Some thoughts on impeachment

[osewalrus]

So, the impeachment thing. First, see this Congressional Research Service Report, which is the most recent guidance on federal impeachment.

https://fas.org/sgp/crs/misc/R44260.pdf

1. It is useful at this point to keep in mind we only have 3 Presidential impeachments, two of which have gone to trial in the Senate. That's a very small sample size.

Interesting fact, tho. Johnson was tried for impeachment in 1868, the election year. The fact that the American people would vote in November did not prevent the Senate from voting on impeachment in March.

2. Impeachment is for "Treason, Bribery, High Crimes and Misdemeanors." It is entirely undefined what any of this means. It is not settled that "Treason" in this context must mean the same as the definition of "Treason against the United States" as defined in Article III (although the consensus here is it probably is). This is in part because it is unclear whether impeachment is a criminal trial or something else.

The general consensus is "something else." Federal impeachment is a unique facet of the Constitution. While it draws on certain historical precedent, it should be recalled that the idea of rendering the Executive formally accountable to the legislative branch through a right of removal was one of the experiments of the Constitution. Notably, Hamilton in the Federalist Papers describes impeachment as reserved for those guilty of "abuse or violation of some public trust." (Federalist 65). Jefferson, in fact, argued that impeachment was a legitimate form of removal when he sought to impeach Supreme Court Justice Samuel Chase for "partisan rulings." This view lost the fight historically, which is a good thing for the overall stability of the country.

Accordingly, acts of the President may be grounds for impeachment WHETHER OR NOT THE ACTS CONSTITUTE A PROSECUTABLE OFFENSE. This is a vital point to keep in mind, as it will be obscured quite a bit. Mind you, given the gravity of impeachment, we have generally tried to limit to matters that could lead to criminal prosecution, but not always.

Another important take away from this is that if you hear people saying that because this is a trial the standard is the same as for a criminal trial -- that is nonsense. For one thing, that isn't the standard for indictment, which is the equivalent of what the House does. If this were a criminal trial, then the House would vote to try an impeachment on probable cause.

Likewise, there is no clear legal standard by which to judge whether any of the acts of President Trump rise to the level of an impeachable offense. There is certainly plenty of grist for the mill. Which brings me to the next point.

3. Unlike the Independent counsel's report, which is bounded by a specific referral and limited to specific acts, investigation into possible impeachment is wide-ranging. All Presidential acts and conduct are fair game. So while the event that pushed a majority of Dems over the edge to impeachment may have been the allegations that Trump attempted to coerce the President of the Ukraine into launching a corruption investigation against Joe Biden's son Hunter, the investigation is not limited to this specific matter. Everything from the emoluments clause accusation to allegations of obstruction of justice to lying about an affair with Stormy Daniels is fair game for consideration.

4. My personal opinion on the politics of the matter. As Hamilton also observed with regard to impeachment, it is indeed political in the sense that it is part of the governing process and a matter exercised by the legislature as a check on abuse of Presidential power. It is safeguarded both by the necessity for a supermajority in the Senate to convict, and by the general commitment of the members to their duty to the united States and the Constitution. It is always easy to laugh at this last -- especially in an age where cynicism is taken as wisdom and where every organ of the press and popular culture urge cynicism and laugh at any other possible alternative.

But whether or not cynicism is justified, no system of government can survive if it is abandoned by its people. I have seen debates in recent years over the superiority of various parliamentary systems or systems of ranked voting or whatnot. A survey of the governments of the world make clear that while design *is* important, no design can save a Republic from a determination by those in power to ignore restraint, or the indifference of the people deciding they do not care to save it.

So yes, politics is involved, as it is in any other human endeavor of governance. But politics should not be the only thing that governs, IMO. I have something I say to people in situations where they profess to be concerned primarily with the reaction of others rather than with their own responsibility for the consequences of their actions. "You do your job. Let other people worry about themselves."

That said, I will remind everyone who insists on invoking the Clinton impeachment (while conveniently forgetting the Nixon impeachment) that we are dealing with extremely small sample sizes. Additionally, 20 years ago was so different as to be virtually another planet. The situation there was radically different, the grounds of impeachment and the events leading to it were radically different. Our news coverage and our means of discussing the news of the day are radically different Perhaps most importantly for political purposes, the population of the United States is radically different.

So I am not terribly persuaded about how useful an example the backlash to the Clinton impeachment is for today's politics. If I indulge in the cynicism that is our common currency for political commentary, I find it highly unlikely that it will move the needle much. The 40% of Americans who approve of Trump's performance will continue to do so, the 50% who disapprove will continue to do so. We are a far cry from the 1990s, when the primary feeling of the American electorate was comfortable indifference and discussion of politics was considered unseemly.

But whether the Senate will or will not convict, or how the American people react, is ultimately, IMO at least, irrelevant. There are clear grounds to begin an impeachment inquiry. The House should do its job, and let the Senate worry about doing theirs.

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Comments

[osewalrus]

I'd prefer not.

[amaebi]

Of course.