Thursday, October 31, 2019

No Going Back

For only the fourth time in our nation's relatively short history, the US House of Representatives has now formally voted to proceed to the possible impeachment of a President. The House vote was 232-196, an indication of the near unanimity on this issue within each opposing political party.

Impeachment, as Alexander Hamilton famously wrote in Federalist 65, involves "offenses which proceed from the misconduct of public men, or, in other words from the abuse or violation of some public trust" and so "are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." Accordingly, Hamilton warned, impeachment "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other, and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

As noted above, we have been down this  rocky road before. The last time was the thoroughly partisan Clinton impeachment, when the party ("pre-existing faction") controlling the House impeached a President of the other party, who then proceeded to be acquitted by members of his own party ("pre-existing faction") in the Senate (a scenario still widely expected to be replicated in our current impeachment season).  In doing so in 1998, the Senate certainly acted reasonably, since the President's alleged offense, while real, was an injury to society only in a contrived sense. The President had indeed lied, but he had lied about a private matter about which many felt he should not have been interrogated in the first place, his interrogators being a "pre-existing faction" motivated mainly by "their animosities, partialities, influence, and interest." If anything, it was the odious Ken Starr and his clique that were injuring society, not the President's prurient behavior. Hence the reasonable argument that, whatever else might be sayable about the president's behavior, it did not meet the political standard the constitution calls "high crimes and misdemeanors."

But the precedent set by that unfortunate 1998 episode in constitutional gamesmanship suggests that what was once seen as an extraordinary constitutional remedy might in the future become just one more political weapon in our increasingly tribal warfare, with little in the way of wider purpose.

Anyone who grew up (as I did) at a time when the 1868 Impeachment and Trial of Andrew Johnson was widely (if perhaps wrongly) remembered (and explicitly taught) as a congressional overreach, the malignant consequences of which we were spared by just one courageous vote, can recognize how great a change this was. It was Watergate, of course, that did the changing. It took a lot to overcome the reasonable reticence about invoking impeachment, but once that Rubicon was crossed the threat of impeachment became plausible in a way that it had not been for over a century. Just as Watergate changed the press and helped create our scandal-obsessed "politics of personal destruction," it likewise removed the stigma from resorting to impeachment.

President-by-Accident Andrew Johnson was one of our worst presidents. Perhaps he deserved to be impeached and removed from the White House. But, if so, it was not for his violation of the Tenure of Office Act (a law subsequently declared unconstitutional). Richard Nixon was no Andrew Johnson. He was a competent and effective President, recently re-elected by a landslide, who had nonetheless engaged in activity that, as president, he should certainly never have engaged in. The same might be said of Bill Clinton, who was also competent and popular. His bad behavior, however, was essentially private, not political (in the sense Hamilton and the founders had in mind).  Trump's case is quite different - a relatively unpopular president who lost the popular vote, and whose alleged wrongdoing is blatantly evident and can properly be described as political (in the Hamiltonian sense), the very sort of behavior the impeachment provision was probably intended to address. That suggests that, of the historical four, he is perhaps the president most obviously worthy of the serious sanction of impeachment. (Hence his supporters' struggle to defend him by spurious attacks on the process rather than actually attempting to justify his hard-to-defend behavior.) 

Things can change, of course, and numbers have been known to move, but the partisan division in the House vote seems more likely than not to predict the outcome of this exercise.

So the issue, as in all these cases of presidential misbehavior, remains determining what is actually an appropriate and effective response and what precedent it sets - a response and precedent in which the cure is at least not worse than the disease. 

And that requires clarity about the precise nature of our political disease,  a disease which predates the present president and of which - for all his norm-breaking behavior and all the long-term damage he may have done to our political culture and to our country's standing in the world - he is ultimately more a serious symptom than a cause. 

All of which reinforces the concern that the fantasy (associated above all perhaps with Joe Biden's campaign but hardly unique to him) of some possible post-Trump return to some sort of pre-Trumpian political normalcy is increasingly just that - a fantasy. As Tim Alberta argued in American Carnage: On the Front Lines of the Republican Civil War and the Rise of President Trump: "It is imperative to assess Trump not as the cause of a revolutionary political climate, but as its consequence; the forty-fifth president's election was the by-product of a cultural, technological, and socioeconomic convulsion that bred disparate but interconnected strands of populism on both the Right (Tea Party) and the left (Occupy Wall street). Maybe those fatigued Americans pulling for moderate Democrats to take things back to 'normal' are fooling themselves. Maybe there's no 'normal' to which America can return."

Whatever happens with impeachment, there really is no going back. And that may be the most worrisome part of all of this.

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