Why Impeachment Won’t Work

A piece I wrote for Commonweal last summer began: “To impeach, or not to impeach, that is the question.” And so it is still. It’s remarkable that impeachment talk has been in the air since the very outset of Donald Trump’s presidency. Among his opponents it flares up again and again, like an opportunistic illness. Or is it an opportunity?

The first big push came in January 2018, following the publication of Michael Wolff’s Fire and Fury, with its lurid picture of White House dysfunction. The run-up to midterm elections ignited a second impeachment clamor, as Democrats debated its utility and Republicans used the prospect to scare voters, warning that Democrats would quickly impeach Trump if they won the House. In the New Yorker, Jeffrey Toobin predicted that impeachment could happen “if Congress has the evidence, and the will, to proceed.” And now, the release of the Mueller report on April 18 has triggered the third burst of impeachment energy among Democrats emboldened after the midterm elections. Is the evidence there—and the will?

Among Democrats, the conversation pits grassroots against the establishment—with the former boosted by a cohort of new young progressives—in a back-and-forth that’s been playing out almost daily in the pages of the New York Times. It began in March, when House Speaker Nancy Pelosi reaffirmed her longstanding reluctance to consider impeachment. Still awaiting the results of the Mueller investigation, she declared herself “not for impeachment,” calling it “so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.” With a slyly self-protective rhetorical flourish, she added, “He’s just not worth it.” In a Times analysis, Emily Cochrane and Peter Baker noted that “In throwing cold water on the idea of impeachment, Speaker Nancy Pelosi in some ways was simply offering a clear-eyed assessment of the state of politics today in the nation’s hyperpolarized capital: There are not enough votes to convict and remove President Trump from office.” But they argued that in refusing to contemplate impeachment unless conviction is likely, “Ms. Pelosi may also be setting a far-reaching new standard with implications long after Mr. Trump leaves office.”

They also noted that Pelosi’s logic effectively places the decision to impeach in the hands of the president’s own party. And that is something that many Democrats—especially the newly elected young progressives—can’t stand. “I disagree with her,” California Rep. Juan C. Vargas said after Pelosi’s preemptive remarks. “The Constitution is clear: If there’s an impeachable offense, we should impeach the president.” Other Democrats have been less decorous. “We’re going to go in there, and we’re going to impeach the motherfucker,” vowed Rashida Tlaib, newly elected Democrat from Michigan. And in mid-March, former Hillary Clinton adviser Philippe Reines weighed in with another response to Pelosi, explaining “Why Impeaching Trump Is ‘Worth It’”. Acknowledging that the attempt to impeach Bill Clinton had backfired against the Republicans, and that today’s Democrats are leery of similar consequences, he asserted that with twice as many Republican senators up for reelection in 2020 as Democrats, Democrats are well positioned “to benefit, or at worst not suffer, politically” from impeachment.

Such reflections highlight the conflict between principled and prudential considerations among Democrats. Do we impeach a president because it will help us, or because it is right? Covering the 2020 presidential campaign trail, the Times reported that most Democratic candidates have been “tentative” about impeachment—taking the temperature of voter sentiment while trying to walk a tightrope between the party’s new progressive firebrands and its leadership. “For now,” the article observes, “most of the candidates feel no pressure to demand Mr. Trump’s impeachment because they simply do not hear a mass clamoring for it on the campaign trail.” The latest reports continue to suggest that Democratic voters place impeachment low on their list of urgent priorities; at town-hall meetings across the country, audience members asked their representatives about health care, immigration, and the 2020 election—but hardly at all about impeachment.

So it is not surprising that candidates such as Pete Buttigieg and Beto O’Rourke have waffled, professing their “personal” desire to see Trump impeached while emphasizing the political complexities. Elizabeth Warren alone has taken an unambiguous stance, declaring that “To ignore a President’s repeated efforts to obstruct an investigation into his own disloyal behavior would inflict great and lasting damage on this country, and suggest that both the current and future Presidents would be free to abuse their power.” Her remarks raise the question of civic obligation: If a president has committed an impeachable offense, should he not be impeached? The same day Warren tweeted her salvo, Times columnist Charles M. Blow, an implacable Trump foe, made the case for impeachment. Calling the Mueller report “damning,” he dismissed the objections put forward in what he calls “the ‘failed impeachment’ theory,” and countered that in his view, “there is no such thing as a failed impeachment.” Noting that none of the three prior instances of presidential impeachment or impending impeachment in U.S. history ended in a conviction, Blow called an impeachment vote in the House “the strongest rebuke America is willing to give a president,” and observed that “I can think of no president who has earned this rebuke more than the current one.”

