The Case for Impeachment
When Congressman Brad Sherman proposed the first article of impeachment against President Donald Trump, the California Democrat carefully explained the necessity of the resolution, the legislative strategy he would employ to advance it, and the difficult political landscape that would have to be traversed in order to hold to account the most irresponsible and lawless President in American history.
“I act not for partisan advantage. Having served with [Vice President] Mike Pence in the House for twelve years, I disagree with him on most issues of public policy,” Sherman explained in June, acknowledging Democratic discomfort with Trump’s likely successor, were the president to be removed from office. “But we must move forward as quickly as possible to ensure a competent government that respects the Constitution and the rule of law . . . ”
Those were the urgent, yet carefully considered, words of a lawmaker who had determined to bear true faith and allegiance to an oath of office that requires him to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” He was not engaging in the partisan maneuvers that so frequently characterize Congressional action (or inaction). The Congressman was taking on an awesome responsibility with the seriousness of purpose that the founders intended when they established a Constitutional remedy for the crisis that arises when a President dishonors his position and threatens the republic.
Sherman recognized, as many have, that Trump must be impeached. He acted as an elected representative of the people must when the need for a Constitutional cure can no longer be neglected by those with the power to apply it.
Unfortunately, on a contemporary political landscape that is defined by the corruptions of partisanship, and the cynicism that develops when those corruptions go unaddressed for too long, Sherman’s seriousness put him at odds with the media and political elites who shape the discourse of our country. He was treated as an outlier, admonished in private by colleagues, and dismissed in public by commentators who are far more inclined to propagate talking-head trivia than to explore the original intent of the U.S. Constitution. Most Americans, even those who favor the removal of Donald John Trump from office, were unaware of what Sherman had done.
But there is no question that Sherman, a Harvard Law School graduate and instructor with two decades of experience in Congress, did everything right. He outlined his objection to the Trump presidency not in broad or emotional terms, but with a sharp focus on concerns about obstructions of justice and abuses of power.
Chief among these was Trump’s firing of FBI Director James Comey, in what Trump would tell Russian diplomats was an effort to relieve the “pressure” of FBI inquiries into links between the President’s campaign team and the Russians. (In the same week that Sherman unveiled his article of impeachment, Trump appeared to acknowledge reports that Robert Mueller III, the special counsel in the Russia probe, had expanded his investigation to consider these obstructions of justice.)
In a well-ordered and well-functioning media system, the announcement by a senior lawmaker that an article of impeachment had been written and submitted for consideration would have led the evening news and topped the front pages of morning papers.
For the most part, political and media elites dismiss impeachment in particular and the system of checks and balances in general, as a distraction.
But decades of consolidation, conglomeration, and bumbling responses to technological progress have left the United States without a democracy sustaining media system. Major media outlets are not merely disinclined to speak truth to power; frequently they serve as stenographers to power. And power maintains an at best unsteady acquaintance with Constitutional remedies, especially when they involve accountability. For the most part, political and media elites dismiss impeachment in particular, and the system of checks and balances in general, as a distraction.
They prefer to obsess about Trump’s tweets, palace intrigues that pit the white nationalist and Wall Street wings of the current administration against each other, and Ivanka Trump’s complaints about the supposed incivility that is directed toward a man who encouraged his supporters to harass protesters and to chant “lock her up” at the mention of his 2016 opponent’s name.
The media’s rigid refusal to engage with the impeachment debate did not surprise serious students of presidential accountability.
A decade ago, The New York Times, The Washington Post, CBS, ABC, NBC, FOX, CNN, and MSNBC all dismissed potent appeals for Congressional action to censure George W. Bush and Dick Cheney after the former President and Vice President maneuvered the United States into an undeclared, illegal, immoral, and ultimately catastrophic war in Iraq.
For the most part, media outlets get excited about impeachment only if claims of alleged wrongdoing are salacious (as with the ridiculous attempt by Congressional Republicans to remove Bill Clinton in the late 1990s), or if there is general agreement that an executive has veered so dramatically off course that the elites themselves begin to worry about a threat to their circumstance.
