The Weekly Sift

When is it reasonable for an official (and his party) to hold on in the face of suspicion?

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Last week, Senator Robert Menendez of New Jersey was indicted for bribery. He immediately resigned as chairman of the Foreign Relations Committee, as the bylaws of the Senate Democratic caucus mandate. Almost as quickly, big-name Democrats — like New Jersey Governor Phil Murphy — began calling for him to resign his seat in the Senate, which nothing in the rules requires him to do. Other Democrats, like Rep. Andy Kim, announced they would run against him (if necessary) in 2024.

As I noted last week, though, senators were slower to comment. John Fetterman of Pennsylvania appears to have been the first senator to call for Menendez’ resignation. But since then the floodgates have opened. At least 30 senators — all Democrats, including New Jersey’s other senator, Cory Booker — are asking him to resign.

The Constitution’s Article I, Section 5 allows the Senate to expel a member, but that requires a 2/3rds vote. And even if Democratic senators were willing to go that far, Republicans are unlikely to cooperate, because they would have to recognize that indictments — like Donald Trump’s indictments, say — are serious matters. So Menendez is not going to be expelled.

New Jersey’s constitution allows for the recall of federal officials, but no senator has ever been recalled, and it’s not even clear such laws are consistent with the US constitution. But 25% of New Jersey’s registered voters would have to sign a recall petition, and even if that Herculean goal could be achieved, it’s not obvious how much sooner the special election would be than the 2024 election when Menendez’s seat comes up anyway.

In practical terms, then, nobody is going to force Menendez to leave office early if he doesn’t want to go. So we’re left with the more abstract question: When should a public official resign or be removed?

The fundamental tug-of-war is between two principles: First, that an indictment is not a conviction. US law says that accused people are innocent until proven guilty beyond a reasonable doubt. If the question is whether he will go to jail, Menendez deserves his day in court just like anybody else.

But whether he should stay in the Senate is a different question. Public office is a privilege, not a right. If we’re debating whether someone should hold a position of power, maybe very-credible-suspicion is a high enough standard. Julius Caesar famously divorced his wife Pompeia after a scandal, even though he also held that she was innocent, saying “Caesar’s wife must be above suspicion.”

Maybe that’s the right principle here, too: If the citizens of New Jersey have good reason to doubt that their senator is serving their interests rather than the interests of whoever can bribe him, maybe he shouldn’t be a senator any more. Maybe they shouldn’t have to wait for a jury verdict or for his term to end naturally.

If you believe that, then someone like Menendez should resign. Arguably, so should Supreme Court Justice Clarence Thomas, who appears to have a long history of accepting expensive gifts from rich men who may or may not have specific cases before the Court, but who clearly want to influence the general direction the Court takes. And while Donald Trump currently holds no office (except in the imagination of the Qanon faithful), he also should step aside and let the GOP nominate someone not facing multiple felony indictments.

Obviously, Menendez, Thomas, Trump, and many others in recent history don’t see it that way. And while Democrats would like to be free of Menendez’ baggage, the great majority of Republicans are unwilling to ask their tainted leaders to step aside.

So why don’t more people do that? And to what extent is their reasoning justifiable?

The big reason to step aside, or to hope someone from your party steps aside, is that otherwise the individual’s battles take center stage and distract attention from the issues that person is supposed to be dealing with on behalf of the People.

To me, the only justifiable reason not to step aside is that you have already become individually important. That’s the case, for example, if your resignation means that you will be replaced by someone of the opposite party — possibly flipping control of some house of Congress or changing the partisan make-up of the Supreme Court. Such partisan considerations shouldn’t be absolute — at some point, people just have to go, whatever the consequences — but a change in the government’s partisan balance does raise the bar.

A second possible reason is if the charges against you really are the kind of “witch hunt” Trump is always talking about. If the same partisan machinery can target your replacement just as easily as it targets you, then you might as well stand and fight.

This is how I think these considerations apply to current cases: If Menendez leaves office, his replacement will be named by New Jersey’s Democratic Governor Murphy. So the seat will stay in the Democratic column. Further, I don’t know of anything that makes Menendez unique among Democrats. If, say, he were the lone crusader on some issue, I could see him wanting to stay on. But none of that is true, so he should go.

Clarence Thomas’ case is trickier, because President Biden would want to appoint someone far more liberal. At some point, though, even Republicans should want him gone, because defending his corruption taints their whole party. In a better-functioning political system, Mitch McConnell would go to President Biden and say, “We could support removing Thomas if you’d pledge to replace him with someone on this list.” Biden would push back with his own list, and eventually they’d come to an agreement.

What makes Donald Trump’s case special is that the Republican Party is dominated by his personality cult. So he is already personally unique. For many in the MAGA movement, politics amounts to Trump or not Trump, and is only tangentially connected to the issues that used to motivate the GOP, like taxes, abortion, national defense, or protecting businesses from government regulation. Agreeing to let Trump go is defeat in itself, not a strategic move that lets them fight on better ground.

So we can expect Trump to fight on until he is either decisively defeated or dies by natural causes. His cult will fight alongside him, independent of what crimes he has committed or what evidence is revealed. Individual Republicans need to decide whether they are part of that cult or not.

And finally, I’ll consider Joe Biden, who is facing an impeachment inquiry in the House. So far, though, that inquiry has revealed nothing of substance, and looks like a pure fishing expedition. It is not hard to imagine a similar quantity of Nothing being raised against Kamala Harris not long after Biden resigned.

So pending any substantive evidence of wrongdoing, Democrats should stick by Biden. In the unlikely event that something really convincing is found against him, though, I’d ask him to step aside, because Biden is not unique. Unlike the GOP, the Democratic Party is not a personality cult, and should respond to evidence.