Impeachment? Is the Constitution Unconstitutional?

National Review wrote:What Is Impeachment For?

Andrew C. McCarthy,National Review,
October 12, 2019

What is impeachment for? Seems like a simple question. Constitutionally speaking, it also appears to have a simple answer: to cite and remove from power a president guilty of wrongdoing.

Aye, there’s the rub. What sort of wrongdoing warrants removal from power?

I’d wager that the flames of impeachment were stoked more this week by President Trump’s foreign policy than they have been by any purported impeachable offense his opponents have conjured up over the last three years. By redeploying a few dozen American troops in Syria, the president acceded to a Turkish invasion of territory occupied by the Kurds. Ostensibly, that has nothing to do with the impeachment frenzy over Ukraine, whose government Democrats accuse the president of pressuring to dig up dirt on a political rival. But Turkey’s aggression could crack the president’s impeachment firewall.

There is rage over Trump’s decision. It is rage over a policy choice, not over high crimes and misdemeanors. Only the most blindly angry can doubt the lawfulness of the commander-in-chief’s movement of U.S. soldiers, even though it rendered inevitable the Turks’ rout of the Kurds.

Ironically, though, the lack of an impeachable offense is not the relevant impeachment consideration. Nor does it matter much that, while excruciating, the president’s decision is defensible and will be applauded by Americans weary of entanglement in the Muslim Middle East’s wars (as I discussed in a column on Thursday).

What matters is that President Trump has damaged his support among Senate Republicans. How badly remains to be seen.

Republicans, who hold a 53–47 Senate majority, lambasted Trump’s decision. This was not a routine policy disagreement, along the lines of “I wanted a top marginal tax rate of 33 percent, but the president insists on 37.” We are talking intense disapproval. This is rage rooted in a sense of dishonor. Political disputes, even intra-party, are par for the course — but shame moves people.

The genius of the Constitution’s impeachment process is the requirement of a two-thirds conviction vote in the Senate. The Framers feared the specter of Congress impeaching a president out of sheer partisanship. The need to establish supermajority support for removal ensures that impeachment is reserved for objectively egregious misconduct, the only kind that can generate a consensus for impeachment that cuts across partisan lines. Historically, the practical impossibility of achieving a Senate supermajority for removal has prevented impeachment from even getting off the ground in the House.

It is true, of course, that only a simple House majority is needed to approve impeachment articles. If we lived in a blindly partisan country, such a simple majority could materialize any time different parties controlled the House and the presidency. Happily, we don’t live in a blindly partisan country. More to the point, the House has historically seen it as counterproductive to impeach a president when there is no practical possibility of removal by the Senate.

Such baldly political calculations highlight that, for all the legalistic mood music (“high crimes and misdemeanors,” “process,” “articles of impeachment,” “conviction,” “acquittal”), impeachment is quintessentially political. It aspires to legal rigor and logic, such as Alexander Hamilton’s effort to articulate a workable definition of impeachable offenses in Federalist No. 65. But impeachment actually operates on gut political reality, more along the lines of then-House minority leader Gerald Ford’s 1970 observation that an impeachable offense is “whatever a majority of the House of Representatives considers [it] to be at a given moment in history.”

Our moment in history is an oddity.

In the past, a president duly elected by the people was presumed fit for the job. Makes sense: The people are sovereign and the constitutionally prescribed qualifications for the presidency are not demanding. Since the president was presumed fit, any claim of unfitness had to be deduced from the president’s commission of serious wrongdoing.

Donald Trump’s case is different. He is despised by the Left and his populism and coarseness are anathema to many Republicans — particularly conservative intellectuals. (That’s not a dig: Some of my best friends are conservative intellectuals.) Trump won despite losing the popular vote decisively. A sizable chunk of the public thus deemed him unfit before he ever strode into the Oval Office. From Day One, he was seen as an impeachable president. With guilt assumed, all that remained for the Resistance was to identify some offense it could rally around.