The argument among Democrats makes frequent recourse to the two presidential impeachments of recent decades. Looking back at the impeachments of Nixon and Clinton, Times reporter Adam Liptak notes that in the wake of the Mueller report, Trump has cited Article II of the Constitution and insisted that since there were “no crimes by me, no misdemeanors...you can’t impeach.” Liptak asserts that Trump “failed to take account of what the framers meant by ‘other high crimes and misdemeanors.’” Quoting constitutional scholars who hold that offenses contained within that catchall formulation must match treason and bribery—the two specifically adduced impeachable offenses—in gravity, Liptak poses the question: “Does Mr. Trump’s conduct, as described in the Mueller report, clear that high bar?” His answer: “The two most recent impeachment proceedings...indicate that it could.”

By way of supporting argument, he cites constitutional scholars’ belief that obstruction of justice—the corrupt use of presidential power to thwart investigations—reaches the threshold for impeachment, and ticks off numerous examples of similarities between Nixon’s actions and the ones portrayed in the Mueller report—right down to the resignation of White House counsel Don McGahn, who expressly invoked a parallel to the Watergate investigation when he refused to fire Mueller, saying that he did not want to be “Saturday Night Massacre Bork.” Liptak notes that conviction in the Republican-controlled Senate is highly unlikely, but that “if the question is one of constitutional principle, there is reason to think Mr. Trump was a little too sanguine in his analysis.”

What is different, of course, is the context. The facts on the ground may suggest extensive similarity between the lawlessness of Nixon and Trump—but that ground itself, where the facts are being handled, has changed drastically. Senate Republicans today probably would not move against Nixon. And Democrats remain wary and divided. A new Times survey of how House Democrats view impeachment registers the split. Freshman Democrat Mary Scanlon of Pennsylvania, vice-chair of the Judiciary Committee, admits that “If we’re just looking at the facts, then we have the same facts that led to the impeachment of Richard Nixon.” But, she adds, there is “also a political calculation. What are the politics of initiating an impeachment if the Republican-led majority in the Senate doesn’t believe that this type of conduct warrants impeachment?” On the other side, four-term California Democrat Jared Huffman states that “if that president cannot face impeachment, then part of our constitutional responsibility is just a bunch of dead words.” He dismisses the worries of fellow Democrats as “self-serving readings of the tea leaves by folks who frankly don’t want to step up and make difficult decisions.”

Can you guess which Democrat is from a swing state?

Pushing back against the notion that impeachment might harm the prospects of the Democratic Party, Joe Lockhart, former White House press spokesman under Bill Clinton, offers the view that “leaving Donald Trump in office is not only good politics—it is the best chance for fundamental realignment of American politics in more than a generation.” Lockhart’s argument is that Trump is actually destroying the Republican Party, and impeachment might impede the process. His advice is to stay calm and have faith that over time, the hallmarks of Trumpism—relentless tax-cutting for the wealthy, “rampant xenophobia and race-based politics,” and a brazen and reckless denigration of the institutions of government—will prove massively unpopular with the rising generation of voters. Another two years of Trump may rankle, but will eventually spell “electoral doom” for the GOP. “I fully understand the historical imperative of holding the president accountable for his behavior,” Lockhart writes.

But I believe there is something bigger at stake. Allowing Mr. Trump to lead the Republican Party, filled with sycophants and weak-willed leaders, into the next election is the greater prize.... Trumpism equals Republicanism as long as Donald Trump is at the top of the ticket. And a real shift to progressivism in America will be delivered by a devastating rebuke of the president and his party, a rebuke that will return control of the Senate and state houses across the nation. Politics is always a gamble—and this is the best bet we’ve had in a long time.

