If We Don’t Impeach Trump, What Will The Next Guy Look Like?

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From a longer piece by Keith E. Whittington for LawFare 

We often talk about impeachable offenses as if they were a tripwire, a trigger that sets in motion a constitutional mechanism to remove guilty government officials. This is a mistaken way to think about the impeachment power, and it is misleading in a couple of important ways. First, it wrongly treats the impeachment process as mechanical. The impeachment power was vested in Congress because the assessment of whether impeachable offenses have been committed and what actions ought to be taken ineluctably requires political judgment and benefits from public responsiveness. Second, it ignores the ways in which the impeachment power is forward-looking rather than backward-looking. We might intuitively think of impeachable offenses as like criminal offenses for which the offender should receive their just desserts, but the impeachment process is fundamentally a constitutional remedy to a grave political problem. Whether the offending officeholders receive their just desserts is a secondary concern.

If use of the impeachment power is an exercise in forward-looking, political judgment, then it is worth thinking carefully about what the downsides might be of refraining to pursue an impeachment inquiry in the face of impeachable offenses.

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If members of Congress were to refrain from acting on impeachable offenses, there are a set of potential downsides for the constitutional system as a whole. The most compelling reason for Congress to act is that only such action would set the system aright. If an official is abusing their constitutional powers, impeachment and removal might be the most effective means for preventing further abuses. The more common concern is not that the officer in the crosshairs of a potential impeachment might continue to engage in impeachable offenses in the future if left alone, but that the officer will set a bad example for others. Indeed, the past sins of the officer might be so severe that they leave a permanent stain that cannot be removed with time. The individual who has committed an impeachable offense may no longer be able to effectively perform the duties of his or her office, and thus resignation or removal might be the only remedy for moving out of the long-shadow of a past notorious offense.

The argument that President Clinton had sullied the dignity of his office fell close to this concern. The office could only be restored, from that perspective, by his departure. Similarly, a judge who had once engaged in unethical behavior might find that all future actions were tainted by memory of that event and as a consequence their ability to effectively exercise the duties of their office would be compromised. A Congress that refused to remove a judge in that situation risked enduring damage to the integrity of the judiciary.

If Congress tolerates officers who commit high crimes and misdemeanors, it sends a signal to other officers that those crimes are not beyond the pale. Often, the political conventions that the officer is violating are well known and well established. A judge who accepts bribes is not taking advantage of a legal grey area; he is violating the basic expectations regarding judicial good behavior. If Congress passively tolerates such violations of political norms, there is a risk that those norms will be gradually eroded over time. In other cases, the norms are not so well established, and an impeachment can do shift and consolidate constitutional conventions so as to send a message to all future political actors as to what good behavior should look like going forward.

The impeachment of Justice Samuel Chase for his partisan behavior on the bench in the run-up to the election of 1800, contributed to establishing a new norm against political partisanship by federal judges. Ignoring Chase’s behavior would have been an open invitation to judges to behave similarly in future electoral contests. The Jeffersonians seized the opportunity to make an example of Chase and clarify how the constitutional system should work going forward. His actual removal from the bench was unnecessary to accomplish that goal: while he was ultimately acquitted, the impeachment itself did most of the work.

Knowing the facts about what happened in a particular scandal is important but can hardly determine whether Congress should move forward with an impeachment effort. This requires political judgment, and is perhaps one of the most important decisions that a member of Congress can make. The dangers and challenges of moving forward with an impeachment effort are often obvious, but members of Congress should think carefully as well about the risks involved in refusing to pursue an impeachment when one might be warranted. The threat of impeachment is a big stick that can help sustain constitutional norms and deter constitutional abuses. If that stick is put on a shelf and never put into play, Congress might find that some who hold an office of trust under the United States are emboldened to behave badly.

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6 thoughts on “If We Don’t Impeach Trump, What Will The Next Guy Look Like?

  1. Isn’t it true that this particular president is 100% deserving of impeachment – as defined in this article – clearly he is the epitome of impeachable! How the hell do the American people motivate Congress to take action?!?

    – Murphy

    • I am guessing that it is difficult when he inexplicably still has so much of the popular vote. But as he continues to alienate his base, it will become much easier to give him the boot. Only 6 months in office, imagine another year or two. If we aren’t reduced to nuclear war by that time.

