Everyone's Wrong About Impeachment
Some Democrats are preparing to force a premature vote on impeaching Donald Trump in the House of Representatives. It's really hard to remember during such a ferocious debate, but this is important: presidential impeachment remains almost completely uncharted territory for the nation.
Yes, two presidents have been impeached without being convicted and removed, and Richard Nixon resigned rather than face certain impeachment and removal. But none of these cases serves well as a precedent for all the reasons described in this excellent piece by Julia Azari. The particular issues of the current President of the United States, who brought a whole lot of baggage as he ascended to the highest office in his first political campaign, only complicate the discussion further.
But we have to start somewhere, so let's start here: Impeachment is a political process, not a purely legal one. It isn't simply a question of substituting the House for a grand jury and the Senate for a court. While we know the rules of the courts well, and have a rigorous system for keeping track with how those rules are changing, presidential impeachment has ginned up twice over more than two centuries, leaving few helpful lessons. And impeachment isn't well defined by the Constitution at all.
Article II only says that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors," which is about as vague as it gets. Article I doesn't help; it sets up the House as the chamber which brings impeachment proceedings, and the Senate as the body to try impeachments, but that's about it. At the extreme, then, we cannot say that Gerald Ford was wrong about an impeachable offense being "whatever a majority of the House of Representatives considers it to be at a given moment in history.” On the other hand, most Americans believe that impeachment over something minor would represent an abuse of power by Congress.
What's clear is that impeachment is not enforcement of the criminal code by other means. Presidents can be held responsible for "high crimes and misdemeanors" that are not violations of the criminal code -- and it would be an abuse of power by Congress to impeach for crimes that just aren't important enough. That was one reason many believed the impeachment of Bill Clinton specifically over perjury about an affair was an abuse (the charges of obstruction of justice were in my view at least important enough had the evidence been less fanciful).
By the same token, members of Congress vote to impeach and convict for reasons that are not limited to what the members of a grand jury or a trial jury would properly consider. Political factors are fair game as well.
What's the difference? By leaving it up to politicians, the Framers decided that politics would be the overwhelming force behind the impeachment process. So it's not surprising or wrong that partisanship matters, or that members of Congress may be influenced by public opinion polls about the president and about the grounds of impeachment -- elements that would be entirely inappropriate for a judicial proceeding, but are the inherent nature of a process that invites politicians to be involved. Trump's approval numbers are the worst by a good deal for any first-year president, but he's still quite a bit more popular than Richard Nixon was in 1974, or than several other presidents were at their low points.
It's not just electoral politics, either. Blatant horse-trading over a presidential impeachment might be a bridge too far, but politicians are going to take into account how impeachment will affect policy outcomes and how influence is distributed within the political system. They would certainly take into account, for example, who the vice president is and how things would change with (in this instance) Mike Pence in the Oval Office. 1 Trump, who has governed as an extreme partisan, has made few if any friends among Democrats. Nor does he have many Republicans who believe they owe their jobs to him -- after all, Republicans lost House seats in the 2016 election. It's unlikely, too, that very many congressional Republicans believe that Trump is an essential partner in passing legislation, or even much of a help. Those weak ties are serious risk factors for him that aren't a driving force in Special Counsel Robert Mueller's probe.
Another way to look at it, then, is that there is a large range of presidential misbehavior that would fall into the range of legitimate impeachment, and that the evidence so far puts Trump squarely in the middle range. He's committed more than enough abuse of power and obstruction of justice -- and as Republican Senator Richard Burr told Politico earlier this week, members of Congress are unlikely to buy the preposterous theory that presidents cannot commit obstruction -- to make impeachment legitimate, but safely below the line at which the evidence would cry out for the House and Senate to act. 2 In these situations, Congress's decision on whether to act will be based on some combination of how grievous the president's actions have been and the political context faced by each member of the House and Senate.
Why, then, the veneer of judicial proceedings if it's really about politics? For at least two good reasons. One is that facts matter, and members of Congress -- many of them lawyers -- believe that judicial-like procedures are a good way to get at the truth. And also because the law is certainly relevant to the question of impeachment, even if it is not the entire evidence.
I think this gets to Ezra Klein's recent argument that the bar for impeachment has been too high. I don't think it's correct to say that impeachment is a good fit for someone who is simply bad at being president, a Jimmy Carter or a George W. Bush. It's also a flat-out abuse of power if, in cases of divided control, a House majority chooses to impeach simply because they don't like the president of the other party and to force the Senate to conduct a trial and acquit on the same partisan grounds -- indeed, that's really the story of the Clinton impeachment. But normally we don't have to worry about those kinds of things, because professional politicians in the House won't do them. That would be the case with Trump if he were merely bad at his job.
But Klein is correct that impeaching a president actively engaged in harming the democratic process is perfectly legitimate. Perhaps the best way to get at this is through the oath of office, one of the very few specific provisions in the Constitutional explanation of the presidency. They swear to "faithfully execute the office of President of the United States" and to "preserve, protect and defend the Constitution of the United States." To the extent that his or her actions break that oath of office, impeachment is an entirely Constitutional remedy, whether or not those actions involve criminal law.
Richard Nixon considered his underwhelming vice president Spiro Agnew a kind of impeachment insurance -- up to the point in which Agnew was caught in his own scandal and resigned as part of a plea deal, leaving Nixon with the popular Gerald Ford as his vice president.
I've argued that firing the special prosecutor would probably move Trump to the other side of that line. It's possible to imagine revelations that would similarly make impeachment seem imperative, but there's a very good chance the evidence will remain in that middle area.
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Mike Nizza at firstname.lastname@example.org