Impeachment … Now? - Part 2

In the last post we reviewed the solid grounds on which to base the impeachment of the President.  Yes, there are certainly enough.  But the question remains: Is this the right time?

The right time to impeach the president

Within the last few weeks Speaker of the House Nancy Pelosi has tried to defuse the question of Trump’s impeachment with her statement that they should not, “because he’s not worth it.”  On the other hand, liberal members of the House have already introduced resolutions for impeachment.  The resolution will obviously not be straightforward.

Let’s look at the reasons for beginning immediately   

Removing the president from office is not the only reason to begin impeachment proceedings.  Even if removal is unlikely, it could be appropriate to start other hearings.

Yes, impeach now!

1.     As I pointed out in the last post, impeachment proceedings are most similar to grand jury investigations.  They are the process by which Congress decides whether to impeach the president.  Unlike the Mueller investigation, congressional proceedings are mostly open, so the public sees the evidence as it evolves.  Any congressional probe has the power to subpoena witnesses and evidence in building the case.  With opportunity to cross-examine witnesses under oath, the investigative committee may uncover the further evidence to convince most people that Trump should be removed from office.  Because of Republican opposition, Trump cannot now be removed from office, but with further evidence, a “smoking gun” may be revealed that will convince even Republican voters and, therefore, their congressional representatives of their responsibilities.
  
2.     Even the now-well-accepted impeachment proceedings against President Nixon began well before there was incontrovertible evidence him against him.  The 1970s was also a partisan time. With a two-thirds vote in the Senate required to remove Nixon from office, there was essentially no chance at the beginning of the proceedings that the effort would be successful.  It was the evidence-finding powers of Congress that made it possible to develop sufficient evidence.  Furthermore, a Senate trial was not necessary.  On the basis of the public evidence, Nixon resigned on his own.

3.     As official government proceedings, impeachment hearings will be followed closely, not only by the “liberal press” but also by Fox News and the mostly conservative local news outlets.  It will, therefore, be even more difficult to dismiss them as “fake news.”  Regardless of the final outcome, the public will have more reason to unite behind the proceedings.

4.    It’s simply the right thing to do!  For too long, as Congress has followed the political winds, people have hungered for congressional integrity.  Even though impeachment may be divisive, ultimately Congress must learn how to take its responsibilities seriously, regardless of political cost.  Ultimately trust in the government is more important than short-term political gain.  Congress must do the right thing!
    
These are all powerful and convincing reasons to begin the impeachment process immediately.  When I first began writing this series, in fact, I, too, was convinced the Democrats should begin the process now!

But there are strong counter-arguments that have changed my mind.

No, this is not the right time to begin impeachment proceedings.

1.     The reality is that a process almost identical to impeachment proceedings began over two months ago on January 3, when a Democratic majority was installed in the House of Representatives.   With the majority came the power to control the agendas of the various House committees.  Six different House committees, in addition to Mueller’s probe, are currently investigating Trump’s actions and their impacts:

• the House Oversight and Reform Committee
• the House Intelligence Committee
• the House Judiciary Committeethe 
• theHouse Ways and Means Committee
• the House Financial Services Committee, and 
• the House Foreign Affairs Committee.

Each of these committees has the power to subpoena witnesses, to punish misleading testimony, to subpoena thousands of documents relating to the cases (eg. Trump’s tax returns).  These committees taken as a whole have at least as much power as an impeachment inquiry.
 
2.  Speaker of the House Nancy Pelosi has characterized this ongoing committee work as “oversight” and not “investigation.  The semantics are important: the word “investigation” has a more negative connotation than the more’s neutral word “oversight,” which will not be considered so divisive.  It has already, to some degree, been accepted as appropriate.

3.   Presidential oversight is central to the balance of powers that the Constitution has mandated.  Were the House abandon its oversight responsibility, it would be flouting a fundamental principle of our democracy; it would essentially be an unconstitutional abdication of duty.

4.     Maintaining trust in the government is, at this point in our history, an overriding necessity.  Were the Democrats to force impeachment hearings now and then not discover enough evidence to convince Republicans and, therefore, lose the vote in the Senate, Trump supporters and many in the country could well come to perceive the impeachment hearings as simple political maneuvering.  Trust in government would fall even lower (if that were still possible).  A failed impeachment would be a powerful political divisive symbol. 

5.     On the other hand, if more definitive evidence were to emerge (“a smoking gun),” impeachment hearings could begin immediately with considerably more support in the general population and, especially, in the Senate.
  
6.     Impeachment is the “last line of defense” against presidential abuse of powers.  It is not to be used lightly or for political purposes.  Most of us reading this blog believe that the impeachment of the President is warranted, but approximately one-third of our country does not.  At this point in the process, they will see the attempt to impeach the president as just one more Democratic political tool to nullify Trump’s 2016 victory.  It’s important to wait for evidence strong enough to convince enough Trump supporters that impeachment is justified.
The Founders created the impeachment process for extreme situations.  Like so much else in our Constitution, it assumed lawmakers committed to the good of the country.  If impeachment became just a political tool, Congress (or even just the House of Representatives) could willy-nilly begin impeachment proceedings against any President they opposed.  It would drive one more nail into the coffin of our democracy.
    
