White House

You Can’t Ignore Politics in Impeachment

(Leah Millis/Reuters)
And the Founding Fathers wouldn’t have wanted you to.

Should Donald Trump be impeached and removed from office? That’s the wrong question to ask. Impeachment of a sitting president is not an exercise in pure theory. It cannot be separated from the fundamentally political questions: Who should vote to impeach or remove? When? And why? That’s how impeachment was designed in our Constitution, how it has worked throughout history, and how it should play out in Trump’s case.

High Crimes and Low Politicians

The Constitution says only that the president, vice president, and other executive officers “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Only one of these offenses — only one crime, period — is specifically defined in the Constitution: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort” (emphasis added). The Founding Fathers were all too aware that “treason” is a vague term subject to easy abuse, and they set out a rigorous standard for it that is clearly not at issue here. Trump has neither levied war on the nation nor joined with any enemy engaged in doing so.

Bribery is the only other specifically named impeachable offense. It is the one most commonly used to remove federal judges. Technically, the Constitution says only that federal judges serve “during good Behaviour,” but Congress since 1803 has used the impeachment process to remove them from the bench. Of the eight federal officials actually removed from office by the Senate, all eight were judges: One was removed for treason (siding with the Confederacy during the Civil War), and six of the other seven were removed for bribery or some closely related offense, such as failing to report bribes as income to the IRS or perjuring themselves to cover up judicial favors to a business partner. You could add to that list William Belknap, a Cabinet official acquitted of corruption in 1876 only after he resigned. While Democrats have complained about a variety of financial conflicts involving Trump and his family business, as of now, there is no serious effort to build a case that the richest man to hold the office in decades should be impeached for taking bribes.

That leaves us with the famously open-ended third category, “high Crimes and Misdemeanors.” You might think this simply means “crimes,” but that is not how it was understood when it was written.

The delegates in Philadelphia saw British precedents as, in Alexander Hamilton’s words, “the model from which [impeachment] has been borrowed,” albeit with some important changes. The hot news from Britain in the summer of 1787 was the impeachment of Warren Hastings, the longstanding governor-general of India. Hastings’s impeachment was proposed in the House of Commons in April 1786 and debated for over a year.

The articles of impeachment, drafted and prosecuted by Edmund Burke, charged Hastings with taking bribes, but also with a variety of abuses of official power that defied easy categorization, all of which were explicitly denominated “high Crimes and Misdemeanors.” Burke selected that phrase with typically Burkean respect for its longstanding British usage, and it entered our Constitution as a compromise between two Virginians, George Mason and James Madison:

The draft of the Constitution . . . provided for [the president’s] removal upon impeachment and conviction for “treason or bribery.” George Mason objected that these grounds were too limited:

Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. . .

Mason then moved to add the word “maladministration” to the other two grounds. Maladministration was a term in use in six of the thirteen state constitutions as a ground for impeachment. . . .

When James Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason withdrew “maladministration” and substituted “high crimes and misdemeanors agst. the State,” which was adopted eight states to three, apparently with no further debate.

The details of the Hastings case, which dragged on interminably until his acquittal by the House of Lords in 1795, need not detain us. Mason and Madison would have defined “high Crimes and Misdemeanors” more precisely if they had expected the phrase to be interpreted by courts of law. Instead, as they did in many places throughout the Constitution, they placed most of their trust in the separation of powers to ensure that the impeachment power was exercised prudently. Thus, while the Constitution is vague on the grounds for impeachment, it is highly specific on the procedures: A bare majority of the House can impeach, but only a two-thirds majority of the Senate can remove anyone from office, and in the case of the president, only after a trial presided over by the chief justice of the Supreme Court.

Burke had argued in the Hastings case that impeachments should be “tried before Statesmen and by Statesmen, upon solid principles of State morality,” and that the members of the House of Lords had “the principles of honour, the spirit of cavaliers to govern here; not the low principles of jurisprudence only.” Hamilton, explaining the Constitution’s impeachment clauses to the public in Federalist No. 65, emphasized that impeachment in America would be, instead, a political process, with all the hazards that entailed:

A well-constituted court for the trial of impeachments is . . . difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, 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 on 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. [Italics added.]

Thus, departing from the British practice of trying impeachments before the aristocratic House of Lords — the supreme judicial authority in Britain in 1787, unanswerable to the people — Hamilton considered a partisan political outcome to be the lesser evil compared to a verdict rendered on high or legal principle, but without popular legitimacy:

It is much to be doubted, whether the members of [the Supreme Court] would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might . . . be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. . . . The awful discretion which a court of impeachments must necessarily have . . . forbids the commitment of the trust to a small number of persons. [Italics added.]

The solution to the dilemma of choosing between purely partisan impeachments and impeachments divorced from popular legitimacy was to divide the process between the House and the Senate:

The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.

Hamilton added that the power of impeachment would be “an essential check in the hands of [Congress] upon the encroachments of the executive” to counter the executive’s power to veto legislation. Thus, impeachment was part of a larger scheme of balance: Either the House or the Senate could prevent a removal of the president on partisan lines, but the two chambers could unite to remove the president if the struggle was between the branches of government rather than between parties, factions, or regions.

