Right Turn discussed via email with Laurence A. Tribe and Joshua Matz their new book about impeachment, To End a Presidency: The Power of Impeachment. The first part of that conversation appeared on Right Turn on Monday. The second part of the conversation appears below.
Is there a danger in normalizing impeachment talk?
This is a major theme of our book. The normalization of impeachment talk has created a massive boy-who-cries-wolf dilemma, diluting impeachment’s potency as a weapon of last resort in cases of genuine national peril. To many Americans, impeachment threats are little more than a standard rhetorical weapon in our partisan civil war. Recognizing this development, presidents and political entrepreneurs have aimed to benefit from impeachment talk by using it to rally their base, raise money, distract attention, and condemn opponents. In these respects, a surfeit of impeachment talk has raised the temperature of political disagreement, thus encouraging polarization and tribalism without actually imposing restraints on the president. The perverse result may be a push toward further democratic decline, exacerbating the very circumstances most likely to generate a leader so despotic as to deserve removal through impeachment.
Some of the problems we face (e.g., President Trump’s receipt of foreign emoluments) arose because Congress didn’t do its job. Is impeachment proper when a past Congress didn’t even try to hold the president to the letter of the Constitution?
It depends on the circumstances. Here, the Constitution forbids the president from accepting foreign emoluments unless he receives congressional consent. Congress has not consented. Accordingly, the president’s receipt of foreign emoluments is illegal and injured persons may properly seek a remedy in federal court (we represent the plaintiffs in some of those cases).
The question of impeachment is more difficult. Some commentators think it would be unseemly for Congress to remove a president for illegal conduct that it could have done more to prevent (or that it could have authorized). That’s a fair point, as far as it goes. But congressional inaction isn’t a tacit warrant for the president to break the law, nor is it a “get-out-of-jail free” card in an impeachment hearing. Moreover, Trump’s receipt of foreign (and domestic) emoluments is part of a broader pattern of corrupt, nepotistic and financially self-interested dealings. This conduct has undermined the integrity of U.S. public policy and inflicted grave damage on our democratic system. To the extent there is any doubt about the propriety of impeaching Trump solely for receipt of foreign emoluments, we believe that a stronger article of impeachment would accuse him of implementing kleptocracy. Although any such article would require extensive factual investigation and legal debate — and we are not yet certain whether removal on that basis would be justified — it is a better framing of Trump’s wrongdoing.
If you are a member of the House and want to start thinking about whether there are grounds for impeachment where do you begin?
You should start by seeking answers to a few key questions: why did the Framers create an impeachment power; how has it been used and abused; what are the risks of action and inaction; and what decisions must I make throughout an impeachment process. Once you have a grip on the power you’re exercising, you need to learn the facts — not as presented on cable TV or in op-ed columns, but as identified by a respected, thorough and impartial investigator. That might mean trusting a special counsel or the House Judiciary Committee, or it might require the creation of a special bipartisan House committee. At all stages of this process, you must do your best to act with principled impartiality and seriousness of purpose. That doesn’t mean ignoring your constituents, your political party or your own political vision. But it does require a greater measure of caution and high-minded statesmanship than you bring to the rest of your work. You must constantly ask yourself: “Would I be approaching this the same way if I had the opposite view of this president’s political ideology and party affiliation?” And in the end, you must decide if the president truly poses a continuing threat to the Republic.
Is there utility in impeaching when there is no prospect of removal?
Generally, no. Impeaching the president is a momentous act of censure by the House. In some imaginable circumstances, sending that message alone might be a worthy endeavor. But in most cases, impeaching without any prospect of removal would be irresponsible and self-defeating. Forcing the Senate to hold a trial, with the president in the dock and the chief justice presiding, is exceptionally disruptive. It derails progress on important domestic policies and may unsettle our position in the world. It also unleashes political energies that wouldn’t simply dissipate at the end of the process. Moreover, if the goal is to send a message of disapproval, that objective could be undermined if the Senate acquits the president on all articles of impeachment. In that event, the president would surely claim vindication, decry the impeachment as a witch hunt, and emerge from the ordeal emboldened to abuse his powers even more blatantly.
So based on what you know, are there already grounds for impeachment? As a political matter, would impeachment be wise?
On the basis of what is already known, our book enumerates several potential grounds for impeachment: (1) abuse of the pardon power; (2) imposition of kleptocracy; (3) obstruction of justice; (4) failure to protect the nation from foreign interference and cyberattack; and (5) possible conspiracy with foreign powers. To be clear, we are not yet convinced that it would be proper to impeach on any of these grounds. The evidentiary record remains underdeveloped or inconclusive on key points, and it is surely possible that a comprehensive view of the relevant facts would negate a case for impeachment. In any event, as we emphasize throughout the book, proof of potential “high Crimes and Misdemeanors” is the beginning of the story, not the end. We currently lack a national, bipartisan consensus to remove Trump from office. Further, the risks of attempting a divisive impeachment at this moment are painfully high. The key question, in our view, is how best to restrain Trump and undo the damage he has caused to our democratic system. In answering that question, it is hardly self-evident — at least, at this point — that advocating impeachment is the savviest or most effective path forward.