Maybe the Founders Got Impeachment Wrong
The danger is it will be used too little, not too much.
Some liberals are trying to slam the brakes on talk of impeachment.
California Representative Adam Schiff, a leading Democratic congressional critic of President Donald Trump, wrote an op-ed for the New York Times urging members of his party not to “take the bait” of discussing impeachment. Proposing it now is premature and would serve only to make Trump’s supporters angry enough to vote in larger numbers this fall.
Harvard law professor Laurence Tribe and constitutional lawyer Joshua Matz are, if anything, even cagier in an op-ed they co-wrote for the Wall Street Journal. Maybe Trump has done things that warrant the initiation of impeachment proceedings, they allow. But the fact that “political opponents are quick to frame their disagreements with him in terms of impeachment,” and his supporters to see criticism of him in light of a drive to remove him from office, has destabilized our politics.
Tribe’s caution is especially notable because in May 2017, less than 17 weeks into Trump’s term, he argued, “The time has come for Congress to launch an impeachment investigation of President Trump for obstruction of justice.” Back then Tribe said that the need to remove Trump from office should “become the focus of political discourse going into 2018.” Perhaps Matz has had a moderating effect on him.
The key passage in Schiff’s op-ed, to my mind, comes when he is arguing that the bar for removing a president is appropriately high:
Impeachment is an extraordinary remedy, not to be entertained lightly, and in the case of a president, would mean putting the country through a deeply wrenching process. It is instead a remedy that must be considered soberly, mindful of the fact that removing a president from office should be the recourse for only the most serious transgressions.
Who could disagree with any of that? But there is a paradoxical quality to the argument that should be brought to the surface. Schiff is not saying, and Tribe and Matz are not saying, that we should be careful about impeachment talk because it would be destabilizing to get used to kicking out presidents in between elections. They understand that the country is in no danger of setting a low bar for the removal of a president, because the Constitution makes it impossible to do that. The requirement that two-thirds of the Senate agree on removal means a strong national consensus is needed for it to take place.
Schiff’s argument is that if a president’s political opponents appear too eager to remove a president from office, it can impede the formation of a consensus against him. That’s true. But this point raises a constitutional question that goes beyond our own era’s contentious debates about Trump.
Debating impeachment during the Constitutional Convention, James Madison “thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate.” During the debate over ratification in Virginia, Madison described impeachment as a “security” against the possibility that a president would abuse his power to issue pardons. Impeachment was meant, in short, to be a real check on the president.
But the threat of impeachment has ended only one presidency, that of Richard Nixon. That threat has not kept the presidency as an institution from amassing a larger and larger share of federal power (which has itself tended to increase over time). And given the strong partisanship of our day — party politics being something the Founders notoriously failed to foresee — it may not be a real check now.
When impeachment again came up during the convention in 1787, Hugh Williamson of North Carolina is reported to have “thought there was more danger of too much lenity than too much rigour towards the President.” The Founders set a high bar for removing a president. Thinking about the modern presidency, and not just this president, one might well wonder: Maybe too high?
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