      • well, I would never refer to that group who worships him as “so much of the popular vote”! Clearly not a threat. There comes a time when one has to make a difficult choice. This is one of those times. Either we wait out the incredibly ignorant defiant little cult – many of whom are just in it for the thrill of the battle and filled with hate – and while we wait….. the air is toxic, the water is undrinkable, cannot eat the fish that swim in it, people are dying from lack of healthcare, National Parks have gone to ruin, teachers have no jobs because there are no public schools, farmer’s crops rot in the fields, hospitals and emergency care have closed, banks have failed, small businesses have collapsed….. So when do you draw the line and not let that little clutch of mouthy morons completely disrupt America’s Democracy? NOT to mention that nuclear war thing!!

        – Murphy

  2. Chase is an interesting case.

    Here’s a good one for you. The impeachment case Judge Walter L. Nixon, once the Chief Judge of the U.S. District Court for the Southern District of Mississippi. He was impeached by the House and convicted by the Senate for, among things, bringing disrepute on the federal judiciary and giving false testimony to a grand jury investigating allegations that he had been bribed. After an investigation into reports that Nixon had asked a local district attorney to stop the prosecution of a man whose father had enriched Nixon through an investment scheme, a grand jury indicted Nixon on one count of receiving an illegal gratuity and three counts of perjury before the grand jury. At trial, Nixon was convicted in 1986 on two counts of perjury and acquitted on the other two counts. He was sentenced to prison, and his conviction was affirmed on appeal. Even after his conviction, here refused to resign from his office as a judge, and while serving time in prison he continued to draw his judicial salary. The House of Representatives began impeachment proceedings, and on May 10, 1989, it voted to impeach Nixon on three articles charging him with giving false testimony to the grand jury and bringing disrepute on the federal judiciary and the Senate convicted him. Nixon had the chutzpah to seek review of his impeachment conviction in the federal courts and took the case all the way up to the SCOTUS where he lost based upon the court’s holding that Nixon’s claim was nonjusticiable, i. e., involved a political question that could not be resolved by the courts and was only to be resolved by the House and Senate.

    Nixon was disbarred in 1990. The Louisiana State Supreme Court ruled in May 1993 that he could be readmitted to the state bar after passing the exam. He has since been readmitted and practices law in Biloxi, Louisiana.

    http://www.legaldirectories.com/Nixon-Walter-L-Jr-404731-Atty.aspx

    How about they impeach and convict Trump on bringing disrepute to the Executive Branch? Slam Dunk?

    • wow. Hard to believe. I wonder why we do not or did not address the first issue — the first “hole” in the political procedures that allowed him to crawl thru and allowed him to retain his judgeship (is that a word?) after his guilty verdict and imprisonment! Insanely ridiculous! THEN to allow a felon to take the bar exam and become a lawyer is off the charts ridiculous! How does that new ‘hole’ not be closed? A Federal Judge convicted of a felony in 1986, 5 yr term but paroled in 2 yr, and retakes bar and gets his license to practice law, 1989, violated parole for carrying a gun 1990 (hunting birds using bait, $100 bond out of jail) and is still practicing law. (cases of dog bites, personal injury slip and fall, estates, wills) The REAL CRIME HERE WAS TO IGNORE HOW THIS HAPPENED AND NOT FIX IT! (minor correction, Biloxi is Mississippi, not La.)
      http://www.lawyers.com/biloxi/mississippi/walter-l-nixon-jr-36336835-f/

      Lesson be learned: There must be a repair to our current ‘system’ that allowed trump into the WH. Maybe a couple of problems…..electoral college (#1 problem in my book!) and an imbalance in Congress that has control of majority vote – and they let our Democracy crumble while they destroy decades of change that has cleaned up our environment – so they can make more money – so they don’t have to spend their money on helping the less privileged – so they alone can rule over America. Disgusting. (but I will trust Karma!)

      – Murphy

  3. “A Congress that refused to remove a judge in that situation risked enduring damage to the integrity of the judiciary.”

    A single party dominated Congress, failing to remove a President of the same party, not only risks its “integrity,” but legally it wouldn’t be a stretch to accuse them of being accomplices to the same crimes of that President. Were the President’s (Trump’s) crimes proven to be collusion with and enemy state (Russia) and treason, then the current Republican leadership would be equally guilty of treason and should be prosecuted with vigor.

    Since the most authorities on the historic collapse of other similar democratic nations in history agree that once a democracy is divided to the point where there is no majority (publicly or Congressionally) to make an effective decision – such an above prosecution is improbable. However, they might agree that military coups (as suggested in another H article) are increasingly more probable – and well may be the only functional solution to an impotent Congress and a corrupt President – like Trump – to prevent the collapse of its indecisive, ineffective, and inefficient democracy.

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