There is good reason to believe that Donald Trump will ultimately inspire precisely those worries. His erratic and arbitrary approach to even the most basic of responsibilities, his disregard for facts in combination with his rank dishonesty, his penchant for surrounding himself with authoritarians, and his willingness to act on their advice have already caused very powerful people to fret that this presidency could end in tragedy—for Trump and for the country.
But, at least for now, most elites are not sufficiently concerned about Trump’s misdeeds to contemplate his removal from office before the end of a term that concludes on January 20, 2021.
As such, Sherman’s proposal for more immediate relief was accorded a half-column on the corner of page 11 of the national edition of The New York Times. The article featured an academic and a Republican congressman brushing off the intervention, as the paper itself chimed in to declare: “The congressman’s efforts to impeach the president, just six months into his term, have virtually no chance of succeeding given the strong majority Republicans hold in the House, where impeachment proceedings must begin.”
The reviews were just as bad, or worse, from other major newspapers and the broadcast networks—as well as from the cautious political websites that fantasize that they are “new media” but generally repurpose “old media” dogma with bells and whistles.
It was the journalistic equivalent of Bob Dylan singing, “You Ain’t Goin’ Nowhere.”
This is how it works in Washington, D.C.: While America is increasingly post-partisan, or more precisely anti-partisan, our media frame the national discourse in the narrowest of partisan terms. In effect, the media constrain rather than encourage debate about obvious and necessary responses to evolving crises.
Never mind that the overwhelming majority of Americans have lost confidence in a President who, it should be remembered, received only 46 percent of the vote in the 2016 presidential election and trailed his Democratic rival by almost three million votes.
Never mind that the nation’s great Constitutional scholars say this loss of confidence is appropriate, as the President has committed acts that put him at odds with his oath of office and his duties to the republic.
Never mind that those scholars argue that Trump has committed impeachable acts. Never mind that polls show more Americans favor Trump’s impeachment than oppose it. Never mind that, where citizens and their elected representatives are given an opportunity to weigh in on the matter of Trump’s continued tenure, they have done so—with formal resolutions calling for Congress to impeach Trump coming from communities across the country, from a town meeting in tiny Charlotte, Vermont (population 3,754), to the city council of Los Angeles, California (population: 3,976,322).
Whenever impeachment is placed “on the table” by the American people and emboldened officials such as Sherman, it is snatched back by partisans who have no taste for a debate about this constitutional remedy.
Never mind that, through petitions and letter-writing campaigns and marches and rallies, millions of Americans are, according to attorney John Bonifaz, a key figure in the burgeoning Impeach Donald Trump Now Campaign, “rising in the defense of our Constitution and our democracy!”
Whenever impeachment is placed “on the table” by the American people and emboldened officials such as Sherman, it is snatched back by partisans who have no taste for a debate about this Constitutional remedy. This does an injustice to the nation’s Constitutional history. As George Mason told the Constitutional Convention of 1787, “No point is of more importance than that the right of impeachment should be continued.”
Two hundred and thirty years ago, Mason and those who joined him in establishing a system of checks and balances argued that impeachment was the answer to a pair of questions: “Shall any man be above Justice? Above all, shall that man be above it, who can commit the most extensive injustice?”
The answer to these questions remains the same. Unfortunately, this is not the answer that House Speaker Paul Ryan, the most ardent of Trump’s defenders and the most partisan of Republican stalwarts, wants to hear. Even more unfortunately, it is not the answer that top Democrats are prepared to entertain. The leaders of what is supposed to be America’s “opposition party” boldly proclaim their devotion to “the resistance,” but they are shy about embracing the tool that the Constitution affords those who are serious about resisting pretenders to autocracy.
“Top Democrats in the House and Senate know their liberal base is clamoring for a harder line, especially after reports that Trump urged then-FBI Director James Comey to stop investigating ousted national security adviser Michael Flynn,” POLITICO reported in mid-May, as the evidence of presidential obstructions of justice grew ever more alarming. “Both Senate Minority Leader Chuck Schumer, Democrat of New York, and House Minority Leader Nancy Pelosi, Democrat of California, publicly tamped down impeachment talk this week, and Senate Minority Whip Dick Durbin, Democrat of Illinois, said Wednesday he’s urged patience to the party’s activists.”
