Magazine | October 28, 2019, Issue

Rush from Judgment

(Michael Melford/Getty Images)
Our distorted lens on impeachment

Tom Bossert, a former homeland-security adviser to President Trump who now analyzes the news for ABC, went on the network’s show The Week a few days after Nancy Pelosi announced that the House was going to consider impeachment.

Bossert made a number of points in defense of his old boss. Whether Trump had abused his power by making aid to Ukraine contingent on its government’s investigating Joe Biden, he said, had been “far from proven.” The president had ultimately provided both money and missiles to Ukraine after holding them up.

Bossert also said, however, that he was “deeply disturbed” by Trump’s phone call with the Ukrainian president, Volodymyr Zelensky. Trump’s hiring of Rudy Giuliani, he said, had made impeachment more likely. He said that Giuliani and others were feeding Trump a “debunked conspiracy theory” in which Ukraine was involved in hacking the Democratic National Committee’s server in 2016. “It sticks in his mind when he hears it over and over again,” even though “it has no validity.”

Bossert’s specific criticisms of Trump and his advisers occasioned some comment, and he felt it necessary to clarify that he opposes impeachment. What did not draw much attention were some of the implications of Bossert’s remarks. The former aide was saying that the president is incapable of recognizing nonsense when it is put in front of him, presumably even after people like Bossert have explained why it’s nonsense. It is difficult to imagine the former aide of any other president saying such a thing, let alone while apparently intending no insult. It is impossible to imagine a former aide’s saying such a thing and having it be ignored.

It was ignored because President Trump gives us a lot of news to talk about, and because it was old news. Bossert did not reveal anything we could not pick up from reporting on the Trump White House or from the president’s public remarks. Trump has shown a tolerance for and attachment to conspiracy theories in the past, whether concerning the birth certificate of President Obama or the alleged vote fraud of millions of illegal immigrants. He has selected advisers with terrible judgment: He frequently tells us so himself, after they have become former advisers.

A similar point went unremarked in all the criticisms of the Trump–Zelensky phone call. The memorandum of the call released by the White House didn’t just show Trump urging the Ukrainian government to look into a conspiracy theory and investigate the Bidens. Delete those sections of the call and what’s left of Trump’s end of it is rambling. Trump doesn’t pursue or even mention any national interests of the United States.

The Ukraine scandal is thus turning up new evidence bearing on Trump’s fitness for the presidency, even as that subject recedes into the background. Instead, in the foreground, have been matters of law. Democrats are saying that the president cannot be above it, Republicans that he cannot be below it, either.

As Democrats prepare to impeach Trump, one of their leading theories is that he broke the law by seeking a campaign contribution, in the form of valuable information, from a foreign government. The president’s defenders appear to be on solid ground in saying that this theory would render a lot of normal political behavior illegal and would have disturbing implications for the First Amendment.

It’s also an illustration of the limits of legalism in politics. What’s disturbing about Trump’s conduct has almost nothing to do with the campaign-finance laws, and an arguable violation of those laws would not by itself come close to making a compelling case for removing an elected president from office.

The Constitution authorizes impeachment and removal of a president in cases of treason, bribery, and “high crimes and misdemeanors.” To modern ears, that language may lend itself to a legalistic interpretation. But while scholars disagree about the scope of the impeachment power, most of those who have studied the question agree that the Founders did not intend “high crimes and misdemeanors” to refer simply to the violation of statutes.

Some lawbreaking does not rise to the level of impeachment, and some conduct can be impeachable without breaking a law. James Madison mentioned “incapacity, negligence, or perfidy” as impeachable presidential traits. The first federal official to be impeached and removed from office, Judge John Pickering, was found to have had too low a character for his position. If in the 1990s Bill Clinton had announced that he was going to start a harem in Saudi Arabia and run the government from there, the Congress would not have needed to consult the U.S. Code to begin impeachment proceedings. (That’s an adaptation of an example from Charles Black’s 1998 Impeachment: A Handbook.) 

The purpose of impeachment is, in short, to protect the country from serious abuses of power and derelictions of duty. Mere political disagreement is not a sufficient reason for Congress to remove a president; nor are mere mistakes by the president. So much we can glean from the Constitutional Convention’s rejection of “maladministration” as a ground for impeachment and removal.

Beyond that there is room for disagreement. But if the meaning of “high crimes and misdemeanors” is not fixed, the procedural bar for removal is, and it is high. A majority of the House and two-thirds of the Senate must agree that the president’s conduct has made his continued tenure in office intolerable.

Removing a president therefore requires a supermajority that is highly unlikely to materialize and that Democrats are barely trying to create. President Trump’s defenders have not made a strong case, or a unified case, against the allegation that he has abused his power. But they don’t need to make much of a case for keeping him in office through his term: Our constitutional design powerfully militates in that direction, and all Trump needs in order to beat back impeachment is to stave off a collapse of his political support.

Congressional Republicans grasp this point. They know that their political fates are tied to his in the next election. They can’t break free. Most of them also know that vocal defenses of him are likely to be undermined by the president’s next tweet. Hence their preference for silence.

So we have quickly reached a stalemate. Washington, D.C., has settled into the view that impeachment is likely to occur and conviction not to. It appears that we are likely to spend the next few months talking about everything but the political judgments the process calls for.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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