Presidents and Precedents

As is often the case, history has vindicated the wisdom of Madison and Hamilton. George Washington was threatened by his critics with impeachment, as nearly all of his successors would be, but impeachment has only passed the House twice, on both occasions (those of Andrew Johnson in 1868 and Bill Clinton in 1998–99) resulting in an acquittal in the Senate. Richard Nixon resigned before articles of impeachment, approved by the House Judiciary Committee in 1974, could be brought to a vote in the House. The closest any other president came to impeachment was James Buchanan in 1860, when a House investigating committee produced an 838-page report detailing the corruption of Buchanan’s unsuccessful efforts to get Kansas admitted to the union as a slave state. The full House never acted on the Buchanan report, which the New York Times described acidly as “full of proofs. . . . Every member he button-holed or bribed, every newspaper he sought to buy up, every job he concocted for the support of his scheme.”

The only one of these efforts that could be counted a success was the threatened Nixon impeachment, which loomed large in his decision to resign. Why did the others fail? Because the constitutional standard for “high Crimes and Misdemeanors” was designed to be vague enough to require both political judgments and the building of political support. In the view of Burke and even Hamilton, impeachment could be a safeguard against unfit characters of bad public morals. That could certainly describe Donald Trump, as in various ways it could describe Andrew Johnson, Bill Clinton, and James Buchanan.

But unlike judges, presidents have political legitimacy, having been elevated to the job through a national democratic process. It takes more than just a judgment of elites for elected legislators to justify removing an elected president whose character and fitness were displayed at length to the voters before his election. Alcee Hastings was removed as a judge by lopsided margins in 1989 for taking bribes, and he appealed over the heads of the House and Senate by running for a House seat in 1992, which he still holds 27 years later. No Congress would want to remove a president who could do the same thing.

Even an overwhelmingly Democratic Congress proceeded slowly against Nixon, reporting articles of impeachment out of committee only as Nixon’s approval rating plunged below 40 percent. Successful pushes to oust governors in recent years — Republicans Eric Greitens of Missouri and Robert Bentley of Alabama, Democrat Rod Blagojevich of Illinois — required their own parties to assure themselves of significant public support for removal. Presidents, however, raise public emotions that governors do not.

The political-legitimacy factor makes Trump’s case more complicated than the others. Johnson and Buchanan were the lamest of lame ducks, in their final year in office and not running for re-election. In Buchanan’s case, his young vice president, John Breckenridge, would be on the November ballot. Nixon and Clinton were barred from running for a third term, or would have been by the time the Senate voted; Clinton’s vice president was his obvious heir apparent. But Trump is slated to face the voters himself next fall. An argument that he is unfit for the job is just as legitimately an argument for that campaign as for an impeachment vote less than a year before Election Day.

Presidents also have constitutional legitimacy: Some powers are properly theirs to exercise, so Congress gets onto thin ice when it moves from oversight to seizing the president’s power. That was what doomed Andrew Johnson’s impeachment: He had no real support among the voters or in Congress, but the articles of impeachment focused mainly on his firing of the secretary of war, and a president who lacks the power to control his own cabinet is no president at all. Multiple Republican senators, despite their loathing for Johnson, refused to vote for his removal. One of Trump’s most potent arguments against impeachment is that Congress is trying to prevent him from exercising presidential control over foreign policy and law enforcement. As it did in Nixon’s case, popular support for impeachment will depend on persuading voters that the issue is Trump’s abusing those powers for personal or political gain, not just using them in ways that Democrats, diplomats, prosecutors, national-security professionals, and other civil servants dislike.

It would be pleasant to believe that presidents could be removed from office on clear evidence of the commission of a crime or abuse of their office, and that Congress has an obligation to do so without regard to politics: fiat justitia ruat caelum, “Let justice be done though the heavens fall.” Like a lot of twenty-something conservatives at the time, I believed that about Bill Clinton. There was enough evidence to persuade 50 senators to vote to remove Clinton from office for obstruction of justice. But evidence of felonies wasn’t enough for the American public, especially given that the crimes at issue seemed not only removed from the core of Clinton’s public responsibilities but also more or less the sort of thing people expected from Clinton when they elected him. The simple reality of American politics and the Framers’ constitutional design is that presidents do not get removed from office unless and until there is a strong bipartisan majority of voters that wants them to be.

The politics always matters.

Who, Whom?

The question of the day, therefore, is not “Should Trump be impeached?” any more than the question of 2016 was “Should Trump be president?” There is no single question of the day; there are multiple choices faced by the various parties involved.

First up are the House Democrats, who hold the necessary majority to impeach without a single Republican vote. Should they impeach Trump? Must they impeach him?

