The End of Impeachment

The worst thing that could happen to the power of the Congress to impeach a president and remove him from office appears to be happening now. If it hasn’t already occurred. It’s become politicized—in a way that robs what should be a solemn process of its seriousness, even its legitimacy. Impeachment may have already become defunct as an effective instrument for dealing with a crooked or out-of-control president.

This is as constitutionally serious as one political party’s efforts to prevent a significant number of the other’s voters from casting a ballot in elections, which has in fact defined the outcome of races in some states. Each form of getting around the rules is a subversion of the basics of the American democratic system. 

Opposed as I am to the “both sides” tendency of much of the press and many political observers, it has to be said that members of both parties are, perhaps unintentionally (as if that matters much), destroying the possibility of a fair and dispassionate use of the impeachment power—one so important to the Founders that they cited it first in Article II, which established the presidency, before they listed presidential powers.

The Democrats who are most passionate about their possible opportunity to impeach Donald Trump are making such a process less likely and more feckless. Inevitably, their impeachment rhetoric gets Republicans’ backs up—that is, those Republicans who are currently unready to evict the president from the White House (which is by far most of them), no matter what he has done thus far. That means that even if the Democrats succeed in taking over the House of Representatives in November and quickly go for impeachment, they’ll have a rough partisan fight on their hands. And even if they win the necessary majority of the House to pass some Articles of Impeachment and, though it’s less likely, a majority of the Senate, they’re unlikely to win the 67 votes necessary to convict the president—which would remove him from office. What would be the point of a partisan impeachment of the president that goes nowhere? 

As Jonathan Martin reported recently in The New York Times, Republicans are twisting the Democratic impeachment talk into a stratagem for raising money and mobilizing the base for the November races. The Republicans are telling their possible voters—not without a basis—that if the Democrats take over the House their first order of business will be to impeach the president. The sense that Democrats are eager to impeach Trump could be used against them in the short term and over the longer run could also undermine even a more considered impeachment proceeding in the House. This is why Democratic House leaders Nancy Pelosi and Steny Hoyer have tried to discourage moves to impeach Trump before at least special counsel Robert Mueller issues his report.

This is more a matter of tactics than of principle. The Democrats’ hope has been that Mueller’s report would provide solid grounds and therefore legitimacy to a House impeachment proceeding. The Republican response, as well as the president’s, has been quite obviously to undermine Mueller by attacking the work of the FBI, Justice Department officials, and Mueller’s own team. (Mueller’s reputation for rectitude is such that it blunts an attack on him personally.) In fact, at any moment the lathered-up president, beside himself over the FBI raid on the office and residences of his personal attorney Michael Cohen, might order the firing of principals in the investigation, perhaps leading to the ousting of Mueller himself. It’s been apparent for some time that Trump would like Mueller gone. 

The difference between the impeachments of Richard Nixon and Bill Clinton spells the difference between an impeachment that’s widely accepted by the country and one that is largely written off as a useless partisan exercise. In 1974 Peter Rodino, the House Judiciary Committee chairman, and his top aides made a point of seeking bipartisan agreement on whether Nixon should be impeached; and however they actually felt they proceeded with an outward attitude of more in sorrow, squeezing out the committee Democrats who were openly enthusiastic about impeaching Nixon. They also ruled out Articles of Impeachment based on policy differences—for example, the U.S. expansion of the Vietnam War into Cambodia—and focused instead on the president’s obstruction of justice and contempt of the Judiciary Committee itself, and a series of actions carried out by Nixon aides that formed a “pattern or practice” that threatened citizens’ privacy and liberties (by, for example, wiretapping or siccing the IRS on specified “enemies” of the president).  

This tempered approach on the part of the Democratic leaders of the House Judiciary Committee enabled Republicans to also vote for Nixon’s impeachment. If Mueller’s report doesn’t lead to a radically changed view of the president on the part of Republicans and a substantial number of those who voted for him in 2016 (this can’t be ruled out), such a bonding of Republicans with Democrats over impeaching Trump and driving him from office is inconceivable. 

And unless there’s a major political shift on the part of Trump’s backers, the Republican-led pursuit of the ouster of Bill Clinton will stand as the transitional nexus of past impeachments and the putative one to come. Led by then-Speaker Newt Gingrich, the House impeachment of Clinton was a nakedly partisan exercise, based on a lie the trapped Clinton told a grand jury. It wasn’t admirable (nor was his sexual behavior literally in the Oval Office and the study next door), but it didn’t rise to the level of an impeachable offense, and in the Senate the vote to strip Clinton of the presidency fell well short of the necessary two-thirds. 

The internal division within the Democratic Party was on display on CNN on Monday night, when former Obama adviser David Axelrod debated Tom Steyer, a California billionaire, who like several of his kind equates money with wisdom, over the wisest course on impeachment for their party. Axelrod that day had tweeted:

Steyer had replied: 

Then, in a live debate presided over by Anderson Cooper, Axelrod argued that the Democrats should wait for Mueller’s report and that they ought to proceed with care, “so that half the country doesn’t think that it’s a bloodless coup.” He said, “When you ask candidates in advance, ‘Will you vote for the impeachment of the president?’ And you say, ‘We’re going to make this the first order of business of a Democratic Congress,’ you’re tainting that process and making it necessarily partisan, and I think that is very bad for the country.”

“We do take the impeachment process extremely seriously, Anderson,” Steyer replied. But he argued that the citizens have “a reckless and dangerous president,” adding, “It’s not a question of partisanship here; it’s a question of being patriots.” But then Steyer went into circularity, arguing that impeachment “cannot happen without Republican voters and without people of the United States thinking that it’s necessary.” That was Axelrod’s point.

The problem is that impeachment doesn’t depend on the proving of criminal acts; an impeachable offense need not be a statutory crime, and not all crimes are impeachable offenses. But for all intents and purposes, as a result of the partisanship rending the country, the distinction between impeachable offenses and crimes has been all but erased. And unless Mueller—if he is allowed to complete his task—comes up with charges of horrendous and criminal behavior in 2016 on the part of Trump and his aides and allies, including that they conspired with Russians in order to obtain victory, it’s unlikely that an impeachment effort will end in his removal.

What’s also at stake now is whether impeachment will ever again be the effective barrier against tyranny that the Founders intended it to be.