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Posted by on Jun 21, 2018 in Books, History, Law, Politics | 0 comments

Yes, President Trump Should Be Impeached. But Be Very Careful Of What You Wish For.


The toxic fallout from the transformation of the Republican Party into a Donald Trump-worshipping cult controlled by racists, white nationalists, misogynists, gerrymanderers, flat earthers and other extremists will be felt for years to come even as the one-time Party of Lincoln inevitably faces eventual national electoral oblivion. But nowhere is its evil more immediately and deeply felt than in congressional Republicans’ unquestioning support of Trump and their neutering of the most effective tool in the constitutional kit bag to rid America of a bad president — impeachment.

This is hammered home in a splendid and vitally important new book — To End a Presidency: The Power of Impeachment by constitutional law powerhouse Laurence Tribe and legal scholar Joshua Matz.

While believing that there are ample grounds for Trump’s impeachment (more about that later), the authors offer not the polemic you might expect from flaming liberals but a judicious and deeply cautious study in which they warn that impeachment is a very dangerous thing and its advocates in the Age of Trump are well advised to proceed with extreme caution. The reason that the man who already has a lock on being the worst and certainly the most destructive president in history after only 17 months in office is not likely to be impeached without a Democratic takeover of the House of Representatives and even then is unlikely to be removed, is the absolute fealty of those congressional Republicans no matter how destructive, outrageous and downright treasonous Trump’s actions and the misprisons of their constitutionally-mandated are.

Write Tribe and Matz:

“Well-justified calls to impeach the president can simultaneously empower him, harm his political opponents, and make his removal from office less likely . . . Because removing a truly determined tyrant may unleash havoc, the risks of impeaching a president are apt to be most extreme precisely when ending his tenure is most necessary.”

The Founding Fathers, in carefully crafting a means to remove a tyrannical president from office, got it mostly right. Impeachment is a fraught process, requiring both the House as impeacher and Senate as judge and jury, and built into the process are numerous checks to prevent impeachment from being used frivolously.

That is why a mere five presidents faced credible impeachment threats up until the 1992: Andrew Jackson, John Tyler, Andrew Johnson, Richard Nixon and Ronald Reagan. By contrast, To End a Presidency notes that every president since that year has faced a real treat of impeachment.

Bill Clinton, of course, actually was impeached, although less because of impeachable conduct as president than a partisan witch hunt over Whitewater that morphed into prurient outrage over his lies concerning Oval Office blowjobs when allegations over that problematic Arkansas land deal wouldn’t stick. (This hyper-partisan zeal to get Clinton foreshadowed even more intensive Republican efforts to obstruct Barack Obama.)

What the Founders could not have anticipated in crafting the Impeachment Clauses was a fundamental breakdown in the balance of federal powers they so carefully constructed any more than the Second Amendment’s provision for a “well-regulated militia” resulting in a long mature republic where there would be 300 million guns carried concealed in shoulder holsters and belts, stowed in car trunks, arrayed on pickup truck rifle racks, and displayed in cabinets and over fireplaces, the result being a sick subculture that encourages the purchase, possession and carrying of unlimited numbers of those weapons whose sole purpose is to kill and maim.

That balance-of-power breakdown is, of course, because of a Republican-controlled House so profoundly irresponsible as to abet Trump’s methodical destruction of every value we hold dear, and in the case of the Russia scandal, to conjure increasingly wackier, fact-absent deep-state plot conspiracies against the president in demanding an end to Special Counsel Robert Mueller’s lawful investigation.

Driving the House Republicans’ hubris is that we live in an era of the permanent campaign — and the unrelenting background noise of impeachment whether the president be a Bush or Obama — and that the concept that a president could be a threat to our democratic system has faded because faith in the system has faded.

Write Tribe and Matz:

“Many Americans who voted for Trump view themselves as belonging to a victimized, disenfranchised class that has finally discovered its champion. For some of them, Trump’s appeal is less what he will accomplish programmatically than whom he will attack personally. Were Trump removed from office by political elites in Washington, D.C. — even based on clear evidence that he had grossly abused power — some of his supporters would surely view the decision as an illegitimate coup. Indeed, some right-wing leaders have already denounced the campaign to remove Trump as a prelude to civil war. This rhetoric, too, escapes reality and indulges pernicious tendencies toward apocalyptic thinking about the impeachment power.”