In the end…

I should acknowledge that when I began this series on impeachment, I believed that the proceedings should begin as soon as possible.  As I read and considered the questions and began writing, however, I came to a different opinion and, based on the reasoning above, it’s now clear to me that the reasons for waiting outweigh the reasons for beginning the proceedings immediately.

I certainly understand Congresswoman Rashida Tlaib’s anger and impatience.  Her statement (“We're gonna go in there and we're going to impeach the motherfucker.") was certainly inflammatory and certainly breached the decorum of Congress, but it can’t be compared to the President’s inflammatory and dangerous statements and actions over the last two years.

I also understand the impatience of so many on the left who want to start right away, but we have nothing to lose and much to gain by allowing the Mueller investigation and the six House committees to continue with their process. 

The risk of failure by acting too quickly is far more dangerous than waiting for definitive evidence to arise.

Impeachment ... Now? - Part I

Almost since the beginning of the Trump presidency, there has been talk of impeachment.  Since Michael Cohen’s recent testimony before the House Committee on Oversight and Reform, the drumbeat has gotten even stronger.  The leadership of the Democratic Party has been hesitant, fearful of moving too quickly and alienating independents, to say nothing of Trump’s base.  Younger members of Congress have been more aggressive.

But much of the debate has been hobbled by confusion over the meaning of the word “impeachment.”

The Atlantic magazine’s Yoni Appelbaum has written an excellent article in which he emphasizes:

Impeachment is a process, not an outcome, a rule-bound procedure for investigating a president, considering evidence, formulating charges, and deciding whether to continue on to trial. [my italics]

Impeachment is like a grand jury’s investigation that decides whether a trial is warranted.  The question facing Congress now is not whether the president should be removed from office but only whether the House of Representatives should initiate the process that will determine whether there is ample evidence to send the case to the Senate for trial.

Should the House Begin the Inquiry?

As we have been exploring in this blog, Donald Trump’s behavior since becoming president certainly warrants investigation into his fitness for office.  Cohen’s testimony only strengthens that conclusion.

Appelbaum reviews some of the data:

• Although his oath of office pledges him to put the interests of the country ahead of his own, the President has repeatedly sought to use his position to enrich himself financially,
•      not only refusing to divest himself of his business ventures,
•      but also refusing even to disclose what his business holdings are, and
•      using his position to publicize and encourage people of power and wealth to frequent his hotels and golf courses.
• President Trump has repeatedly demanded that many of the public servants he appoints pledge loyalty to him rather than to their office or to the country.  The President has sometimes dismissed them for refusing, e.g. James Comey when he was director of the FBI.  
• He has attempted to use the Justice Department to launch criminal investigations into his enemies, including those who are simply political enemies like Hillary Clinton.

As Appelbaum writes, “Trump has repeatedly trampled upon [the liberties guaranteed by the Constitution]:

• He pledged to ban entry to the United States on the basis of religion, and did his best to follow through.
• He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events.
• He has assailed black protesters.
• He has called for his critics in private industry to be fired from their jobs, for instance, when he demanded that CNN fire president Jeff Zucker.
• He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. …

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.”

What Are the Criteria for Removal?

So there are many reasons to question and investigate Trump’s fitness for office.  But at this point there has been no crime for which the President could be convicted in a court of law.  So can he the removed from office on the basis of his actions so far?

According to the Constitution, the president can be removed from office only for “treason, bribery or ‘high crimes and misdemeanors.’”  The meanings of “treason” and “bribery” are relatively straightforward.  It is the definition of “high crimes and misdemeanors” that is contested.

While most impeachment hearings have concerned alleged crimes, such as President Clinton’s lying under oath, a criminal offense is not necessary.  Impeachment is a political process not a criminal one.

Wikipedia suggests that “high crimes and misdemeanors” comprise some combination of

• perjury of oath,
• abuse of authority,
• bribery,
• intimidation,
• misuse of assets,
• failure to supervise,
• dereliction of duty,
• unbecoming conduct,
• refusal to obey a lawful order,
• chronic intoxication, and
• tax evasion.

The list is long and many of the elements are imprecise.

Impeachment has vague boundaries.

University of North Carolina law professor Michael Gerhardt conservatively sums up the academic consensus:

“The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes, but rather over the range of non-indictable offenses on which an impeachment may be based.”

It is that range of offenses that is a political, not legal, judgment.

The Right Time?

It seems clear that there is enough evidence to justify beginning the inquiry.  The more crucial question is whether this the right time to impeach the president.  It’s not a straightforward question.  Should it be a “political judgment” or are there deeper criteria?

My next post will look at whether now is the right time to impeach the President.