Just (Im)Peachy

Most accounts of the 1787 Constitutional Convention emphasize how the framers designed checks on the president to prevent tyranny. But delegates feared an out-of-control legislature, too.

Some thought it was a bad idea to give Congress the power to remove the president, even if only for malfeasance. Pennsylvania delegate Gouverneur Morris, who would pen the Constitution’s Preamble, argued that the power to impeach would make the executive a mere creature of the legislature, unable to balance against that body in any meaningful way. Morris said it would be better to give the people full control over who occupies the office and just allow them to weigh in frequently at short election intervals. But he failed to persuade.

The U.S. Constitution’s Article II § 4 doesn’t leave voters with the full responsibility of discovering and punishing executive malfeasance: “The President … shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” This clause explicitly contemplates that some circumstances call Congress to apply the extraordinary remedy of abrogating the result of a fair election. And it’s not like the people are shut out of the decision: They elect their legislators, too – directly, and more often. So it’s not really possible for the removal of a president to “rise above” politics.

But maybe it matters whether the effort appears to be motivated more by political animosity than by a desire to restore public trust. Impeachment proceedings against Richard Nixon in 1974 – often remembered now as appropriate and bipartisan – were denounced by many Republicans at the time as a “witch hunt,” even after the “Saturday night massacre” when Nixon fired the special prosecutor investigating him. Until the U.S. Supreme Court said the administration had to release White House tapes of Nixon’s damning conversations, neither Republicans nor a majority of the public supported removal. Even when Nixon resigned after counting conviction votes in the Senate, polls reported that only 57 percent of the public wanted him removed. As Bill’s Clinton’s impeachment in 1998 illustrated, removal of an executive is so extreme that reasonable people can honestly argue: He may have broken the law, but it wasn’t that bad.

So impeachment depends less on the technicalities of criminal law and more on whether the official has abused the power of his office to such an extent that he can’t be trusted to hold it until his next election. With a new Democratic majority in the House of Representatives, The Atlantic‘s Yoni Appelbaum has put out a new call to begin an impeachment inquiry concerning Donald Trump. The core of Appelbaum’s case against Trump is not new:

The oath of office is a president’s promise to subordinate his private desires to the public interest, to serve the nation as a whole rather than any faction within it. Trump displays no evidence that he understands these obligations. To the contrary, he has routinely privileged his self-interest above the responsibilities of the presidency.

But Appelbaum’s primary argument is about process. In summary, the Constitution provides a removal process for reasons that don’t necessarily depend on the outcome of that process. Like our other political processes, it’s a way to work through intractable disagreements that otherwise spiral out of control, sometimes with dire consequences up to and including violence – such as shooting at members of Congress or mailing bombs to the president’s most vocal critics (remember?). “By denying the debate its proper outlet, Congress has succeeded only in intensifying its pressures,” Appelbaum writes. He lays out five benefits of beginning an impeachment process:

  1. A formal inquiry’s methodical timeline frustrates the president’s ability to control the terms and scope of the controversy as it’s covered by news sources. This balance tends to inspire more conciliatory public rhetoric on all sides. (To a small extent, I think the Mueller investigation has also had this effect.)
  2. Impeachment proceedings shine a spotlight on power points within the administration. The extra scrutiny means people are less likely to abuse their power, and it may drain an administration’s overall resources, which is good if their policy agenda is bad (e.g. replete with unpopular initiatives).
  3. Impeachment collects concrete evidence in relation to specific charges in a more streamlined fashion than the media can provide. Unlike reporters, members of Congress can compel testimony and have a duty to resolve factual disputes.
  4. Impeachment provides an alternative to political violence.
  5. No matter its result, impeachment is a political blight that the presidency and his party may just deserve.

Appelbaum also disputes the conventional wisdom that the country’s first impeachment, which nearly resulted in the removal of President Andrew Johnson in 1868, was merely a vindictive partisan failure. Like now, Appelbaum says, Republicans and Democrats in the post-Civil War period found themselves with seemingly irreconcilable moral views about the trajectory of the nation. Johnson, who shared many of Trump’s personality extremes, opposed civil-rights measures aimed at repairing the generational harms of slavery. He ignored racist terrorism in American cities that claimed dozens of lives. He said he wanted to preserve a “white man’s government.” Johnson’s efforts to promote these positions might not have been crimes in a traditional sense, Appelbaum acknowledges, but they help explain why the House impeached him on 11 seemingly technical offenses. The man was widely considered dangerously unfit to lead an egalitarian democracy, and impeachment is political.

For what it’s worth, if asked in a survey whether I supported impeachment proceedings against Trump, I personally would have answered “yes” starting last summer, following his one-on-one meeting with Russian President Putin. But I wouldn’t have ranked it as a high priority for a new Democrat-controlled House. Appelbaum’s compelling broader argument about impeachment as a valuable procedural tool is making me reconsider that.

But I also think Appelbaum somewhat oversells the benefits of the process. It might prevent metastasis, but it heals nothing. Andrew Johnson’s supporters took his acquittal in the Senate as a victory both for the man and for what he stood for – namely, perpetual inequality of the races. Southern states punished Republicans for a century, and 150 years later the spectre of racism still pervades our most bitter political battles. As for Clinton, his acquittal didn’t mitigate Republicans’ view that he was a disgrace to the office, and it reinforced our poisonous cultural tradition of letting powerful men off the hook for sexual misconduct. And what if either man had been convicted? Losing doesn’t make your political opponents see the error of their ways. Sometimes it just makes them madder.

What’s the endgame if the House passes articles to impeach Trump? If Mitch McConnell thought there was a real chance of conviction, I think he might just ignore the charges, saying they’re too frivolous, politically motivated, or premature to actually bring to trial. (Over at Lawfare, Bob Bauer confirms.) If the Senate did hold a trial, conviction on any charge would most likely fail to get the required 67 votes; Trump, his allies, and probably Russia would publicly claim vindication. If that vote fell purely along party lines, then the whole endeavor would be derided as a particularly melodramatic piece of political theater that should teach us a lesson about future impeachment efforts.

Even if the votes were there for conviction, I don’t see Trump resigning or even vacating the White House except by force. The exercise of force in that situation could very well inspire the violence that the whole process is supposed to prevent.

But I still think Appelbaum is right that members of the House who have the power to initiate impeachment proceedings should do so if and when they determine it’s appropriate, regardless of how they expect other actors in the system to respond. Impeachment is the tool the Constitution gives us for addressing serious presidential misconduct. When our representatives don’t reach for that tool even when they see serious misconduct, their inaction sets a precedent. In other words, use it or lose it.

Photo credit: Slilin, “Capitol.” Some rights reserved.

Categories: Essays, News

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