May 9, 2019 | Reading Time: 4 minutes
Impeachment Without Conviction? Yes
Trump's fate is less important than "the message sent."
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You’ll notice that the debate over impeachment has picked up pace.
That’s because the president is neither wily nor shrewd.
Donald Trump could have given the Congress what it was asking for in dribs and drabs. He could have pretended to act in good faith while stringing along members of the House Judiciary Committee. Instead, the president opted for “fighting all the subpoenas.” The White House has said the entire Mueller report is protected by executive privilege. It isn’t. Trump has gift-wrapped a rationale for impeaching him.
Still, there’s the matter of the Senate. You know the argument: there’s no point in impeaching Trump if you can’t remove him. I have argued that this presumes more than we should. There are now at least a dozen Senate Republicans on the fence. Televised scrutiny of systemic presidential lawlessness would likely push more to the other side. That, of course, presumes that Mitch McConnell would allow such a vote. And that, as you’ve guessed by now, presumes more than we should. If anyone can be accurately called the gravedigger of democracy, it’s the Senate majority leader.
If Trump does not face consequences, every Republican presidential candidate will seek and accept foreign help to win.
There’s room to debate whether McConnell really would prevent a Senate vote for removing Trump. We can’t know what public opinion, on which everything hinges, would be like after the House concluded its part of the process. But let’s assume this is correct, that McConnell won’t expose his conference to the political danger of voting for or against the president. What then? Would impeachment still worth it?
Keith Whittington says yes.
For Lawfare, the Princeton political scientist wrote Wednesday that impeachment without conviction is a worthy enterprise if done for the right reasons. What are the wrong reasons? Whittington lists impeachment without conviction for “abusive behavior,” “basic incompatibility,” and exploitation of powers for “personal gain.” He says these, if the process is to have real meaning, require removing the offending official. If he can’t be removed, Whittington says, the process “has failed.”
If, however, the point is less to remove an offending official “than to establish or reinforce the proper expectations of officeholding, the ultimate fate of the impeached officer is of less importance than the message sent by the impeachment.” He adds:
Impeachments can be, and have been, a vehicle for constructing, consolidating and reinforcing an important set of constitutional norms. They are a means for asserting that some behavior is beyond the pale. An impeachment can send the strongest possible message that some behavior is to be condemned and should not be imitated by others—that even though a high government official has engaged in some behavior, this behavior should be understood as disgraceful.
I find Whittington’s argument attractive because it knits together two things I’ve struggled to knit—the moral case for impeachment, which is clear to me, and the political case, which isn’t. Whittington manages to wed them, asserting that the moral case is the political case as both are foundational to the US constitutional order.
What behavior should not be imitated? The most obvious is Donald Trump’s blocking of the Congress from having access to a full and unredacted Mueller report. To be clear, the issue here isn’t mere access. It’s power, authority and political legitimacy.
The US House is the most representative body of the government (in theory; let’s save gerrymandering for another time). The framers designed the chamber to be closest the American people, who are the ultimate source of political legitimacy. In preventing the House from having access, the president is saying, in effect, that he does not recognize the authority of the people, an untenable position in any republic.
In impeaching the president without removing him from office, the House would be sending the “strongest possible message that some behavior is to be condemned and should not be imitated by others.” The Congress, which is the first branch of government in order of importance, will not be denied its constitutional authority.
As I wrote last week, that’s a good hill for the Democrats to die on. (They won’t die, of course; they would likely invigorate party and non-party actors to take action, which is all the better for democracy.) But I think there’s a better hill. Yes, it’s Russia.
If Trump does not face consequences for accepting assistance from foreign saboteurs in defeating his opponent, every single Republican presidential candidate from here on out will do the same. That’s not just untenable. That’s intolerable. It smacks of treason. Of all the good reasons to impeach a president with the goal of sending a message that some behaviors are beyond the pale, this one is the best one.
IN CASE YOU MISSED IT
Barr Is Asking for Punishment (public)
The Democrats should oblige him.
A Good Hill for Dems to Die On (public)
Trump is not a monarch. He must be held accountable.
Hammer the Mafia-State President (public)
Hammer him till there’s no room to talk about anything else.
Dems Must Fight (public)
But do it in ways that bring the public with them.
Actually, Impeachment Terrifies Trump (public)
Some say he wants it. No way.
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John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.