But its focus on these matters often glosses over plenty of historical and constitutional context.
The most frequent example of this is the argument that Trump won 63 million votes and that this is a reason to avoid impeachment. A regular GOP talking point is that Democrats are trying to “overturn” the will of the voters or even void the results of this election. A companion argument, of which Trump is especially partial, is that he has accomplished too much, and this is a reason he should not be impeached.
“By impeaching President Trump, the House would essentially be nullifying the decision of those” 63 million Americans, House Republicans’ counsel, Stephen Castor, argued Monday at a House Judiciary Committee hearing. “And the House would be doing it less than 11 months before Americans return to the polls for another election. There is still no compelling argument for why Democrats in the House must take this decision out of the hands of the voters.”
Castor went on: “To impeach a president who 63 million people voted for over eight lines in a call transcript is baloney.”
Rep. Tom McClintock (R-Calif.) added later: “Democracy only works because the losing side always respects the will of the voters. The moment that social compact breaks down, democracy collapses into chaos. And that’s only happened twice in our nation’s history. It happened in 1860 when the Democrats refused to accept the legitimate election of Abraham Lincoln. And it happened again in 2016 when the Democrats refused to accept the legitimate election of Donald Trump.”
Impeachment is an inherently political process, and a president’s accomplishments and popularity will always weigh upon such decisions. But the argument that Trump is too popular or has too much of a mandate is a pretty strained one. Trump actually lost the popular vote in 2016. What’s more, if an electoral mandate was an argument against impeachment, President Richard Nixon should have been immune from such a process. He won reelection in 1972 with nearly 61 percent of the vote — compared to Trump’s 46 percent — and won 49 states.
The number of votes a president receives, of course, doesn’t actually matter when it comes to whether they have committed impeachable offenses, nor do their accomplishments in office. The impeachment clause in the Constitution makes no mention of such things; rather, it lays out a legal standard for “high crimes and misdemeanors” and mentions “bribery” and “extortion” as impeachable offenses.
Democrats have fed these arguments somewhat. Castor in his opening statement noted that now-House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) during the impeachment of President Bill Clinton argued that such an impeachment would “overturn the popular will of the voters as expressed in a national election.” Other Democrats used the same talking point in 1998. Likewise, House Speaker Nancy Pelosi (D-Calif.) had previously argued against impeaching Trump by noting, as Castor did, that voters could simply decide the matter in the 2020 election. But the latter is a political argument against impeachment, and the former is an argument for why there should be a high bar for it — as the Founders intended. Republicans’ present argument seems to be more that Trump’s election means impeachment is invalid, ignoring the fact that a president can never be impeached unless they are first elected president. (It is, by definition, a remedy for removing someone who has already attained the necessary support of voters.)
In addition, the idea that impeachment and removal of a president would undo the results of a presidential election would be news to the record number of judges — including two Supreme Court justices — Trump has appointed and would remain in place. It would also be news to Hillary Clinton, who would still not be president when Vice President Pence — a Republican — assumed the oath of office.
This was an overcooked talking point when Democrats used it in 1998; it’s even more overcooked today, because it’s being used to argue that this impeachment is somehow an inherently invalid process. At least with Bill Clinton, he was a broadly popular president at the time of impeachment, so there was a credible case to be made that Americans didn’t want impeachment (not that this bore upon whether he had violated his oath of office, of course); today, more people tend to support impeachment than oppose it.
Another mainstay of the current GOP defense against impeachment came from Turley, who argued last week that the impeachment process that is taking place now is the fastest ever. Castor alluded to that Monday, saying, “As Professor Jonathan Turley testified last week, ‘this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.' ”
As I noted at the time, comparing something to “modern impeachments” isn’t all that telling, given there have only been two: Bill Clinton and Nixon, who resigned before he could be impeached. And if you include Andrew Johnson in the 1860s, it’s not, as Turley claimed elsewhere in his testimony, “the record for the fastest impeachment;” Johnson was impeached three days after he committed the offense he was impeached for. What’s more, the timeline on Bill Clinton was rather similar to today’s.
(Philip Bump expanded upon these timelines on Thursday, noting there are differences in how you define the beginning and end of each impeachment process. One credible argument involving the Bill Clinton comparison: There was already a robust report on which to base the impeachment, in the form of the Starr Report, which is not the case with the Ukraine scandal.)
House Minority Leader Kevin McCarthy (R-Calif.) on Monday offered a new way in which the current impeachment process is allegedly unprecedented. He noted on “Fox and Friends” that we haven’t seen a modern president impeached before they sought reelection.
“In modern history, we’ve never gone after impeaching a president in the first term,” he said. McCarthy’s argument was more that this is aimed at unseating Trump in the election, rather than that you should never impeach presidents in their first terms. But all the points about the few previous impeachment processes we’ve had and the actual standard for impeachment stand. Do you not impeach someone because it’s during the one-fourth of their term that occurs in the year before an election? Do you not do it because voters can just decide themselves?
Of course, if the Founders wanted voters to decide this process, they could have made it a plebiscite. But that’s not the remedy laid out in the Constitution. The process in the Constitution is one decided on by elected representatives, who take into account the standards that are laid out.
To the extent Republicans are arguing that these things should mean impeachment needs to clear a high bar, that’s completely valid. Whether the evidence clears that high bar is also a completely valid debate, and only about half of Americans believe that it does right now. But to argue that this process is unprecedented, that 63 million is some magic number or that Trump is somehow immune from impeachment because of previous impeachments or because of the particular juncture in time doesn’t really take the Constitution into account.
But it’s what you do when you don’t really want to talk about exactly what the president did, which your own witnesses have repeatedly testified was at the very least wrong.
Correction: An earlier version of this post incorrectly said President Trump’s 2016 vote total was higher than any previous president’s total. It was more than any Republican’s previous total.