Wednesday, May 23, 2018

The Impeachment Obsession

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. (The Constitution of the United States, article II, Section 4).

Like so many provisions of our 18th-century Constitution, this one remains subject to multiple competing interpretations. Impeachment's actual role in American history has been modest, a consequence of the few occasions it has been applied, all of which may or may not reflect what the Framers may have actually intended or expected.

Like so much of our American constitutional and legal tradition, impeachment originated in inherited British practice, according to which the House of Commons could accuse someone of a crime leading to a trial in the House of Lords. Since this process did not require royal assent, it could be used by Parliament against officers of the Crown even if they enjoyed the  monarch's support. The monarch him(her)self, however, was above the law and so could not be impeached. Hence the Constitution specified explicitly that the President too would be subject to this process, along with all other "civil officers."

One danger that some might have feared from this would have been that impeachment of legitimately elected Presidents might become a congressional habit and thus evolve into a de facto parliamentary form of government. That has not happened, however. In fact, very few impeachment trials have actually taken place - 19 in all, 15 of federal judges, of whom eight were convicted and removed from office. (One was subsequently elected a member of the House of Representatives, which may say something about how his impeachment was popularly perceived.)

Only two presidents have actually been impeached - Andrew Johnson in 1868 and Bill Clinton in 1998. Andrew Johnson was arguably one of our very worst presidents. Even so, he was acquitted by one vote, after which his case became a kind of parable against politically motivated impeachments. That was certainly how it was presented to us in school 60 years ago, a view reinforced by JFK's account in Profiles in Courage. The impeachment of Bill Clinton was very obviously politically motivated by a hyper-partisan, out-of-control Republican Congress. Democrats rightly rallied around the President. So there was no serious chance of his ever being convicted by the Senate, and indeed Clinton left office as one of the most popular modern presidents. As the ranking member of the House Judiciary Committee, Jerry Nadler (D-NY) has observed, the Clinton impeachment fiasco "showed that a determined majority in the House could impeach a President without legitimate reason." But the electoral price the Republicans paid for their behavior in the 1998 election, Nadler notes, showed that "people disapproved" of what the Republicans did. Senator Lindsay Graham (R-SC) agrees that the Clinton impeachment "blew up in our [Republicans'] faces and helped President Clinton." Impeachment, Graham argues, "has to be bipartisan, or it's going to be a failure."

Yet, in today's even more hyper-partisan atmosphere, impeachment talk has become the rage again in some quarters. One donor, Tom Steyer, has made it a major plank of his platform and apparently has a mailing list of more than 5 million people. Hopefully, most Democrats will resist this temptation! It seems reasonable to guess that the best cause the Republicans could attach themselves to in this election year could be persuading their voters to come out and re-elect Republicans, if only to avoid another hyper-partisan impeachment that would attempt to negate the previously expressed will of the electorate! 

And it is not as if there weren't a lot of important policy issues that the Democrats could run on! Why, one wonders, would any party imperil its case with the voters by tying itself to a possible impeachment which would likely fail in the Senate anyway or, at best, would merely saddle the country with Mike Pence?

In the wake of the Andrew Johnson fiasco, few ever expected impeachment to be employed against a president again, except in the most extreme case of criminality or malfeasance. Watergate precedents notwithstanding, that is the way it probably should stay. Judges have lifetime appointments. So impeachment is obviously the only available avenue when a judge proves unworthy. Presidents, however, are elected; and so, absent an extremely compelling case of criminality or malfeasance, broadly recognized as such in society, the will of the electorate (even if originally distorted by the Electoral College) deserves to be upheld for the allotted term (after which an unsatisfactory president may either retire voluntarily or be involuntarily voted out). The alternative of undoing an election would, on the contrary, be even more divisive, even more de-legitimizing of our political process, and even more subversive of our essential civic institutions.

The present Administration's contemptible campaign to subvert and de-legitimize institutions like the FBI has already succeeded in creating a constituency prepared to believe that an effort at impeachment would be nothing more than an illegitimate partisan attempt to undo an election (a repeat of the 1998 Republican-led Clinton impeachment effort). Indeed, in today's NY Times, Frank Bruni cited a CBS News poll that several weeks ago showed that fewer Americans believed Mueller’s investigation to be legitimate (44 percent) than to be politically driven (53 percent)! 

Given the likely partisan make-up of the Senate for the foreseeable future, such an effort would probably fail anyway, at even greater cost to our national unity, to civility, and to the perceived legitimacy of our political processes and our essential civic institutions.

It is our institutions - all of them - that need strengthening. Healthy, properly functioning civic, social, and political institutions are the best remedy against executive malfeasance, which is why their weakness at the present juncture is so lamentable and dangerous. 

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