The Politics of Impeachment

9th March 2019 Off By binary
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Bob Bauer

Gene Healy is performing an invaluable service in calling our attention to what he has correctly referred to as the “cultural superstition surrounding the remedy” of impeachment. He notes that I have a different but similar term: “Impeachment Anxiety Syndrome.” Perhaps neither term—not anxiety and not superstition—fully captures what we are getting at: the terror with which the very process of impeachment, even a preliminary inquiry into the grounds for impeachment, is viewed.

I disagree with very little in Gene’s presentation, but I will take this space to say more on basic questions of substance and process. In the first case, I want to return briefly to the issue of what constitutes an impeachable offense. In the second, I will address the specific reservations we hear about the very initiation of an impeachment process. This second set of observations engages with the possible reasons for the level of superstition or anxiety that we see behind this resistance to the constitutional process.

Circular Reasoning

Healy asks the reader to reflect on the peculiar conclusion that “the one job in America where you have to commit a felony to get fired is the one where you actually get nuclear weapons.” And yet we don’t even have an agreement among scholars that any felony is a firing offense. We often hear that impeachment is only appropriate if the president has committed 1) a crime, 2) the crime is serious and 3) it bears in some way directly on the conduct of his office. So the “indispensable remedy” is hardly ready to hand. All sorts of obstacles lie in the path of anyone seeking to raise the question of the president’s commission of impeachable offenses.

So what accounts for this “cultural superstition” or high “anxiety”? We have here fully circular reasoning. On the one hand, impeachment is seen as a necessary check against abuse of power, and so the more powerful the presidency and the greater the risk of abuse, the more indispensable the remedy. And yet, on the other, the power of the presidency is such that many fear hobbling its occupant and, by doing so, catapulting the country into “national nightmare” and “constitutional crisis.” In other words, the more power accrues to the presidency, the more protections we afford it, including this aversion to impeachment. This is not only the wrong constitutional view. It makes no sense.

Most scholars agree that no crime is required as a predicate for impeachment. But some crime-type offense remains for many a crucial consideration. And the catchall is “abuse of power.” This is a legitimate reason to initiate impeachment inquiry, and yet it does not cover all the potential cases of a president unfit to wield and project the authority and power of the office.

Consider the case of a president who is a racist. Assume his associates know that he believes that Americans of color are inferior and ought to be treated as second-class citizens. He expresses these views privately, and within the Oval Office, not so privately. Every now and then, when it suits him for political reasons, he teases these views out in public.

Is this an “abuse of power”? It should not be difficult to appreciate the dangers of entrusting vast power to a president who, we would have reason to fear, would wield it discriminatorily, motivated by racial animus. But the abuse of power is not the sole ground of concern. The disqualification is at bottom one of character and fitness. A racist president cannot represent the nation, and impeachment is an appropriate response to expressed beliefs that are “grossly incompatible with the proper function and purpose of the office.”

Is Impeachment Undemocratic?

In the defense of the restricted view of impeachment, one often hears that this constitutional process is an affront to democratic self-government. Impeachment is a political process, and its outcome, if a House vote to impeach is followed by a Senate vote to convict, is something akin to a coup d’etat.

But, of course, the president facing ouster from office has already handpicked his or her successor. Prior to each major party nominating convention, the prospective nominee and their advisers withdraw behind closed doors for a suspenseful period of time and emerge to announce a choice that the political convention almost invariably affirms. (There been exceptions, like John McCain’s inclination to run with Joe Lieberman, but it is truly an exception when the presidential nominee of one party picks as his running mate a former vice presidential nominee of the other). Those claiming that impeachment reverses the outcome of the previous election tend to overlook this unique feature of presidential succession. The president may go, but the vice president, elected on the same ticket, stays.

Some part of the blame for this culture of superstition and experience of anxiety falls on Congress’s low reputation. It was no help at all that former President Gerald Ford decided to announce, now infamously, that an impeachable offense was whatever the House majority decided at any given time. He was wrong about that. As Phillip Bobbitt has cogently argued, impeachment is a law-type process governed by precedents of procedure and substance.

Of course, Congress can chuck all restraints, and no doubt many worry that it will, especially under intense partisan pressure. But the history of impeachment does not support this view. Congressional Republicans locked in a bitter struggle with President Andrew Johnson over Reconstruction policy resorted to impeachment in fits and starts but, after finally initiating the process, impeached but did not convict. In the 1999 trial of Bill Clinton, the Republicans who lost only one of their members (Arlen Specter) in a vote for conviction knew it was a “free” political vote,” having no effect: with the Democrats united, the Senate was nowhere near the supermajority required to remove the president from office. Public opinion polls reflected strong majorities against conviction, and the Senate Republican leadership agreed to a short trial, went through the motions, and were relieved to have it quickly over with.

At any rate, the fear of possible feckless political behavior does not support the virtual abandonment of a constitutionally “indispensable remedy.” The risk that it will be unused when needed is no less serious than the potential for its abuse.

Another concern, particularly salient in the polarized politics of our time, is that mobilized political majorities will use impeachment to victimize the opposition and leave the public dangerously divided. In other words, an impeached president’s defenders will never be convinced of the merits of the case for impeachment. They might take to the streets, or just lose all confidence in the democratic process. So the public takes the blame: it is thought unable to break free of the grip of partisan affiliations and beliefs and fairly evaluate the case against the president’s continuance in office.

We don’t give the American people enough credit. By the time that Senate opened the impeachment trial of President Bill Clinton, Republicans were frantic to get out of Dodge City because the public had deserted them. They had had an opportunity to make their case, and they didn’t succeed. Americans who were quite unhappy with Bill Clinton’s conduct, and probably more than willing to accept his resignation at the time of the initial revelations of the Lewinsky affair, were unimpressed with the House’s prosecution of the impeachment case. The majorities holding firm for Clinton were significantly larger than what his vote total in his reelection campaign would have implied.

This suggests some caution is warranted in treating the public as inevitably dividing into mindless rampaging herds. We might do better to encourage the Congress to do its constitutional duty and make its case. There is no point in projecting how the public will react to the case when made. Only allowing the process to play out will permit for a definitive public judgment.

Those desperate to avoid engagement with the “I-word” argue that the best way to give the American people their due is to refer presidential misconduct to its judgment at the next regularly scheduled election. We are about to hear arguments of precisely this kind as 2020 approaches and the charge that Donald Trump has committed impeachable offenses is met with this objection: “Let the voters decide.”

Impeachment, however, is a constitutional, not an electoral process, and the confusion of the two will leave the “indispensable remedy” in a shambles. Once again illogic prevails. If, as Gene points out, impeachment is intended to protect the public from harm, then waiting things out until the next election, fingers crossed, is absurd.

Finally, there is a view that the House should not bother with impeachment if the Senate is unlikely to convict with the necessary supermajority. Once again, on this theory, the substantive case is held hostage to calculations about the eventual success of the initiative. In resolving the a question of substance, which is whether the president is safely left in place, the more responsible course—the constitutionally appropriate course—is to stay with the substance.

This is a final irony. Many fear that impeachment is invariably and dangerously political, and yet their own fears arise to a considerable degree on the strength of what are likewise political considerations—what the Senate will do, what the polls show, what the voters will think. It is often for these ultimately political reasons that they take extreme, nervous stands against resort to impeachment. Add to that the belief the president is so powerful that we ought to resist holding him or her to account, and we have the full measure of a wrong-headed picture of the importance and uses of this constitutional process.

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