Why I am not on board the impeachment train
It can feel lonely out here on the left when you're not on board the impeachment train. Some of that may be an echo-chamber effect. The drumbeat for impeachment is all around me, in social media posts, news and opinion websites, intellectual and academic journals, and among the progressive activists I hang out with. The voices for impeachment speak passionately and often eloquently. I do not dissent lightly.
There are ample grounds for opening an impeachment inquiry. Obstruction of justice documented in the Mueller report is only a beginning. The president and his administration engage in open defiance, indeed, outright repudiation, of Congress's oversight authority, blatant disregard for congressional powers related to spending and the budget, contemptuous indifference to the Constitution's emoluments clause, all in violation of his oath of office to "preserve, protect and defend the Constitution," and numerous, ongoing, routinized instances of misconduct (Chait) that singly and in the aggregate abuse public trust, for which impeachment is the constitutional remedy, "a bridle in the hands of the legislative body upon the executive servants of government" (Alexander Hamilton, Federalist No. 65).
Congressman Earl Blumenauer, a cosponsor of H. Res. 257, and others take care to note that their call for an impeachment inquiry is not a call to move directly to a vote on impeachment. The purpose of an inquiry is to gather the facts, find the truth, and build a case for the American people that they believe, and I agree, is there to be built. My sense is that most people calling for an impeachment inquiry view it as the first step in the impeachment process. There will be tremendous pressure to move on to a vote on impeachment from the moment an inquiry begins.
I get the arguments for an impeachment inquiry. Congress has a constitutional responsibility to hold the executive branch accountable for misconduct. We as citizens have our own responsibility to take stand up, speak out, and demand that our representatives stand by their oath to faithfully discharge the duties of their office.
A formal impeachment inquiry by the House Judiciary Committee would focus the public's attention on evidence of presidential misconduct to a degree that the present grab bag of committee hearings and the Mueller report do not. It would give the Judiciary Committee leverage to compel the appearance of witnesses and production of documents that committees do not have when conducting investigations pursuant to Congress's general investigative powers. Underlying it all is faith that there will come revelations that compel the majority of the American people and even congressional Republicans, with the exception of Trump's base and dead-enders in Congress, to join the chorus for impeachment. Principle is invoked. Trump's misdeeds are so numerous and so egregious that principle compels pursuit of the ultimate constitutional remedy even if it is likely that the effort will come up short in the end.
There are times when I almost sign on, but I cannot convince myself that this is a good move. The bottom line is my judgment that the impeachment process is not likely to help our cause, and it could well do it harm, the cause being to mitigate damage done by the Trump regime, elect a Democratic president in 2020, maintain the Democratic majority in the House, try to swing the Senate, admittedly a long shot, and swing state legislatures to prevent Republican gerrymandering when it comes time for redistricting after the 2020 census. This a heavy load. It is not apt to be lightened by impeachment proceedings.
Impeachment is a political process that is by its nature divisive. Nancy Pelosi is right to take this into account in her calculations. To do so is not an abandonment of principle. Alexander Hamilton described precisely the circumstances in which we find ourselves when he wrote of impeachment that its prosecution "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused...and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt" (Federalist No. 65).
Public support for impeachment is not insignificant, but it hardly constitutes a groundswell. Progressive activists are passionate, the rest of the country not so much. As of June 3 eleven Democratic presidential hopefuls had expressed support for an impeachment inquiry (Mosbergen). They include Elizabeth Warren, Kamala Harris, Cory Booker, and Bernie Sanders. H. Res. 257 has fourteen cosponsors. On June 13 Axios reported 62 of 235 Democrats plus a lone Republican, Justin Amash, on record in favor of opening an impeachment inquiry. Two hundred eighteen votes are needed to impeach the president (Basu).
An NPR/PBS NewsHour/Marist Poll conducted May 31–June 4 produced these findings:
"A slim majority of Americans (52%) want one of the following: to begin impeachment proceedings (22%), to continue investigations into potential political wrongdoing of Trump (25%) or to publicly reprimand him — that is, censure (5%).
"Thirty-nine percent say no further action should be taken and that the current investigations should end. That is largely reflective of Trump's base, as Trump maintains a 41% approval rating in the poll. (Trump's approval rating in Marist's polling has never been lower than 35%, which it hit right after the racist violence in Charlottesville, Va., in August 2017; or higher than 43%, which it reached in February 2019 as the unemployment rate dipped below 4%.)"
"Democrats are split as to whether impeachment should begin (36%) or investigations should continue (37%)." (Montanaro)
The Constitution gives the House "sole power of impeachment" (Article I, Section 2). The Senate is granted "the sole Power to try all Impeachments" (Article 1, Section 3). Article I, Section 3 goes on to stipulate that "Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Article II, Section 4 provides that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Nowhere does the Constitution specify conditions where the House has a responsibility, obligation, or requirement to impeach. In circumstances where it is a near certainty that the Senate will not convict the president and remove him from office, surely the House should consider how best it might fulfill its responsibility to conduct oversight of the executive branch and hold it accountable for misconduct. Impeachment is in some respects a powerful but in others an imperfect vehicle. Absent conviction by the Senate, it is difficult to fathom how impeachment could accomplish more in the way of accountability than the committee investigations already underway. Impeachment would be a further stain on Trump's already tarnished reputation and legacy, but it would be only one stain among many and no more likely than the others to give him pause, much less rein him in.
