When Impeachment?

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https://www.nytimes.com/2018/03/12/books/review/impeachment-cass-sunstei...

It’s really hard to impeach a president.

The founders included the provision, from the very start, as the weakest, “break the glass in case of emergency” mechanism for reining in an out-of-control executive. He was already subject to a four-year term, so he would remain answerable to the people, and to two other branches of government, which could box him in constitutionally. But the founders’ fear of creeping monarchism — the very reason for their revolution — and their deep realism about human nature led them to a provision, rooted in English constitutional precedent, whereby a rogue president could be removed from office by the legislature during his term as well. At the same time, it’s clear they also wanted a strong executive, not serving at the whim of Congress, or subject, like a prime minister, to a parliamentary vote of “no confidence.” He was an equal branch of government, with his own prerogatives, empowered, in Hamilton’s words, to conduct his office with “decision, activity, secrecy and dispatch.” He stood very much on his own feet.

And so the impeachment power was both strong and weak. Strong as it hovered as the ultimate sanction for any president who might push his luck, but weak insofar as it was deliberately limited to the offense of subverting the Constitution itself or betraying the United States in foreign affairs: the famously grave and yet vague Anglo-American terminology of “high crimes and misdemeanors,” which included “great and dangerous offenses.” These were essentially serious political crimes, which was why they had to be dealt with in the political arena rather than the courts. They amounted to one core idea: If the president was to start acting like a king, he could be dispatched.

But if he was to start acting like an idiot, he could not be impeached. If he was psychologically disturbed but not mentally incapacitated, ditto. If he pursued ruinous policies, or faced enormous unpopularity, or said unspeakably reckless things, he could not be impeached. If he committed a whole slew of crimes in his personal capacity, he’d be answerable to public opinion and regular justice, but not subject to losing his job. If his judgment was unstable, his personal behavior appalling or if he were to make the United States a laughingstock in the opinion of mankind, the impeachment provision did not apply.

And even then, the bar for impeachment was very high, as Cass R. Sunstein’s elegant new monograph, “Impeachment: A Citizen’s Guide,” explains: Both House and Senate would have to be involved and in favor; and conviction would require a two-thirds majority in the Senate, ensuring that a clear national consensus was necessary if a president was to be judged to be gravely violating his oath of office, or betraying the country. This is why in well over two centuries the impeachment power has been invoked against sitting presidents only four times, and never actually pursued to conviction. The attempted impeachment of John Tyler in 1842 was rightly rejected by the House of Representatives by a margin of 127-83 (he was guilty of innovating the use of the veto on policy grounds alone), and the impeachment of Andrew Johnson in 1868(on the preposterous grounds that he had no right to appoint his own secretary of war) was turned back by a single vote in the Senate. The impeachment of William Jefferson Clinton in 1998 because of a civil sexual harassment suit squeaked through the House on partisan lines, 221-212, but failed in the Senate, with conviction on the least ludicrous obstruction of justice charge reaching only 50 votes out of a needed 67.

Richard Nixon resigned before a vote in the full House could be taken. Sunstein assesses his articles of impeachment thus: not impeachable for evading taxes (too personal a crime); probably impeachable for resisting a congressional subpoena (but a president could potentially make a legitimate, if dubious, claim about executive privilege); definitely impeachable for covering up an impeachable offense (abusing the powers of the F.B.I., the C.I.A. and the Department of Justice to conceal evidence of an attempt to subvert an election by burglarizing the Democratic National Committee).

Where does this leave us with respect to Donald Trump? Sunstein smartly doesn’t answer the question directly — instead teasing out various hypotheticals with some similarities to our current concerns. Here are a few: directing the Justice Department to prosecute someone for political reasons; pledging in advance to pardon anyone in law enforcement who commits a crime; using the F.B.I. or C.I.A. to get evidence of criminality against a political opponent; egregiously defaulting on his core presidential responsibilities; secretly bribing others in a direct quid pro quo or similarly receiving bribes; and secretly cooperating with a foreign power to promulgate false information against a political opponent. Sunstein thinks each of these is an impeachable offense — as they almost certainly are.

With Trump, these analogies are tantalizingly close but probably not close enough. Firing an F.B.I. director for an investigation into a president’s campaign, for example, is deeply suspicious, but technically kosher, since the F.B.I. director serves at the president’s pleasure. Campaigning to “lock her up” and initiating a new Justice Department investigation into possible illegality by Hillary Clinton likewise could be described, in a pinch, as mere excessive campaign rhetoric or a genuine pursuit of justice. Spending hours watching cable television, refusing to read his daily intelligence briefing, disrupting negotiations with Congress by constantly shifting positions and dictating policy by declarative tweets are all clearly outside what the founders would regard as good executive leadership, but they are too subjective to be a reliable basis for impeachment. Pardoning Sheriff Joe Arpaio for violating the Constitution could be defended, however dubiously, as merely an act of compassion for an old man. Failing to abide by clear ethical rules by refusing to divest all business projects is an egregious outrage, but not provable bribery. Venting at an attorney general for recusing himself from a case in which he was involved (but not actually firing him) doesn’t make the cut either.

