Increasingly, the Trump Presidency feels like a prolonged visit to a malevolent dentist’s office. Donald Trump continues to expose and prod our institutional cavities, such as an Electoral College system that enables the loser of the popular vote to become President or an impeachment process that puts a judicial façade on an inherently political process. If there is any redeeming value in this stressful period of American history, we can only hope that it will force us to think more seriously about reforming problems in our initial constitutional design.
This is the third significant effort at removing a President through impeachment since World War II. We have known for a long time that the impeachment rules are both under-specified and vulnerable to manipulation. Past efforts aimed to improve the impeachment process by fixing side issues such as the role of independent investigators. But Trump has gleefully exposed a deeper problem: If impeachment is determined by elected officials, then it inevitably becomes an exercise in political judgment and power, especially in an era of partisan polarization. And if that is the case, then why should he or members of his team bother to treat it differently than other Congressional skirmishes?
The impeachment process has judicial features, but it is not an impartial court proceeding. A President can be impeached for high crimes and misdemeanors, but not all crimes are high enough to be impeachable and some argue that not all impeachable abuses of power are actual crimes. By comparison, the grounds for recalling officials at the state and local level are typically set out explicitly in their constitutions and charters. Except for the references to treason and bribery, that is not the case in the U.S. Constitution.
The one constitutionally specified crime that may apply to President Trump, bribery, has a problematic history with respect to political reform. The simplest and most intuitive bribery definition is accepting something of material value (like money in a brown paper bag) in exchange for performing a public action or duty. But even in that seemingly clear-cut case, there are still several difficult elements of proof required for a conviction. When the “something of value” being exchanged is a political favor, endorsement, or campaign contribution, the legal grounds get murkier. It often depends upon the subtlety of the “ask.” The sad reality of democracy is that politicians are always extorting or bribing one another as a means of building consensus. That is the price we pay for allowing for little or no autocratic power in our democracy.
That does not mean that what Trump did is excusable or unproblematic. It is disturbing on many counts. He invited foreign interference into American elections. His actions could have induced false information from a country anxious to give the President what he wanted in return for desperately needed military aid. And Trump temporarily impounded money that was duly appropriated by Congress for a specific purpose and was in effect using taxpayer money to purchase in-kind campaign assistance. But the ambiguity of the U.S. constitution concerning an impeachable offence leaves a hole big enough to cover some pretty ridiculous pro-Trump arguments, at least in the minds of those who are predisposed by partisanship and ideology to look the other way.
The other major impeachment flaw is that the “jurors” are politicians, not citizens subjected to a voir dire examination or judges who are sworn to be impartial. It is not wrong to argue that Adam Schiff, Nancy Pelosi, or other key Democratic figures are conflicted by political motives. But so are all the Republicans. And when the shoe was on the other foot during the Clinton impeachment, the Republicans did not complain about the sham pretense of impartiality in their impeachment efforts. It is ever that way in politics: What seems fair when you are in power seems unfair when you are out of it, and vice versa. If any Democrats or Republicans break party ranks on the House impeachment or Senate conviction votes, it will be at least partly determined by how they think that vote will play out for them in their districts in 2020.
It puzzles many Democrats that Republicans remain publicly loyal to the President on impeachment when so many express their disapproval of him in private. During the Clinton impeachment, however, Democrats defended a President who had oral sex with an intern and lied about it. Both would get you fired in a company or university these days, but the economy was doing well then and lying to protect your marriage did not seem to Democrats at the time to be an impeachable offense—in other words, Democrats in the 90s pretty much wrote the script for Republicans today.
Why? Because Clinton had stitched together a heterogenous coalition of white southern Democrats and coastal liberals to lead the party out of the political wilderness of the Reagan-Bush years. Similarly, Trump solved his party’s Romney problem (i.e. a white, big business party competing in an increasingly diverse electorate) by appealing to white voters who had previously sat on the sidelines or voted for the Democrats with his racialized and “America First” appeals. It is not clear that Pence could do the same, which means that a vote for impeachment is quite plausibly the equivalent of asking Republican politicians to vote themselves out of power. That is a lot to ask of a politician and those who benefit from Republican policies.
Given all this—and given the likelihood that the Senate will not vote to convict—does it make sense politically for the Democrats to move forward with impeachment before Christmas and a trial in January? Usually, savvy political leaders do not knowingly push forward with a vote that they are highly likely to lose. Indeed, that was why Nancy Pelosi initially balked at the idea. The political prospects of doing so now are unclear. No doubt the Democratic base demands it, and the Republican base will likely rally loyally against impeachment the way they did for Brett Kavanaugh’s confirmation before the 2018 midterms. Even so, there are risks for both parties in terms of alienating independent voters and complicating the reelection prospects of their most vulnerable incumbents. Who wins politically is unclear at the moment.
But for me, the most important issue is refuting some of the subversive claims that have been made about Presidential power, positions that both parties may rue someday. At the top of my list is the assertion that congressional subpoenas can be ignored and relevant information withheld because top people in the Administration enjoy absolute testimonial immunity. The District Court found no basis in precedent for this claim. If this claim is not clearly rejected at the highest level, it will undermine the ability of Congress to investigate the Executive Branch and weaken the system of checks and balances. If that means slowing down the pace of the impeachment until the Supreme Court weighs in, it would be worth the wait.
President Trump has unwittingly served to remind us that we adopted the peculiarly fractured form of government that we have in order to prevent the concentration of power in the hands of “wannabe” autocrats. To date, the courts and the states have done a good job of preventing arbitrary executive rule on the domestic front, but Presidents have far fewer checks on them in the realm of foreign policy. Letting members of the Administration hide information or refuse to appear before Congress eviscerates the logic of our political system at a time when social media, foreign meddling, and populist fervor make the concerns of the Founding Fathers about autocracy more real than ever.