May 25, 2019, 0:02


The problem with impeachment

The problem with impeachment

It only took a few hours to get from the Mueller report’s release to demands that Democrats begin impeachment proceedings against President Donald Trump.

At the Atlantic, Yoni Appelbaum called special counsel Robert Mueller’s report “an impeachment referral.” So did Mehdi Hasan at the Intercept. Jon Favreau, host of Pod Save America, tweeted, “I don’t know how you can read this report and not conclude that an impeachment inquiry is warranted.” Rep. Alexandria Ocasio-Cortez (D-NY) announced that she was signing onto Rep. Rashida Tlaib’s (D-MI) impeachment resolution.

The Democrats’ congressional leadership had a very different take. “Based on what we have seen to date, going forward on impeachment is not worthwhile at this point,” said House Majority Leader Steny Hoyer. “Very frankly, there is an election in 18 months and the American people will make a judgement.”

This did not prove a popular position. The New York Times’s Jamelle Bouie called Hoyer’s comments “an abdication of constitutional responsibility.” Lawfare’s Susan Hennessey said it would be “cowardly and wrong” for Democrats to avoid impeachment hearings just because “the political optics would be inconvenient or even damaging.”

These are all political commentators I respect and even admire. But I part with the idea that a doomed impeachment drive is a constitutional duty immune to political considerations.

In 2017, I became a bit obsessed with the question of what impeachment is for, and when it should be used. I spent months talking to constitutional law professors and reading old texts to try to understand how the country’s founders meant it to be applied. The thing I was told, again and again, is that impeachment is a political remedy, not a legal one.

“The grounds for impeachment can be extremely broad and need not involve a crime,” said political scientist Allan Lichtman, author of The Case for Impeachment. “That’s why they put impeachment not in the courts but in a political body. They could have put it in the Supreme Court, but they put it in the Senate.”

The founders could have made the impeachment process legal or automatic. Instead they made it political and discretionary.

Which makes dismissing the idea that congressional Democrats should assess a political remedy like impeachment politically is strange. If impeachment would backfire — strengthening Trump while weakening congressional Democrats’ ability to hold him accountable in the future — then far from protecting democracy and the rule of law, impeachment would undermine it.

Do Mueller’s findings demand impeachment?

In his classic book on impeachment, constitutional lawyer Charles Black Jr. argued that the true question impeachment poses is not whether the president committed a crime, but whether the president’s crime merits overturning the result of the last election and preempting the public’s opportunity to make their own choice in the next:

I think Black is right about this, even if it might be better were he wrong. I’m on record arguing that impeachment should be normalized, and that unfitness for office should be impeachable. But that normalization hasn’t happened. The fact that it is the Mueller report that has triggered this conversation shows we still see impeachment as a response to presidential criminality.

Mueller’s report is a mixed document. The investigation did not establish coordination between Trump’s campaign and the Russian operation to influence the 2016 election. But it found substantial evidence that Trump sought to obstruct the Russia investigation. And that narrative is, indeed, damning.

Left to his own devices, this president is lawless and dishonest. But the problem for impeachment is that Trump was not left to his own devices. “The President’s efforts to influence the investigation were mostly unsuccessful,” Mueller writes, though “largely because the persons who surrounded the president declined to carry out orders or accede to his requests.”

Is the case for impeachment really going to be that Trump wanted to fire then-Attorney General Jeff Sessions, but didn’t? That he wanted to fire Mueller, but didn’t? That he fired FBI Director James Comey in 2017? That he asked his staff to do illegal things, but then accepted their judgment when they refused? That being a liar — which has been obvious about Trump since long before the American people elected him — is a high crime and misdemeanor?

The Mueller report includes some new revelations, but few that change the shape of the story as we already knew it. As such, recent polling is a reasonable guide to the public’s beliefs about whether the impeachment threshold has been reached. In March, only 36 percent supported impeachment proceedings, though that included 68 percent of Democrats. It’s possible, of course, that the release of Mueller’s report will shift those numbers in one direction or another, but for now, the public is firmly against impeachment.

One argument here is that the polls are merely preliminary. Bouie makes the strongest version of this case, writing that, “‘We shouldn’t impeach because it isn’t what the voters want’ is an extremely blinkered vision of politics that presupposes a world where public opinion cannot be moved and political parties cannot shape the political landscape through coordinated action.”