What about passively cooperating with a foreign power to subvert an American election and then, after clear proof of such interference, refusing to counter that foreign power’s intent to disrupt the next election too? If a president unwittingly benefited from a foreign foe’s meddling (“no collusion!”), and he’s merely guilty of failing to do enough to counter that power’s continuing assault on the American democratic process, he’s in the clear. But if he is actively neglecting a defense of this country’s electoral integrity because he believes the Kremlin helped him win an election in the past, and will almost certainly help him and his party in the near future, then impeachment is a no-brainer. If he knew of the meddling at the time and encouraged it, ditto. In those cases, you have a combination of treason and defaulting on the core responsibilities of his office — at the center of the founders’ concerns (especially being too close to a foreign government). The trouble here is that we have, so far, no proof of anything but a willingness to collude with a foreign power’s interference; and no clear evidence at all of the president’s personal involvement with foreign actors.

Yet even if that evidence were incontrovertible (and that could still emerge in Mueller’s investigation), impeachment remains a political decision. Which means that unless we experience some kind of unprecedented sea change in the pathological tribalism that now defines our politics, impeachment is a dead letter. What makes Trump immune is that he is not a president within the context of a healthy republican government. He is a cult leader of a movement that has taken over a political party — and he specifically campaigned on a platform of one-man rule. This fact permeates “Can It Happen Here? Authoritarianism in America,” a collection of essays by a number of writers that has been edited by Sunstein, which concludes, if you read between the lines, that “it” already has.

No, Trump is not about to initiate a coup, or suspend elections or become a dictator. The more likely model for American authoritarianism is that of Recep Tayyip Erdogan in Turkey or the Fidesz party in Hungary. The dismemberment of a public discourse centered on objective truth is a key first step, fomented by unceasing dissemination of outright lies from the very top, metabolized by tribal social media, ever more extreme talk radio and what is essentially a state propaganda channel, Fox News. The neutering of the courts is the second step — and Trump is well on his way to (constitutionally) establishing a federal judiciary whose most important feature will be reliable assent to executive power. Congress itself has far less approval than Trump; its inability to do anything but further bankrupt the country, enrich the oligarchy and sabotage many Americans’ health care leaves an aching void filled by … a president who repeatedly insists that “I am the only one who matters.”

I don’t think Trump has a conscious intent to vandalize liberal democracy — he doesn’t even understand what it is. Rather, his twisted, compulsive insecurity requires him to use his office to attack, delegitimize and weaken every democratic institution that may occasionally operate outside his own delusional narcissism. He cannot help this. His tweets are a function of spasms, not plots. But the wreckage after only one year is extraordinary. The F.B.I. is now widely discredited; the C.I.A. is held in contempt; judges, according to the president, are driven by prejudice and partisanship (when they disagree with him); the media produce fake news; Congress is useless (including both Republicans and Democrats); alliances are essentially rip-offs; the State Department — along with the whole idea of a neutral Civil Service — is unnecessary. And the possibility of reasoned deliberation at the heart of democratic life has been obliterated by the white-hot racial and cultural hatreds that Trump was able to exploit to get elected and that he constantly fuels.

The Democrats find themselves in opposition a little like Marco Rubio in the primaries. Take the high road and you are irrelevant; take the low road and you cannot compete with the biggest bully and liar on the block. The result is that an unimpeachable president is slowly constructing the kind of authoritarian state that America was actually founded to overthrow.

There is nothing in the Constitution’s formal operation that can prevent this. Impeachment certainly cannot. As long as one major political party endorses it, and a solid plurality of Americans support such an authoritarian slide, it is unstoppable. The founders knew that without a virtuous citizenry, the Constitution was a mere piece of paper and, in Madison’s words, “no theoretical checks — no form of government can render us secure.” Franklin was blunter in forecasting the moment we are now in: He believed that the American experiment in self-government “can only end in despotism, as other forms have done before it, when the people become so corrupted as to need despotic government, being incapable of any other.” You can impeach a president, but you can’t, alas, impeach the people. They voted for the kind of monarchy the American republic was designed, above all else, to resist; and they have gotten one.