Although it will explode liberal heads, Tribe and Matz note time and again that impeachment is a political question, not a legal one.

Consequently, while the Founders’ “high Crimes and Misdemeanors” — their enigmatic catch-all as grounds for impeachment in addition to Treason and Bribery—would appear to fit neatly with Trump’s misdeeds, impeachment may still be unwise because it would be so divisive that the price may be higher and the benefits more modest than Democrats and others would envision.

Tribe and Matz argue — albeit in the abstract — that a race to impeachment can short-circuit public deliberation and preclude a president admitting error and promising to do better. Well, there already has been ample public deliberation and Trump as a textbook malignant narcissist will never admit erring, let alone apologize.

Still, there is the deeply sobering reality that even if Democrats recapture the House, their majority is likely to be gruel thin and possibly insufficient to approve articles of impeachment — although that only would require a simple majority — and forward the articles to the Senate for trial, where in the Founders’ infinite caution they established the high bar of a two-thirds majority to convict.

(The Senate vote to convict Bill Clinton on a single article of impeachment on a perjury charge failed by a 45-55 vote, and in the end the Republican-led impeachment effort was an expensive and time-consuming flop because the public correctly viewed it as an exercise in partisan animus.)

So what’s to be done?

Tribe and Matz say the answer is politics, because grand visions of putting Trump on trial

“[F]alsely devalue other ways of defending democracy, including popular activism, local and state political engagement, filing lawsuits, donating to civil rights groups, and undertaking private ventures in the public interest.”

I feel and share your pain. Or at least feel it, but the view posited in To End a Presidency is cold, clear and lucid to a fault. The authors write that:

“Trump will not be removed from power unless a large number of Republicans and independents, along with Democrats, agree that he has to go. But the truth is that most of those voters don’t believe the sky is falling. Nor are they automatically inclined to view impeachment as an appropriate sanction for Trump — even when they disagree with him or find him embarrassing. . . . And they may be especially wary of joining an impeachment crusade led by a party that they otherwise disdain. . . . It is hard enough to persuade the president’s supporters under any circumstances that he should be removed for ‘high Crimes and Misdemeanors.’ We doubt the wisdom of making it harder still by describing that effort as the first shot of a revolution — or, even less realistically, as a revolution in itself.”

For the record, while Tribe and Matz argue for moderation — that it may be better to not impeach Trump — they believe he meets impeachment criteria on three grounds:

First, that he came into office illicitly through his campaign’s collusion with Russia to cybersabotage Hillary Clinton, possibly because the Kremlin has withheld embarrassing or incriminating information about him in return for his cooperation, and that he has obstructed justice in firing FBI Director James Comey and enlisting his Republican sycophancy to threaten and undermine Mueller.

Second, flagrantly violating the constitutional prohibition against unlawful emoluments through his continuing ownership stake in the Trump Organization and numerous actions as president to benefit his private financial interests in how he has dealt with foreign government officials, as well as elevating his own children to prominent public positions.

And third, his pardon of Joe Arpaio, the Arizona sheriff, which can be accurately characterized as the presidential endorsement of violent racism because Arpaio had perpetrated a campaign of terror and atrocities against vulnerable Hispanics and was held in contempt by a federal judge for repeatedly ignoring the rights of undocumented migrants.

The bottom line is that Congress cannot escape final responsibility for checking a president’s conduct, especially that of an abusive president like Trump, but the current one has.

There is a final, irrefutable argument for trying to impeach Trump:

If we don’t at least try, what misdeeds might a future president get away with if an effort were not made to impeach based on his multiple betrayals of his oath of office, and in the process squandering what arguably is the most effective weapon against treachery of his sort? If Trump gets away with it, which would have the effect of normalizing corruption and the abuse of power, as well as dealing a mortal blow to the constitutional order, what would a future president have to do to warrant impeachment?

Trump has in my view, and for all intents and purposes, been a Russian agent because of his determination to do Vladimir Putin’s bidding, but the biggest question remains whether democracy will survive him with or without impeachment.

In the end, that may not matter, because as awful as Trump may be — and we are living through the slow-motion death of American democracy — he still is a symptom of our national malaise and not the cause.

For related reading, I suggest my post on “Tribalism Run Amok:Trump Did Not Make America What It Is, America Made Trump”

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