Recently, journalist Elizabeth Drew put forth the opposing view in an op-ed titled “The Danger of Not Impeaching.” Drew argues that Congress must hold the president to account, no matter the outcome or the consequences. Calling the concerns of the Pelosi wing “understandable,” given that “impeachment could invite a wrenching partisan fight; render the party vulnerable to the charge that it’s obsessed with scoring points against Mr. Trump; and distract Democrats from focusing on legislation,” she argues that the alternative is worse. Even if Senate Republicans don’t vote to remove Trump, she holds, “a statement by the House that the president has abused his office is preferable to total silence from the Congress.” To support this contention, Drew invokes the Founding Fathers:

Madison and Hamilton didn’t say anything about holding off on impeachment because it would be politically risky. It’s hard to imagine they’d put political convenience on the same footing as the security of the Constitution. And the Democrats who prefer to substitute the 2020 election for an impeachment fight don’t appear to have considered the implications if Mr. Trump were to win: Would that not condone his constitutional abuses and encourage his authoritarian instincts?

Drew’s question is the same as Lockhart’s—pain now, or pain later?—but her answer is a mirror opposite to his. Democrats in Congress may be able to avoid a nasty, rancorous political fight now, but if they do, they will pay for it in the long run—not politically, but rather in the final reckoning of their “feckless” behavior by that ultimate judge, the future. Drew warns, “They’ll have to answer to history.”

Readers of my essays on Trump over the past four years know that I’m hardly ambivalent about either the man or his presidency: I regard both as nightmarish. But I have been ambivalent about impeachment as a means of deliverance from that nightmare. And I still am. Ending Trump’s presidency is an important goal, but it’s not the only goal. There is the matter of trying to repair our civic and political discourse. If I were convinced that impeaching Trump would assist in that repair, I would be for it. But I’m worried it might do the opposite. The fabric of that discourse has already been severely abraded by every sort of conspiracy theory, factual obfuscation and denial, partisan recrimination, routine assertions of coup attempts by the so-called “deep state” in the form of rogue government agencies or the FBI trying to bring the president down, and on and on. National division is broader and more rancorous than it’s been in decades.

Obviously liberals and progressives were disappointed that the Mueller report did not deliver a screaming-headline announcement of malfeasance. But some people who have actually read the document have little doubt that Mueller believes there was both collusion and obstruction. One of them, Gerry Connolly—Democrat of Virginia and a member of the House Committee on Oversight and Reform—said recently on NPR that Mueller felt constrained by his view that a sitting president could not be indicted, but “left a trail of breadcrumbs of criminal activity”—both for Congress and for future prosecutors. By including what some view as ten instances of likely obstruction of justice, the Mueller report created what Elizabeth Drew calls “clear openings, perhaps even obligations, for Congress to act.” Plenty of Democrats agree—including Jerrold Nadler, who after long equivocation seems to be coming around.

Yet while Trump may be supremely impeachable, that doesn’t mean it should happen. There are problems on either side. The arguments against impeachment were put forward succinctly by political scientist Greg Weiner in an op-ed last year. Anticipating a Democratic takeover of the House, Weiner called for “the kind of political judgment concerned with the public good, not with gaining electoral advantage” and appealed to Congress to treat impeachment “with a gravity that will reconcile the public, including Mr. Trump’s base and his most intense critics, to the answers.” Good luck with that. The problem with Weiner’s logic is that it makes Trump permanently unimpeachable, since his supporters will likely never be reconciled. Yet I agree with his implicit point—namely, that whether successful or not, if the attempt to remove Trump proves a 100 percent partisan effort, it will seal a capsule of toxic resentment—a big one—within the body politic that could further poison our society for decades to come.

While I appreciate the impassioned appeals to principle, I can’t help but fall back on political and strategic questions, such as who would benefit most from an unsuccessful impeachment. Trump, who would go around boasting about how the Democrats had thrown him into the lion’s den, and he had slain the lion? Or Democrats, from the weeks or months of public airing of the president’s lawless actions? I don’t agree with those who say that going down this road is a good bet. Better to let him be voted out of office in a 2020 tsunami whose approach we saw in the premonitory wave of Republican defeats last fall, and the record number of Republican retirements before it. My own view is that the cleanest, most resounding, and most useful verdict is the one supplied at the ballot box. Amid all this hazy talk of what to do about Trump, I find myself zeroing in on the one judgment that a majority of Americans might understand: he lost. Let’s shelve all the impeachment action and focus on making that happen in 2020.