NRPLUS MEMBER ARTICLE I n 1977, Senator Daniel Patrick Moynihan appended a statement to the annual report of the Senate Select Committee on Intelligence. The committee, he said, had been properly concerned with the intelligence community’s abuses, which “should be pursued — almost — regardless of the consequences.” The reason for the “almost” was that the maxim “let justice be done though the heavens fall,” Moynihan wrote, “ought to be more an abstract than an applied principle of government.”
That counsel is worth considering as the House of Representatives votes on articles of impeachment against President Trump. A mood of inevitability has crept into Democratic rhetoric on the topic. In a statement announcing the articles that was replete with commendable affirmations of long-dormant congressional authority, Speaker Nancy Pelosi said Democrats were proceeding because “the President leaves us with no choice” but to do so. When the articles were introduced, Representative Jerrold Nadler of New York said Democrats “must take this solemn step today.” At least five other Democrats have employed the “no choice” mantra.
That goes too far. Trump might have invited Democrats to act when he flooded the public record with both claims of constitutional invincibility and evidence that he pressured Ukraine for political benefit. He has made impeachment defensible. But he has not made it necessary. The question the House must confront today is not whether impeachment is compulsory but rather whether it is prudent.
Critics and defenders of the president can make the arguments either way. But practice is precedent, and it is essential that Congress embrace the fact that impeachment is a matter of prudence whose frame of reference should be civic health, not merely presidential conduct. Otherwise the bar for future impeachments could be set too high (only a literal crime will be enough) or too low (future legislators will be encouraged to do justice even if the heavens fall).
As Moynihan suggested, that latter idea works better as poetry than as a statement of governing principle. In reality, it is doubtful that many of the nation’s 45 presidents have made it through their tenures without breaking the law. That does not excuse President Trump’s conduct. But the question impeachment presents is prudential: It is not merely whether Trump is guilty but also whether the nation will be better off — now and in the future — if he is put on trial and removed.
Edmund Burke, the great modern theorist of prudence, famously refused to consider any proposition “in all the nakedness and solitude of metaphysical abstraction. Circumstances . . . give in reality to every political principle its distinguishing colour, and discriminating effect.” Burke meant that most of politics operates in the realm of choice, not necessity. While choices should be principled, they must also be prudent, which means political actors must consider their consequences in addition to their rigid justice.
Presidents are not monarchs, but what Burke wrote about dethroning kings nonetheless applies to impeachment: It is “a question (like all other questions of state) of dispositions, and of means, and of probable consequences, rather than of positive rights.”
By contrast, an overly legalistic account of impeachment that places the evidence on autopilot — similar, ironically, to the style of argument that opponents of impeachment such as Alan Dershowitz and Jonathan Turley have used to shift attention from political offenses and toward criminal ones — leaves little room for consideration of consequences.
A prudential judgment as to the consequences of impeachment must consider several factors in addition to presidential innocence or guilt. One is the danger of a president’s being allowed to abuse his office with impunity. Another is the hazard of a partisan impeachment that would harden divisions in an already polarized nation. And there are more, from the fact that an election looms in which these questions can be litigated to the evidence that Trump attempted to use the nation’s foreign policy to manipulate that election.
These are not easy questions to answer, nor should they be. But little good is accomplished, and much is risked, by suggesting that the president rather than the Congress is responsible for the choice. That perspective feeds our inflated and narcissistic concept of the presidency and strips legislators on both sides of the nobility of and responsibility for having made a prudential choice.
The difficulty of the choice is also a reason to slow the proceedings. Passions are the enemy of prudence. If Trump is impeached and removed, it should be on the most careful consideration, not a rush to judgment — even if that judgment is abstractly just. That is not a case for artificial protraction of the proceedings. A case for or against impeachment can be made solely on the objective public record as it stands. Trump’s repeated call to “read the transcript” of his call with Ukraine’s president can make the case either way.
The point of slowing down is not to investigate further but rather to agitate less. Delay serves constructive purposes, like allowing passions to cool, coalitions to form, and compromises to be struck. With the benefit of time, some Republicans might consider the president’s conduct from a less defensive and partisan posture. Perhaps some Democrats would conclude that the abstract justice of impeachment is not worth its civic costs. It might even be reasonable to hope for some crossover votes from either side in the Senate, whose institutional culture has traditionally encouraged them.
Regardless of those scenarios, Trump can be impeached. Arguably, he should be. But it is a mistake to believe he must be. The decision should not be inevitable: The point of prudence is that Congress must own it. Representatives should welcome the grave responsibility before them, which is not to do abstract justice but rather to make a prudential judgment about the civic health of a republic that increasingly seems — from whichever direction one views it — to be ailing.