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Impeachment and its misconceptions explained

posted by Jason Kottke   Jul 05, 2017

At the recent Aspen Ideas Festival, legal scholar and former Obama advisor Cass Sunstein shared some views on his understanding of and some misconceptions about impeachment, namely that it doesn’t need to involve an actual crime and “is primarily about gross neglect or abuse of power”. Or as he put it more formally in a 1998 essay in the University of Pennsylvania Law Review:

The simplest is that, with respect to the President, the principal goal of the Impeachment Clause is to allow impeachment for a narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential powers. On this view, a criminal violation is neither a necessary nor a sufficient condition for impeaching the President. What is generally necessary is an egregious abuse of power that the President has by virtue of being President. Outside of this category of cases, impeachment is generally foreign to our traditions and is prohibited by the Constitution.

The “distinctly presidential powers” bit is a high bar to clear. Examining the case for Nixon on that basis, and only some of the reasons for wanting to impeach him hold up.

Richard Nixon nearly faced four counts. One failed count, for tax evasion, was completely inappropriate, Sunstein argued: Though an obvious violation of law, it had no bearing on Nixon’s conduct of the presidency. A second charge, for resisting subpoena, is possibly but not necessarily valid, since a president could have good reasons to resisting a subpoena. A third is more debatable: Nixon was charged with covering up the Watergate break-in. Nixon might have been more fairly prosecuted for overseeing the burglary, Sunstein argued, but nabbing him for trying to use the federal government to commit the cover-up was “probably good enough.” Only the fourth charge, of using the federal government’s muscle to prosecute political enemies, is a clear slam-dunk under the Founders’ principles.

Clinton’s impeachment, argued Sunstein in that same Penn Law Review essay, was less well-supported:

I suggest that the impeachment of President Clinton was unconstitutional, because the two articles of impeachment identified no legitimate ground for impeaching the President.

Sunstein explained the intent of the members of the Constitutional Convention in a Bloomberg article back in February. It’s interesting in the light of the Russian collusion investigation that the debate about impeachment at the convention centered around treason.

James Madison concurred, pointing to cases in which a president “might betray his trust to foreign powers.” Gouverneur Morris added that the president “may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.”

So what about Trump? Sunstein doesn’t offer much (no apparent mention of collusion with Russia):

Sunstein, having scolded legal colleagues for playing pundit, was reluctant to address the question directly. Setting aside the impossibility of impeaching Trump under the present circumstances of GOP control of Congress, Sunstein said he was wary of trying to remove the president simply for being bad at his job. Nonetheless, he said Trump’s prolific dishonesty might form a basis for trying to remove him.

“If a president lies on some occasions or is fairly accused of lying, it’s not impeachable — but if you have a systematic liar who is lying all the time, then we’re in the ballpark of misdemeanor, meaning bad action,” he said.

If I were a betting person, I would wager that Donald Trump has a better chance of getting reelected in 2020 than he does of being impeached (and a much better chance than actually being removed from office through impeachment) if the Republicans retain their majority in Congress. Although their healthcare bill has hit a hiccup due to public outcry (and it’s only a hiccup…it will almost surely pass), Congressional Republicans have shown absolutely no willingness to do anything not in the interest of their agenda…so why would they impeach a Republican President who is ticking all of the far right’s action items thus far?