What do you do when Republicans refuse to take seriously what they would find absolutely appalling and outrageous, criminal and treasonous, disgusting and constitution-threatening if it were done by a liberal Democrat? We all know that if the situation were reversed and Barack Obama had reached out to Pakistan to demand that they pretend to investigate Jeb Bush or Donald Trump that the Republicans would be having what we used to call a conniption fit, and we’d be in a constitutional crisis at least as severe as this one.
If you are going to argue that Donald Trump may be a vulgar schnook, but we all knew that and this is just one more unseemly episode, but it’s not worth bringing the country to halt for a couple of months over this, I can understand that. I was actually quite taken by some of Jonathan Turley’s arguments in the House judiciary televised hearings a few weeks ago. What’s the rush? he asked. The Trump administration has refused to comply with House subpoenas both for documents and for administration witnesses—on the grounds of executive privilege and separation of powers. The House of Representatives has initiated court cases designed to bring the US Federal Courts to order Trump to comply. That would enlist a second of the three branches of the national government into this crisis.
I do think the House should see the court cases through, because I believe the country needs the legal imprimatur of the US Judiciary to force President Trump to turn over the documents the House needs and to permit administration officials to testify before Congress. If the courts re-affirmed that no president can ignore legal subpoenas and that Congressional oversight is not only legitimate but essential to the maintenance of the checks and balances that are at the heart of our constitutional system, that would do four things. I would show that the impeachment investigations are not just partisan machinations. It would show that the referee branch of our national government endorses the legitimacy and importance of congressional oversight and investigation. It would either bring President Trump to comply with clear federal court orders or, if he defied the rulings of the courts, it would confirm the lawlessness of his administration, and thus bring much more legitimacy to the process. I agree with Turley: this is so grave that there is no hurry. If this is worth doing it is worth doing right, because impeachment is that grave.
Thomas Jefferson tried to impeach a couple of High Federalist members of the US judiciary. When Samuel chase was acquitted after his Senate trial, Jefferson threw up his hands and said impeachment is a bungling way of dealing with bad federal judges, and he desisted for the remainder of his time as President. It should tell us something that in the previous three impeachment episodes in American presidential history (Andrew Johnson, Richard Nixon, Bill Clinton), not one has ended in conviction and removal by the United States Senate. Getting a two-thirds majority to remove even a person of undisputed corruption, a person manifestly unfit for high office, is probably too high a bar ever to succeed, even if that person shot someone on Fifth Avenue. And if that event occurred, there are people in the House of Representatives who would apparently say: a: that never happened in spite of the live video footage; b: the edited White House version of the video is the one we should be using; c: the guy the president killed was known to be corrupt and all the president was doing was trying to end corruption in New York City, d: whatever the president does must be legal under the theory of a unitary executive; e: ok, he may have done a bad thing, but it doesn’t qualify under the historically specific meanings of treason, bribery, or other high crimes and misdemeanors; f: there is an election coming, let the voters decide if it is ok to shoot a man down on the streets of Manhattan; g: this is a witch-hunt.
I thought Bill Clinton should resign when the Monica Lewinsky scandal broke. I thought President Reagan should be pressured to resign over the Iran-Contra scandal, when he deliberately violated a specific Congressional law prohibiting providing military aid to the right-win Nicaraguan Contras, and then had everyone in his administration lie about it under oath, including vice president George Herbert Walker Bush. I thought Barack Obama should be checked for his misuse and overuse of executive orders to fill the vacuum caused by congressional stalling and inaction.
It was John Adams who said nobody in America is above the law, and that includes, of course, the fundamental law of the land, the US Constitution. Whenever this occurs, as it now routinely does, we need to come down on extra-constitutional behavior like a ton of bricks. If we did that from time to time, and at least passed a vote of Censure in the US Senate, and maybe removed a few of these self-aggrandizing presidents, we would be more like a republic.
If you want to argue that they all do it, that the Constitution, ratified in 1788, is no longer a strictly enforceable guide to public political behavior, that it is in fact a little bit quaint in a world of cyberwarfare and globalism, ok, but then say farewell to the rule of law. I may be naïve, but I would think pressuring a foreign nation to meddle in our next national presidential election would constitute a slam dunk impeachable offense. If not this, what is an impeachable offense?
I’m with the cautious law scholars, and with Nancy Pelosi and Jerry Nadler in their more cautious moods, that a strictly partisan impeachment in which not a single Republican vote for any one of the articles, makes things worse rather than better in our already-broken-down constitutional system. Impeachment needs to be bipartisan at least to a certain extent. I don’t understand why a few dozen Republicans don’t do publicly what we know they are doing privately—i.e., acknowledge that what the president has done is appalling and impeach-worthy—but if they don’t or won’t I think maybe we had better wait for the election. An impeachment needs to have legitimacy. It needs to command a supermajority: that’s why the Founders said removal requires two thirds of the Senate, a high bar then and an impossible bar now. A legitimate impeachment needs to be bipartisan. Fair enough, but it’s the hypocrtisy that kills me. We all know those same republicans would be slathering for impeachment if the situation were reversed—does anyone doubt that? —I’m serious, does anyone doubt that? —so if we follow my logic here, we must accept what it signifies. That the American Republic is dead. If we were a republic there would be scores of Republicans who would vote their conscience rather than political expediency and partisan solidarity on this issue. What we are witnessing—and some even admit it—is the strategy of political survival rather than justice or due process. The desire to survive the next election matters more to them than the US Constitution. Power matters more than principle. Don’t get me wrong. I think it might be similar if the situation were reversed, but remember back when Bill Clinton was impeached a large number of Democrats publicly condemned his behavior, acknowledged that he had violated his oath and damaged the country, demanded that he show contrition (and he did), even contemplated the idea of a vote of Censure against him in the US Senate.
I don’t see any of that yet among today’s Republicans. I have lost respect for them. And unless you are just an absolute Trumpite—my Trump right or wrong, my Trump especially when he is wrong—or unless you are just nakedly partisan—you have lost respect for the Republicans, too.
Benjamin Franklin said, a republic if you can keep it. I am watching us blithely toss it into the sewer.
My pessimism and fear come from the fact that nobody in the Republican Party condemned President Trump’s actions. No Republican said that Mr. Trump’s attempt to pressure Ukraine into announcing an investigation of his chief political rival in the 2020 election was wrong, a violation of public trust, an offense against fair play, and an assault on our system of elections.