The media coverage of Trump is relentlessly negative, so this “Trump unfit, therefore impeach” view of things does not seem as controversial as it should. There is considerable debate among legal scholars about what kind of conduct impeachment should apply to. Some say that it is limited to abuse of presidential power. Others counter that it applies to anything that demonstrates an incumbent’s unfitness. I adhere to the latter position, but it is not clear-cut.

In a democracy, the people’s election of a candidate whose flaws are no secret cannot help but raise the bar for demonstrating unfitness. There has to be more to it than the flouting of norms. I happen to think most norms are valuable, but if the sovereign decides to elect a norm-breaker like Donald Trump, then norm-breaking absent lawlessness is not going to be impeachable, even if it makes many of us uncomfortable.

The lesson of the Clinton impeachment is that even some serious misconduct should not be grounds for impeachment if (a) it does not implicate the core responsibilities of the presidency and (b) public opinion is against the president’s ouster. Nevertheless, it cannot be that a president whose misconduct illustrates unfitness beyond cavil should be retained solely because the crime is unconnected to his duties. I’m thinking of President Trump’s quip that he could get away with shooting someone in the middle of Fifth Avenue. Cute line, but I’m confident that a president who committed a terrible but private crime would be impeached and removed straightaway.

Trying to cobble together a coherent legal theory of impeachment from all these permutations is a fool’s errand. Again, impeachment is political, not legal. The political climate, not legal arguments, will determine it. That climate is informed not only by the public assessment of the president’s overall fitness and alleged misconduct, but such externalities as timing: If a president is soon facing an election, as Trump is in about a year, one would think the grounds for impeachment would have to be undeniable and urgent to justify having Congress, rather than voters (the sovereign), decide the president’s fate.

Impeachment depends, first and foremost, on public opinion. That is what most drives the House to act — members are moved by base voters who decide elections that House members face every other year. The Senate has more insulation from voters, with only a third of its members up for reelection in any given cycle. That fact, combined with GOP control, is why the Senate is Trump’s firewall. It would take defections of 20 or more Republicans to get Democrats to the Promised Land of 67 votes.

Note, however, that it is not the Senate’s job to find impeachable offenses. Senators, instead decide whether the president is fit to remain in office. In theory, that depends on whether they believe the high crimes and misdemeanors alleged by the House have been proven. In practice, however, senators are more likely to reason backwards: They first draw a conclusion about fitness; that conclusion then guides their vote on whether impeachable offenses have been proved. The evidence that President Clinton was guilty of the charges against him was overwhelming. Yet, the Senate acquitted him because they found that he was not unfit, or at least that the public did not find him unfit. They rationalized that this judgment of fitness meant the allegations must be unproved — a legally incoherent conclusion that made perfect political sense.

President Trump’s decision to forsake the Kurds will form no part of the House Democrats’ impeachment charges. But it could have an impact on Senate Republicans’ evaluation of his fitness, and their willingness to be his firewall.

For now, I do not believe the president is in trouble. The intensity of the opposition’s objection to Trump the man has always been far stronger than the persuasiveness of their case that Trump the president has committed impeachable offenses. Currently, Democrats offer nakedly partisan and unconvincing allegations of impeachable conduct; these may well be further discounted by ongoing Justice Department investigations of the Obama administration’s abuse of counterintelligence powers in monitoring Trump’s campaign. In a political process, if this is the state of play, the GOP-controlled Senate will give a quick back-of-the-hand to any impeachment articles voted by the Democrat-controlled House.

The landscape could change, though, if things get ugly in Syria. As we’ve seen this week, the dominant narrative is that Trump is responsible for the lethal abandonment of heroic American allies. That narrative is being driven not just by Trump’s opposition in the media and Democratic party but also by incensed Republicans, who supported American intervention in Syria and championed the Kurds. Things could become immeasurably worse for the president if what follows are weeks of powerful video images and on-the-ground reporting of atrocities by the Turks, and if the PKK predictably responds with terrorist attacks in Turkey that prompt Ankara to more aggression, potentially igniting a wider war.

Another frenetic Washington week did not advance the anti-Trump cause of identifying impeachable offenses. Still, the political climate, and therefore impeachment climate, is anything but static.