An impeachment proceeding, which I believe we will end up with at some point, will dominate the media, sucking up all the air in the room, as they say, distracting from popular legislation passed by House Democrats that will help set the agenda for 2020 and from oversight of other dubious conduct by the executive branch. Maybe the process will turn up a mushroom cloud of wrongdoing that will sway public opinion and a sufficient number of congressional Republicans to give impeachment a bipartisan flavor even if the Senate does not vote to remove the president from office. Maybe public opinion will be swayed sufficiently to flip some voters who cast ballots for Trump in 2016. His overall approval ratings are so low, and his disapproval ratings so high, that a loss as small as one or two percent would be significant. This is the rosy scenario. It could happen.
It could also all go south if the proceedings, media coverage, and White House response deteriorate into a cacophony of rhetorical bombast and idiotic tweets that has been the mark of public discourse during the Trump era. It is not a lock that a formal proceeding would be more effective when it comes to compelling witness testimony and production of documents. The president and his personal Attorney General can be counted on to stonewall, obstruct, distort, and lie every step of the way. The country would be treated to beaucoup windbaggery portraying the whole thing as fake news, a witch hunt, an attempted coup. There would also be a fair share of ill-advised windbaggery from my wing. The possibility that people who consider themselves moderate will conclude that it is all a muck of partisan politicking on both sides and tune out is as likely as it is that new revelations will turn them definitively against Trump and put them in the Democratic camp for 2020. The House may be capable of legislating and debating impeachment at the same time; the media is probably not capable of covering both, and the general public is not likely to focus on both. We could end up pretty much where we are right now, a lot of shouting, nothing resolved.
Impeachment will put first-term Democratic House members from moderate, swing districts in a precarious position. A vote to impeach is liable to jeopardize their seats and the Democratic majority in the House. A nay vote will incur the wrath of progressives, begetting threats of primary opposition from the left and the specter of purists who refuse to support a candidate who was wrong on impeachment, again placing those seats and the Democratic majority in jeopardy. The one thing more terrifying than Trump's reelection is his reelection coupled with a flip of the House back over to a Republican majority.
A congressman whose name I do not recall advanced another sobering scenario: Imagine the Senate voting to acquit the president in the weeks or even days immediately before the 2020 election. That would almost surely be a boon for Trump. It requires no visionary act of imagination to see Mitch McConnell manipulating the timetable to make the vote come down on a date that works to Trump's advantage.
No one knows how it will all play out. It is possible that I am wrong about everything. All we can do is weigh the options, assess the likelihood of the consequences, positive and negative, that come with each, and make our best judgment. This puts me squarely in the Pelosi camp. Continue oversight and investigations, shed light on executive branch subversion of constitutional governance and on a president whose moral compass should be subject to a factory recall, proceed cautiously on impeachment. Pass legislation that will lay the groundwork for a positive, effective Democratic agenda in 2020. The time for impeachment may come. It is not here yet.
Keep the faith.
Perry Bacon Jr., Pelosi’s Agenda Is Popular — Much More So Than Impeaching Trump, FiveThirtyEight, June 11, 2019
Zachary Basu, The impeachment whip list, Axios, June 13, 2019
Russell Berman, Democrats Nod at Impeachment in Passing, The Atlantic, June 20, 2019
John E. Bies, Constitutional Hardball and Congress’s Oversight Authority, Lawfare, April 27, 2019
Derek W. Black, Congressional oversight is at the heart of America’s democracy, The Conversation, April 4, 2019
Jonathan Chait, Just This Week, Trump Has Already Committed 5 More Impeachable Acts, New York Intelligencer, May 21, 2019
Linda Greenhouse, The Impeachment Question, The New York Review of Books, June 27, 2019
Alexander Hamilton, Federalist No. 65: The Powers of the Senate Continued, Congress.gov Resources
High Crimes and Misdemeanors, Constitutional Rights Foundation
Investigations & Oversight, History, Art & Archives, United States House of Representatives
Chris Kahn, Americans' support for impeaching Trump rises: Reuters/Ipsos poll, Reuters, May 9, 2019
Domenico Montanaro, Poll: Support For Impeachment Hearings Grows, But Americans Split On Way Forward, NPR, June 8, 2019
Dominique Mosbergen, A Running List Of All The 2020 Dems Who Want Impeachment Proceedings To Start Now, HuffPost, June 3, 2019
Special Counsel Robert S. Mueller, III, Report On The Investigation Into Russian Interference In The 2016 Presidential Election
Parliamentary Oversight of the Executive Branch: United States, Library of Congress
Molly E. Reynolds, Margaret Taylor, What Powers Does a Formal Impeachment Inquiry Give the House?, Lawfare, May 21, 2019