The second is the easier question. The House does not act as a judge in impeachment, charged with following the law without fear or favor; it acts as a prosecutor, and a prosecutor always has discretion to decide against bringing charges. If House Democrats think it politically wiser not to impeach Trump and wish to instead present their case directly to the voters next November, that is an entirely legitimate choice. They should only feel compelled to impeach before the election if they truly believe that Trump is an imminent danger to the country and that replacing him with Mike Pence is an outcome that will remove that danger. For all of their heated rhetoric, few Democrats or progressive pundits seem willing to admit to the latter. The gradual pace at which they have approached impeachment suggests that they do not believe it, or at least that they are considering the politics of impeachment.

The politics includes the elephant in the room: Removing Trump requires 20 Republican votes in the Senate, and as of now, it would be surprising if there were more than one or two. Unless there is a major change in how Senate Republicans evaluate the politics of removing Trump from office, House Democrats should assume that impeachment will be a political gesture that leaves Trump in office — one that, quite possibly, they can get away with only once.

Sending political messages for partisan gain is not always a bad plan. From a purely political standpoint, the most vocal elements of the Democratic base require the party to be seen moving forward on impeachment. But politics requires a careful balancing act: Many of the freshman House Democrats from previously Republican-held districts, largely in the suburbs, were elected specifically to hold Trump to account, but they also answer to voters who are benefiting from good economic times and do not want to see a hasty partisan rush to impeachment. Republicans underperformed in Congressional elections in 1998 and 2000, and only won the White House in 2000 by nominating a candidate who steered far clear of Clinton’s impeachment and often implicitly distanced himself from his party in Congress. With Elizabeth Warren and even Joe Biden now calling for impeachment, Democrats will not have that as a fallback option.

That means that what makes the most sense, for now, is for House Democrats to use a public investigation to try to build voter support for impeachment. That is what worked against Nixon, while the independent-counsel law hobbled Republicans from doing the same against Clinton by building the case and calling the witnesses behind closed doors. (The tepid political impact of the Mueller probe undoubtedly resulted in part from the same closed-door, long-written-report dynamic.) Politically, such hearings can double as a Democratic campaign-messaging exercise. Of course, the more the impeachment process is designed to drive the Democrats’ campaign message, the less incentive any Republican has to assist it, no matter his or her views of Trump. That goes double for the Democrats’ desire to force a Senate vote that can be used against vulnerable Republican senators such as Cory Gardner and Martha McSally.

If Democrats vote to impeach Trump — and it is hard, at this stage, to see how they will be able to resist doing so — what should Senate Republicans do? There is little doubt that a significant number of them privately feel that both the country and the party would be better off with steady, stable, low-key Mike Pence in the job than with Trump. But how do we get there from here?

From the perspective of a Senate Republican who believes that Trump has committed genuinely impeachable offenses, is unfit for office, and should be replaced by Pence, there are two possible outcomes from voting to remove him. One is that the senator votes to remove Trump, but Trump is acquitted. Politically, this could well spell the end of the senator’s career. Only perhaps Mitt Romney and Lisa Murkowski could survive alienating Trump supporters by taking such a vote, and doing so would make them pariahs in further dealings with the White House. This is doubtless why even Romney is reportedly working behind the scenes to build a large enough coalition of senators to actually remove Trump. It is worth noting that not a single Democratic senator voted to remove either Clinton or Andrew Johnson. Joe Lieberman, who was the leader of the frown-with-concern caucus of Democrats in 1999, voted to keep Clinton and landed a spot as Al Gore’s running mate on the next national ticket.

The other possible outcome is that the Senate actually removes Trump. But what then? Is Trump likely to go quietly, endorsing Pence’s re-election? Would he stay on the ballot in the primaries, or run an independent spoiler campaign? Teddy Roosevelt, a far more public-spirited man than Trump, ran against his own hand-picked successor in 1912 and shattered the Republican coalition. That resulted in the election of the awful, racist Woodrow Wilson, the father of American progressivism, living constitutionalism, and the administrative state. Hamilton destroyed his own party and his own career by openly arguing against the re-election of John Adams, resulting in six terms of one-party rule. And if Trump were impeached, removed, and renominated in a revolt against his removal, there remains the chance that he would actually get elected again, and Republicans would have even less hope than they do now of restraining his worst impulses. This would also be the worst-case scenario for Democrats, since voters motivated to rally around Trump against a “coup” are unlikely to vote down-ballot for the opposing party.

[ETA: The Senate can, under the Constitution, debar the president from serving again if it votes to remove him, although it is not required to. It cannot, however, stop him from throwing a loud political tantrum from the sidelines that has a similarly disruptive effect on his party.]

I confess my own biases: I would love to see some solution that enables Republicans to move beyond Trump in time for the 2020 election. Twenty years ago, I would have argued for ignoring the politics, damn the torpedoes. But that argument died in 1999. Political reality is a stubborn thing. For Democrats, though impeachment carries risks — potentially grave ones, if they are perceived as overplaying their hand — the partisan logic of holding hearings and dumping something in the lap of the Senate is at least arguable. But for Senate Republicans, it is hard to see how voting to remove Trump is a better political judgment — for themselves, for their party, for the country — than leaving his fate to the voters. The Founding Fathers, who saw political verdicts on the removal of presidents as the lesser of two evils and designed the system to require a political consensus across two-thirds of the Senate, would have understood.

Something to Consider

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Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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