Pelosi, who blocked efforts to impeach Bush and Cheney even after Democrats took control of the House in early 2007, has been steadily dismissive of moves to hold Trump to account. While everyone assumes that Pelosi and other senior Democrats want to put off impeachment so that their candidates can run against a weak and discredited Trump (and his Republican allies) in 2018 and 2020, the Democratic leader keeps evolving excuses for why she won’t go there.
In February, after California Democratic Congresswoman Maxine Waters reviewed the evidence of wrongdoing that might lead to the President’s removal, Pelosi leapt to the microphone and announced, “I’m not here to talk about impeachment today.”
Then Pelosi talked about it. While the President had “acted in a way that is strategically incoherent, that is incompetent, that is reckless,” the leader of House Democrats said, “that is not grounds for impeachment.” In fact, it is.
Incoherence, incompetence, and recklessness have been recognized from the earliest days of the republic as credible grounds for impeachment. The first federal official to be removed from office after being impeached, New Hampshire Federal Judge John Pickering, became the target of Congressional action in 1803 because of concerns about his erratic and irresponsible behavior. The following year, Supreme Court Justice Samuel Chase was impeached for, among other things, “intemperate and inflammatory . . . peculiarly indecent and unbecoming . . . [and] highly unwarrantable” behavior.
Impeachment is not a legal procedure; it is a political tool. The definition of “high crimes and misdemeanors” is deliberately vague because the initiators of the American experiment presumed that future generations would require flexibility in order to prevent Presidents from becoming “kings for four years.”
“An impeachable offense is what ever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two- thirds of the other body considers to be sufficiently serious to require removal of the accused from office,” explained former President Gerald Ford, who became something of an expert on the Constitutional mechanism in the 1960s and 1970s.
In the spring of 2017, however, Nancy Pelosi was doing everything she could to narrow the definition of an impeachable offense. By May, she was even blaming the messengers. At the same time that Harvard Law School Constitutional law professor Laurence Tribe was arguing that “the time has come for Congress to launch an impeachment investigation of President Trump for obstruction of justice,” Pelosi was dismissing suggestions that Trump had committed impeachable offenses as “hearsay.”
‘Never in American history has a President-elect presented more conflict of interest questions and foreign entanglements than Donald Trump.’
The minority leader said members of her caucus who were talking about impeachment, such as Waters and Texas Congressman Al Green, were merely parroting the messages of town hall meetings across the country. “It’s a reflection of what they’re hearing in their own constituencies,” Pelosi explained in mid-May. “But they know I don’t subscribe to that.”
A month later, the leader of the opposition in the House had a new excuse for why Democrats should hold off. “I think he’s going to self-impeach,” she said.
The flaw with Pelosi’s calculus is that Trump has already self-impeached. Several times.
On the day that the forty-fifth President was inaugurated, Constitutional scholars argue, the billionaire politician was in violation of Article I, Section 9, of the founding document: the emoluments clause. Noting the Trump Organization’s global financial interests, Norman Eisen, Richard Painter, and Tribe had reported in December, 2016, to the Brookings Institution that “never in American history has a President-elect presented more conflict of interest questions and foreign entanglements than Donald Trump.”
Bonifaz, a lawyer and writer on Constitutional questions and the recipient of a MacArthur “genius grant” who serves as president of the reform group Free Speech for People, joined retired Montana Supreme Court Justice James Nelson to advance the argument that these entanglements are vast and complex. Many “require foreign government permits and approvals, which amount to substantial financial benefits that also constitute foreign emoluments,” they wrote in February. “To address this unprecedented corruption of the Oval Office and this threat to our Constitution and our democracy, we believe Congress must move forward now with an impeachment investigation of President Trump.”
