edelsont | Impeachment: Why Not? (Reason 2) (Reply)

Two entries back, I offered you an admittedly half-baked argument for impeaching (and removing) President Trump, based only on what we knew at the time. I also promised you an explanation of why I was not planning to press forward, right away, to make that argument more fully baked.

One entry back, I gave you part of that explanation. I said that I saw no hurry about building out the case for impeachment, given that there was at least one thing that the Congress needed to attend to more urgently than impeachment. That would be the passage of a "no first use of nuclear weapons" law.

In that same entry, I said that this "nuclear thing" was only one of the reasons "why not," and that I had three more reasons in mind. This time around, I plan to tell you about one more of the reasons.

But first, I want to clarify a couple of points. The first is to emphasize that when I speak of a "reason why not," I don't mean -- at least, not primarily -- a reason not to impeach. I mean a reason why I am not devoting my energy to arguing for impeachment. Sometimes, a reason for the one may also serve as a reason for the other. But not always.

And furthermore -- here comes the second clarification -- I'm also not giving reasons not to argue for impeachment, as such. Rather, they are reasons why I'm not devoting energy to strengthening the particular argument for impeachment which I introduced two entries earlier.

(As you may recall, the crux of that argument was that it was the president's duty to improve our defenses against foreign manipulation of our election processes, and that his abject failure to perform that duty could be grounds for impeachment, even if we assumed that he was not himself actively complicit in those manipulations.)

With those points made, I am ready to get on with telling you about the second reason.

Reason Two: There's a Lot of Groundwork Involved

It is something of a truism that impeachment is a hybrid process: quasi-judicial, but also quasi-political. One way that the latter is true is this: the process is actually performed by elected officials, that is, politicians (members of the House of Representatives, and then the Senate). Unlike federal judges, these people are elected for finite terms; if they want to remain in their respective positions, they need to be re-elected. And it is a simple fact, whether we like it or not, that this need has an effect on the way they do their jobs. In particular, it means that they are concerned about what the voters will think of their actions.

Yes, in the real world, they are also concerned about what potential donors of campaign funds will think. But in this particular discussion, I think we can afford the luxury of not focusing on that. Instead, I am drawing attention to the difference between "What will the voters think?" and "What is the right thing to do?" Federal judges are appointed for life, and the framers of the Constitution made that decision so that judges, unlike members of the House and Senate, could do what they thought was correct, in interpreting the law, and be relatively unconcerned about public opinion.

So ... the framers took this particular pair of responsibilities (impeachment and removal), and put it in the hands of people who -- by the nature of their jobs -- do care about public opinion. In particular, it is safe to assume, when they think about impeaching or removing a public official, that they care about whether the voters back home will think that what they are doing is proper.

What are the voters likely to think about that? That depends, partly, on whether those voters want to see the official in question -- in this case, President Trump -- remain in office. And that in turn depends, partly, on their political views.

But not entirely. A fair fraction of the voters are aware, if only vaguely, that impeachment is also a quasi-judicial process. They know that the Constitution says something (though not much) about the permissible "grounds" for impeachment; that is, about the criteria that Congressbeings are supposed to use in making impeachment-related decisions. Quite a few, by now, have at least heard the phrase "Treason, Bribery, or other high Crimes and Misdemeanors".

In short, many people do understand that this is a difference between our system and a parliamentary democracy. In the latter, the legislature can dismiss the chief executive simply because they no longer approve of the way she is doing her job. Under the US Constitution, it's not supposed to work that way.

Furthermore, not only do quite a few people know this, but a significant fraction of those people care about it, too. They believe in following the rules. So there are many people who would like to see President Trump gone (including, but not limited to, most of those who did not vote for him), but not all of those people automatically favor impeachment. They won't favor that until and unless they are convinced that it is being done on Constitutionally authorized grounds.

On the other hand, there isn't a lot of clarity about what that phrase -- particularly the "high Crimes and Misdemeanors" part -- means. Particularly among the general public. I suspect that most folks are under a mistaken impression about this. They think that impeachment requires the subject to be guilty of an actual crime: something explicitly prohibited in the statute books. Along with this, they probably also think that, in the Senate "trial" phase of the impeachment process, this guilt must be established by the same standard of proof that is used in criminal trials: "beyond a reasonable doubt."

I call these beliefs "mistaken," because, having read one short book on the subject, I think I know that neither of them is the consensus view among legal scholars. On the other hand, "mistaken" may be the wrong word, if only because there is no person or institution empowered to rule authoritatively on these things. Gerald Ford was probably thinking about this latter fact when he expressed the opinion that an "impeachable offense" is whatever the members of the House and Senate, at the time, think it is.

That opinion about the permissible grounds for impeachment -- we might call it the "Ford doctrine" -- amounts to saying that impeachment is a political process, not a judicial one. Whether or not you believe that it should be that way, one thing seems clear. Assume I was right, earlier, in saying that most Congressbeings, when considering impeachment or removal, will give some thought to whether "their" voters will approve of what they decide. If so, then, as a matter of practical fact, the Ford doctrine is at least partly correct.

That brings us close to the conclusion that I teased in the section heading, above: "There's a lot of groundwork involved." To establish that, I just need one more premise, concerning the particular "case for impeachment" that I laid out two journal entries ago. Namely: that argument did not claim that President Trump has committed a literal, on-the-books crime.

Given that fact about my argument ... and given the supposition that most of the public thinks, mistakenly or not, that crime is the only legitimate grounds for impeachment ... and given that the Congressional mind cares about public opinion ... it follows that you aren't going to get an impeachment, on the grounds I suggested, without doing a lot of public education first. (If you prefer a more neutral word, substitute "persuasion" for "education.") People will need to get used to the idea that the permissible grounds for impeachment are not that narrow.

Some voters will be much less receptive to the idea than others. That will depend, at least partly, on whether the voters in question, legal arguments aside, like the idea of removing Trump from office. In other words, it puts us squarely back in the political side of the process.

With the particular "case for impeachment" that I presented, it may be even a little more challenging than that. Based on my extremely limited reading in the legal literature, that is. That's because ... while those authors seem to have a consensus that a genuine, lock-'em-up-style crime is not required for impeachment ... almost all of what they say still uses the language of "offense" (as in "What constitutes an impeachable offense?") My "case," on the other hand, turns on a failure by President Trump to perform the duties of his office, and it's not entirely clear how to fit that into the concept of "offense," even when the latter is taken in the looser, not-necessarily-criminal sense.

I'm not saying that it can't be done, just that it will take some work. And in fact, there are places where the scholarship does seem to referring, obliquely, to cases of failure to perform one's duty. I just haven't seen anyplace where "grounds" of that type are addressed head-on.

If they haven't been, then that's another chunk of "groundwork" that needs to be done. Of course, that again raises the question: if it needs to be done, why don't I just get on with it?

Part of the answer to that question is quite simple: I am not a lawyer, let alone a "legal scholar." Someone with those qualifications could probably do a better job at clarifying these points about "proper" grounds for impeachment. And that person would definitely stand a better chance of being listened to.