But as alarming as the allegations are — that Trump tried to use U.S. military aid as a cudgel to get Ukraine to help him politically — impeachment is still not required. Even now, there remains a narrow (albeit shrinking) space for a constitutionally conscientious legislator to refrain from impeaching Trump, and the House would not necessarily be failing to do its “constitutional duty” if it did not pass articles of impeachment.
The language of the Constitution is discretionary, not mandatory. The House “shall have the sole Power of Impeachment.” The language is framed this way for a reason: The House is empowered to impeach an officer of the government, including the president, if it discovers high crimes and misdemeanors, but it might choose to react differently. The point is not that the House should feel free to ignore abuses of office but simply that impeachment is not the only way to address them.
The House’s own guidebook on rules and precedents
emphasizes that the impeachment power is designed to be a remedy for certain grave ills in the body politic. One important question, then, is whether the country suffers grave ills (in the last presidential impeachment, of Bill Clinton, many critics doubted that the Republican House majority satisfactorily answered that question). If those are identified, that leaves the issue of whether impeachment is a useful remedy. The House might conclude that a president has committed impeachable offenses, but it may not believe that impeachment and removal are in the nation’s best interest. An impeachment inquiry will help reveal what, if any, misconduct has occurred and how serious that might be, but it will require further political judgment to decide how to respond. Through his own actions, Trump has strengthened the case for impeachment as justified and necessary, but there remains some room for doubt.
Most obviously, it is not clear that Trump would be convicted in the Senate. Impeachment requires only a simple majority in the House, so the decision to impeach is a conversation the Democrats can have among themselves. Conviction on articles of impeachment and removal from office require the support of two-thirds of the Senate, which means persuading a significant number of Republicans. If removing the president from office is the best remedy to our current troubles, then the House might be obliged to press forward — if there is a realistic chance of conviction. But if Republican voters remain firmly in Trump’s corner and Republican senators remain unwilling to buck their constituents, then rushing ahead is counterproductive. The House has no duty to impeach just for the sake of making hopeless, symbolic gestures.
If the point of impeachment is removal, no shortcut avoids the necessity of chipping away at the president’s public and political support until the prospect of a Senate conviction is something more than a Hail Mary pass. The GOP reaction thus far, including from former presidential nominee and current senator Mitt Romney (Utah), suggests that the Ukraine episode might get traction in the Senate. So the House’s real constitutional duty is to try to widen that political opening. That means not only proceeding with the investigation in a way that might move public opinion and pressure Republican politicians, but also confining any eventual articles of impeachment to charges that stand a chance of winning conviction. Larding on additional charges that might satisfy the Democratic base but repel wavering Republicans would be a mistake.
Given the political calendar, if the ultimate goal is booting Trump from office, then next year’s election is another, and perhaps better, path. If the president poses an imminent threat to the country because of his ongoing abuse of power, then waiting for the election cycle to play out would be reckless. If, however, the president’s apparent misconduct is in the past, containable or of lesser consequence, then exposing problems for voters to see and leaving the final judgment to the American people becomes a viable option. The fact that Trump has, by his own admission, willingly jumped into another scandal involving foreign election assistanceso soon after the conclusion of the Russia investigation lends credence to the argument that he cannot be safely left to serve out his term, but perhaps less-drastic checks and balances can see the nation through another few months of his presidency. Congress can, for example, demand more transparency for agency actions and more closely monitor the expenditure of appropriated funds, attach more strings to funds, withdraw money from presidential pet projects, and insulate policy commitments from presidential whims by writing more stringent directives into statutes.
That the impeachment power is not the first resort for dealing with an irresponsible president does not mean the power is useless, as some on the left have suggested. There are occasions when the immediate removal of a dangerous official is essential, and the impeachment power has been effectively used to deal with troublesome lower-court judges who were widely regarded as no longer worthy to sit on the federal bench — most recently Judge Thomas Porteous, who was charged in 2010 with corrupt conduct in his handling of cases.
Impeachments of presidents will almost always be more controversial and involve issues and facts that stir partisan division. But in the case of Richard Nixon, who was eventually abandoned by his own party, lawmakers responded not just by pursuing an impeachment inquiry but also by addressing the underlying concerns about abuse of executive power. Congress adopted internal reforms so it could respond more effectively to a hostile president, and it reconsidered the statutory grants of authority that future presidents might misuse.