In a February address on the floor of the House, Congressional Progressive Caucus co-chair Mark Pocan raised emoluments clause issues when he noted that Muslim-majority countries where the Trump Organization had business interests had been excluded from the President’s ban on Muslim travel to the United States. The Wisconsin Democrat argued that if Trump refused to address concerns about conflicts of interest and a lack of transparency, “we’ll have to take other actions, including legislative directives, resolutions of disapproval, and even explore the power of impeachment.”
Trump’s process of self-impeachment hit warp speed in May, with the firing of Comey and the President’s televised admission that he was fretting about “this Russian thing” when he decided Comey had to go. At that point, Pocan said, the “impeachment clock” had moved “an hour closer to midnight.”
Congressman Sherman, in announcing his article of impeachment, argued that it was not necessary that Trump take some drastic new action, like firing the special counsel, for impeachment to proceed.
“A finding of ‘High Crimes and Misdemeanors’ does not require the violation of any particular criminal statute,” the Congressman wrote in a letter to his colleagues. “However, many Members will feel more comfortable if it is shown that President Trump violated a particular criminal statute. I believe that Trump’s use of threats to obstruct the ongoing criminal investigations of Michael Flynn clearly violate 18 U.S.C. 1512(b)(3); Violations of that section are a felony. Trump’s efforts to obstruct the investigation of his campaign’s possible collusion with Russia violated the same statute.”
With regard to the charge of obstruction of justice, he continued, “the evidence we have is sufficient to move forward now.”
The Congressman is correct. The facts that are now available, and a healthy regard for the national interest, require that Donald Trump be impeached. Unfortunately, that won’t sway Paul Ryan, whose commitment to the national interest has never equaled his commitment to the special interests that fund his campaigns. Nor, if her own words are any indication, are arguments for swift and immediate justice likely to influence Nancy Pelosi.
So is impeachment really “off the table”? Not necessarily.
Sherman’s strategy is to start getting members of Congress on the record, as cosponsors of his initiative and as supporters of his efforts to ensure that it is debated and voted on. Democrats who sign on will be able to stand on the high ground of opposition to Trump and Trumpism, boosted undoubtedly by the steady stream of revelations regarding presidential transgressions. If enough Democrats step up, that will create pressure on Republican members of the House to choose between the national interest and Trump—and, in some cases, between their own self-interest (in reelection) and the billionaire who seized control of their party.
The American people have a much higher regard for the Constitution than do the elites. The people want to check and balance Presidents who get out of line.
Even if the Democrats fail to convince a sufficient number of dissident Republicans to join them on the right side of history, there is little reason to believe the proponents of impeachment would suffer politically. The Democrats who pursued Richard Nixon in 1974 dramatically increased their majority in the House and substantially improved their position in the Senate that year. Two years later, they won the presidency for the first time since 1964.
Even when impeachments go horribly awry, as when House Republicans impeached Bill Clinton but failed to get a Senate conviction, the evidence of electoral punishment is slim. The same Republicans who were roundly condemned for the petty pursuit of Clinton in January 1999 found themselves, on January 20, 2001, in control of the White House and both chambers of the Congress for the first time since 1955.
There’s a reason for this: The American people have a much higher regard for the Constitution than do the elites. The people want to check and balance Presidents who get out of line. And, if anything, they are more inclined toward Constitutional remedies now than in the past.
If the 2016 election taught us anything, it is that a disdain for politics as usual is alive in the land. Poll after poll tells us that voters are furious with the empty and compromised calculations of political careerists. They want, and they deserve, a politics that places principles ahead of partisanship, that chooses country over calculation.
The Democrats could, with an embrace of impeachment power, set an example of principled politics. But Democrats will not do this by standing on the sidelines of this moment. They must follow the lead of Texas Congresswoman Barbara Jordan, who, when she took her place on the House Judiciary Committee that boldly impeached Richard Nixon, declared: “My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.”
Forty years ago, when Democrats refused to be spectators, they found that the American people were grateful. Democrats would do well to again place their faith in the Constitution. It is there that the most powerful tool of resistance was lodged, in anticipation of men such as Trump and moments such as this.