But that’s a straw man. No one is arguing that public opinion is immovable, just as no one is arguing public opinion is endlessly malleable. The argument is that public opinion begins opposed, and congressional Democrats don’t believe that impeachment proceedings will change that fact in their favor.

Maybe they’re wrong, but I’m not seeing people make a serious case that they’re wrong. Instead, the real argument seems to be that it doesn’t matter if they’re right.

Is impeachment a congressional duty?

“At this point, it doesn’t matter whether impeachment is ‘bad politics,’” writes Ana Marie Cox, “the president has committed impeachable offenses and to ignore that is its own abuse of power.”

The role of leaders is to lead. The purpose of an impeachment trial is to present the evidence for and against the president of the United States. And even though no one believes Trump will be removed from office — there’s no way two-thirds of the Republican-controlled Senate will vote for that — impeachment is a principled defense of American democracy.

The idea that “we shouldn’t impeach because the Senate won’t convict,’” Bouie writes, “is an instrumentalist vision of politics that treats it primarily as a tool for removal.”

I agree that it’s an instrumentalist vision of politics, but politics is often instrumental! And when it comes to the underlying question here — protecting American democracy — I’m an instrumentalist. Whatever its motivations, if an impeachment drive is certain to fail and likely to strengthen Trump and congressional Republicans going into the 2020 election — thereby rewarding the very behaviors it’s meant to curb — then I have trouble understanding the point of it.

One possible answer is in Appelbaum’s thoughtful piece, which argues that “impeachment is best regarded as a process, not an outcome. It’s the constitutional mechanism for investigating whether an executive-branch officer is fit to serve.”

In this telling, impeachment proceedings wouldn’t be about removing Trump from office. They’d be about fairness and transparency. Trump, Appelbaum writes, “deserves a chance to clear his name. The public deserves a chance to examine the evidence against him. And his supporters and opponents alike deserve the clarity that only convening impeachment hearings can now provide.”

This is stirring, but I think it’s incorrect. The public does not lack for opportunities to examine the evidence for and against Trump. Nor do I think hearings of this sort are likely to provide cool clarity as to his crimes and their severity. Impeachment will be a partisan war over the president’s removal, and anyone who thinks otherwise is fooling themselves. The fact-finding potential within the process will be overwhelmed by the question of whether impeachment is merited. As happened to Republicans in 1998, impeachment proceedings will shift the focus from the president’s misdeeds, which are grave, to the question of whether he should be ripped from office.

Absent public support for impeachment, and amid a strong economy, it would give the White House an opportunity to run the playbook Bill Clinton ran so successfully in the 1990s: Here’s Trump, focusing on economic growth, and there are the Democrats, focusing on their doomed vendetta against the president.

This is a strategy that would unite Republicans and split Democrats, and if Trump won using it, then the harm to American democracy would be incalculable. I think it’s a mistake for liberals to wave that prospect away.

This brings us back to the question of elections, the frontline mechanism of democratic accountability. Behind some of these arguments is a fear, I think, that the American public doesn’t care enough about the rule of law to protect it themselves in the next election. After all, Democrats didn’t run on Mueller in 2018, and there’s no evidence they want to run on his findings in 2020, either. Will all this really go unpunished? What if Trump then wins reelection?

“If you’re president, you get to commit whatever crime you’d like, so long as your party has enough votes in Congress to help you escape conviction,” writes Favreau. “Does that seem like a great precedent?”

No, it’s a terrible precedent. But then, we’re trapped in a terrible political system. All the options are bad. Justice is never assured, and it’s not even likely.

As I understand the House Democrats’ plan, it’s to use the Mueller report to launch investigations, send out subpoenas, and hold public hearings. All of that could lead to revelations that tilt the public toward impeachment, it could prove that the public doesn’t consider these revelations important enough to merit impeachment, or it could simply inform the public to help them make a decision in the 2020 election.

Either way, it keeps the focus on Trump’s crimes and his lies, rather than overwhelming that conversation with a debate over removing Trump from office at a time when there’s no prospect of marshaling the votes to actually remove him from office. It seems like a reasonable strategy to me.

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