Decades later, Trump has shown that a willful president can still exploit myriad statutory loopholes to frustrate the will of Congress. From border wall funding to trade wars, the president has taken advantage of the discretionary authority that lawmakers left lying around. While Congress might hope that the judiciary will bail it out on some of those initiatives by ruling that Trump has stretched the loose language of federal law too far, it could also take steps to put more authority back in its own hands. Restraining executive power might be more valuable in the long run than ejecting a single chief executive from office.
Even if conviction and removal are effectively off the table, there might be reasons to impeach. Impeachment can serve other purposes, as some advocates for the process have argued. It can serve as a tool for shoring up, or changing, the accepted norms of political behavior. Impeachment can be a rebuke to the officeholder and a warning to his successors. If violating norms appears to be a path to political success, the theory goes, established norms will eventually crumble. Impeachment is a tool to impose political costs on norm violators and discourage others from emulating them.
But it isn’t the only tool.
Trump is a promiscuous norm violator, and that has worked for him to some degree: It brought him to the White House and helped him consolidate his hold on the Republican Party, though it is not at all clear that it has helped him govern effectively. In coming years, other ambitious politicians might be tempted to model themselves after Trump. It is challenging to find a way to prevent his behavior from becoming normalized.
Part of the challenge is deciding what norms must be defended. Some might simply be abandoned, as Trump suggested when he declared that his frequent tweeting is “modern day presidential.” Some might bounce back on their own after Trump’s departure; few presidents are likely to have the kind of financial conflicts of interest that his unique family business creates. Other norms might require more conscious effort to preserve, such as the expectation of investigatory independence in the Department of Justice or the acceptance of the legitimacy of an independent and critical press. A House concerned with reestablishing political guardrails will have to think about where best to expend its energy.
In our polarized environment, the House must also be cautious not to turn such an effort into a partisan issue. Consensus norms — such as the expectation that presidents will not engage in divisive racial rhetoric, meddle in the work of specialized agencies or heap praise upon foreign dictators — might be expected to reassert themselves after Trump. If Republicans mount a partisan defense of the president’s violations, however, then we could be worse off. If impeachment degenerates into a purely partisan battle, then the ultimate success of any Democratic effort to establish new political rules will depend on the Democratic Party’s own political fortunes. Optimally, the House would press a case that would force Trump’s defenders to argue that the charges were unproved or insufficient to warrant immediate removal — but not that the president’s behavior was meritorious or unimpeachable.
There is a persistent fear of the cost of doing nothing in the face of Trump’s conduct. If his presence in office creates intolerable dangers to the republic, then those costs are quite real. If not impeaching emboldens him to push the boundaries of acceptable behavior even further, those costs are significant. But if the concern is simply that a failure to impeach sets a bad precedent, then trying to muster a majority behind impeachment may not be necessary.
The debate over impeachment’s utility is nearly as old as the Constitution. After the Senate acquitted Supreme Court Justice Samuel Chase in 1805, even though the Jeffersonians held more than two-thirds of the seats in the upper chamber, President Thomas Jefferson complained that “impeachment is not even a scarecrow.” Nonetheless, the House did eventually find new cases of misconduct that it thought warranted impeachment, and the Senate did sometimes agree that removal was necessary.
No matter what happens with Trump, it will still be difficult to impeach and remove a misbehaving future president. Inaction on impeachment now is unlikely to be read as a strong precedent that some conduct is not impeachable. If the Senate proves unwilling to convict, that is more likely to send a signal about what the effective scope of impeachable offenses might be. If the House declines to impeach a president who has arguably committed impeachable offenses, that will reflect a political judgment that impeachment was not the best remedy in this particular case. Future presidents who commit similar offenses could still find themselves in the dock if the politics or circumstances are different.
The House has a constitutional duty to safeguard the nation’s interests against abusive government officials and to protect its own ability to engage in oversight. Impeachment is sometimes the necessary means for fulfilling that duty. But it is not the only way to tie the hands of errant officials, and impeachment of a single president will not, by itself, address the long-term problem of excessive executive power and the potential for abuse. Leaders of both parties should learn some lessons from this presidency, no matter how it ends, and reexamine Congress’s capacity to do its job — and the extent to which we have been relying on the good character and judgment of individuals in the White House to keep the government on an even keel.