much Graham tries to equate the two, that proximity and timing comes a lot closer to the Brandenburg exception than anything Harris did with bail, even if it doesn’t really cross its threshold. It’s not even close.
The best argument Graham makes in this clip is that House Democrats cheapened impeachment by the way in which they pursued it — without due process and representation for the president. That’s undeniably correct, even if the timing made that difficult. The process has now eroded into a no-confidence vote, which we can expect to see played out now any time the House is controlled by the opposite party of the president, unless wiser heads prevail. Had wiser heads prevailed in 1998 and the House refrained from an impeachment which had no prayer for conviction, perhaps we wouldn’t be at this stage now.