High Anxiety on Impeachment: We Don’t Have to Give In26th March 2019
Impeachment talk, as Alexander Hamilton warned us, tends to stoke “animosity” and “agitate the passions.” So let me start by thanking our contributors for their insightful and gracious replies to my case for using the remedy more frequently. Of the four of us, Ross Garber is the most skeptical about “adopting a more relaxed view of impeachment,” and he raises some important points. Here I’ll focus mainly on his essay, responding to his cautions in the order he raises them. (Hat tip to Bob Bauer, whose allusion to Mel Brooks inspired the title for this reply.)
Impeachment Is Disruptive
There’s good reason violent metaphors abound in impeachment discussions, Garber argues: impeachment is “immensely disruptive to the normal function of governing.” Still, recent history suggests that what disruption we suffer is entirely manageable. During the Clinton impeachment, as Judge Richard A. Posner observed in his 1999 book on the subject, “government ticked along in its usual way through thirteen months of so-called crisis.” Posner speculates, perhaps unfairly, that “some Senators may have been concerned about the length of the trial because they were afraid that it would go on for a long time and they would not be missed.”
Garber is surely correct that a Congress engaged in a serious impeachment effort and a White House that goes to the mat in response will necessarily “be distracted from matters of policy.” But the key question is, compared to what? “One should really speak of incremental paralysis,” Posner points out. The alternative to an impeachment inquiry is never going to be federal business-as-usual.
We may, as in the Clinton case, have a lame-duck, second term president. Almost certainly, we’ll have divided government. And if we’ve reached the point where impeachment is a live possibility, the president will already find himself looking down the barrel of a “subpoena cannon” with a special prosecutor at his heels. Vigorous oversight—or, if one prefers Donald Trump’s all-caps coinage, “PRESIDENTIAL HARASSMENT”—is a given. The question is whether some measure of additional disruption over the baseline is a price worth paying in order to bring to a head and finally resolve serious questions about presidential malfeasance.
Impeachment Threatens the “Normal Balance of Powers”
“In an impeachment,” Garber writes, “the balance between the branches of government gives way to a wrestling match for control.” That, it seems to me, is as it should be. Sometimes the existing balance is, in the current parlance, “not normal.” The Johnson and Nixon cases involved efforts to right the balance between the executive and the “First Branch.”
Sometimes that struggle for control has led to periods of congressional dominance—or at least resurgence, as in the Nixon case. But, for good or for ill, it will not necessarily lead to any lasting change in the relative powers of Congress and the executive.
In a rather breathless letter delivered to Congress as the Clinton impeachment debate began, over 430 law professors warned that impeachment on the grounds outlined in the Starr referral would “make future presidents too beholden to the Congress,” and “dangerously weaken the office of the presidency for the foreseeable future.” In the end, though, the attempted ouster of Clinton didn’t weaken the presidency in any material way. If anything, the episode somewhat strengthened the office by forging a consensus for letting the independent counsel law lapse.
Impeachment Is “Antithetical to the American Democratic Process”
Removal via impeachment “nullifies” and “discards the votes of millions of people,” Garber cautions. He’s hardly alone in that view. Commentators with no special affection for the current president routinely describe impeachment as a process that “contravene[s] the will of the people” and “overturn[s] the results of an election.”
Such characterizations might have been justified in earlier periods of our constitutional history. Before the 12th Amendment, removing the president would replace him with his principal electoral opponent; before the 25th Amendment, the Constitution lacked a ready means for filling midterm vacancies in the vice-presidency. The want of such a mechanism meant that removal of Andrew Johnson would have elevated Senate president pro tem Benjamin Wade, a Radical Republican with sharply different policies. Its availability after 1967 meant that Nixon was replaced by fellow Republican Gerald Ford instead of Democratic Speaker of the House Carl Albert.
Today it makes little sense to describe impeachment in terms of discarding votes and reversing elections. As Bob Bauer points out, “the president facing ouster from office has already handpicked his or her successor…. The president may go, but the vice president, elected on the same ticket, stays.”
It’s true that, as Garber suggests, impeachments are divisive and may lead to “opprobrium” or “political reprisal.” Here again, our history gives us reason to doubt that any resulting disunity would catastrophic. The 1970s saw a level of political violence we’d find stunning today. But even with that backdrop, the Nixon impeachment inquiry proceeded peacefully. As Sanford Levinson points out, Nixon’s resignation even “led to what was in context a brief era of good feelings, at least until Gerald Ford pardoned Nixon.”
“Less Violent Remedies” Are Available
Again, I wouldn’t describe a remedy that puts a misbehaving officeholder out of a job in terms of violence. But I agree with Garber that “less drastic options” are usually preferable to impeachment. That concession comes with a couple of caveats, however.
First, I’m skeptical about the utility of censure as an alternative to impeachment. The few successful censure resolutions against sitting presidents have mostly faded into obscurity. While the tactic is perfectly constitutional, I fear it would have all the force of Congress declaring it “National Nurses’ Week.”
Second, the alternative remedies with real bite will themselves exact a toll in terms of disruption and distraction. That’s a price usually well worth paying but, as noted above, the choice isn’t between impeachment and normalcy.
Impeachment Could Damage American Prosperity
Would impeachment-induced uncertainty “threaten the stability on which financial markets depend,” as Garber suggests? If I had special insight into the animal spirits that drive stock market rallies, I’d be richer and better dressed. But it seems to me that our recent experience provides little cause for alarm.
The Watergate scandal unfolded during a significant stock market decline, but Nixon’s woes were hardly the slump’s only cause. The 1973 Arab oil embargo, which started the same month as the Saturday Night Massacre, was a major factor. The market rallied in the months after Nixon’s resignation. In the late ‘90s, investors “shrugged off” the Clinton impeachment, which coincided with one of the biggest bull markets in history.
Past performance is no guarantee of future results, but there seems to be little reason to fear the nightmare scenario offered by President Trump on Fox & Friends last summer, that if he’s impeached, “the market would crash [and] everybody would be very poor.”
Impeachment Could Undermine American Foreign Policy
I find greater cause for concern when it comes to impeachment’s potential effects on international affairs. Garber suggests that a resort to the remedy might weaken the president’s negotiating position abroad. Perhaps, but I worry far more about an embattled president’s temptation to use military force in an effort to change the subject—the tactic dubbed “Wag the Dog” in the Clinton era.
We may weigh the dangers of impeachment differently, but perhaps one thing we can all agree on is that it’s hardly an ideal remedy for a misbehaving and/or unfit chief executive. It’s every bit as complex, unwieldy, and awkward as Lord Bryce’s (violent!) “hundred-ton gun” metaphor suggests. Could we have designed a better one? Could we still? Those are the questions Sanford Levinson raises in his provocative essay, which I hope to turn to soon.
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