Should Congress Impeach Trump? Definitely Maybe.
Build the case before dropping the hammer.
Now that they are in possession of the documentary evidence of Donald Trump’s mendacity, Democrats appear divided about what to do next.
Anxious to kickstart her flagging presidential bid, Elizabeth Warren got a jump on her fellow Democrats by calling for the immediate commencement of impeachment proceedings and was joined by single-digit contender Julian Castro. But other Democrats, including House Intelligence Committee Chairman Adam Schiff seem more cautious.
In an appearance on ABC News’s “This Week,” Schiff also said that while the findings of the Mueller report are “serious and damning,” he does not believe the Senate would convict Trump if the House were to impeach him.
“Now, it may be that we undertake an impeachment nonetheless. I think what we are going to have to decide as a caucus is: What is the best thing for the country?” he said. House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) was also restrained, although he acknowledged that “if proven,” Trump’s obstruction of justice “would be impeachable.”
“We may get to that,” Nadler said. “We may not. As I’ve said before, it is our job to go through all the evidence, all the information we can get.”
But this difference over impeachment is less substantive than it is tactical. And there are plenty of reasons for caution.
In their book, To End a Presidency, Laurence Tribe and Joshua Metz provide a powerful warning about the dangers of unsheathing the impeachment dagger.
So far in American history, they note, no president has ever been removed from office, so “we have no historical experience with the full consequences of pushing that red button.” But they warn that a successful impeachment “would inflict enduring national trauma.”
For months or years, politics would shift from ordinary governance toward a grand inquest into the president’s alleged evil deeds. With the highest conceivable stakes, political interests and factions on every side would hold nothing back. The resulting enmities, cynicism, and disenchantment with democracy could persist for generations.
During that time, the country would look “vulnerable to its enemies and unreliable to its allies.” And there are other dangers as well: “An embattled president – or his opponents,” they write, “might engage in acts of desperation that shatter norms, institutions, and the rule of law.” Hmmmm, sounds familiar, no? Any impeachment effort runs the very real risk not just of splitting the country apart, but also badly damaging the underpinning of democracy.
So they establish a test centering around three vital questions: “First, has the president engaged in conduct that authorizes his removal under the standard put forth in the Constitution? Second, as a matter of political reality, is the effort to remove the president likely to succeed in the House and then in Senate?”
And finally: “[I]s it genuinely necessary to resort to the impeachment power, recognizing that the resulting collateral damage will likely be significant” or, in other words, is removing a president “worth the price the nation will pay?”
The three questions underline the complexity of the decision that the Democrats have to make; but they also suggest that it may be simpler than it appears on the surface.
The Mueller report lays out more than enough evidence to proceed with charges of obstruction of justice (answering Question 1); but there is no reasonable prospect that Republicans would ever permit Trump’s removal from office (Question 2). So, if the trauma of removal is off the table, the stakes and the price are accordingly reduced.
This doesn’t mean that impeachment is risk-free, but it does change the calculus. It also suggests that the choice is not binary: Democrats do not have to choose between inaction and impeachment. Rather, as the Washington Post notes, House Democrats can “take on the separate task of trying to distill and publicize the most alarming parts of the Mueller report in hopes of making the president’s behavior in office feel consequential for more voters.”
So this can proceed on two tracks: high-profile investigations and hearings that may or may not lead to formal impeachment. In other words: Build the case with the public before dropping the hammer of impeachment. The process would, in effect, be a show trial. But perhaps a show trial is exactly what is needed.
Over the weekend, I was asked about this on MSNBC: After three years, the host wondered, why would it be necessary to make a case? My answer: because most folks weren’t paying attention; they did not hang on every report about the Russia investigation; they did not obsess over every twist and turn of the complex scandal; and they are not likely to read the full 448 page report.
Hearings on the other hand would provide an opportunity to begin to educate the public and perhaps ever-so-slightly shift public opinion. Maybe nothing does matter anymore, but for many Americans these televised hearings may be their most dramatic introduction to the reality of the Trump presidency. Not even Fox News could resist the public testimony of Robert Mueller, or former White House Counsel Don McGahn, and even a small erosion of 2 or 3 percentage points from Trump’s support could prove decisive, given the small size of his actual base. Imagine, for a moment, that the ultimate must-see TV leads to the downfall of the reality-show president.
Congress could also pass legislation clarifying key issues, including the obligation of campaigns to inform the FBI if they are approached by foreign interests and the status of stolen electronic data. They should also address the threats to electoral integrity, especially given the evidence of ongoing Russian attacks. Mitch McConnell is likely to block vote such legislation in the Senate, but Democrats should nonetheless try to force Republicans to go on the record one way or another.
But Congress cannot disentangle its constitutional responsibilities from the politics. If the president cannot be charged with a crime and Congress will not exercise its oversight responsibilities, the president is literally above the law.
And this seems to be at the heart of the Mueller report: It is an open invitation to Congress to exercise those constitutional responsibilities when confronted with the corruption of a sitting president. Given the voluminous evidence of Trump’s misconduct detailed in the report, the failure to hold hearings would not only normalize Trump’s behavior but would also constitute a gross abdication of congressional responsibility.
A decision not to take action would, in many ways, be as consequential as the decision to impeach. Writing at Lawfare, Susan Hennessey and Quinta Jurecic argue that given the evidence in the Mueller report, “to not act is to accept the president’s conduct as tolerable—be it for 18 more months or four more years.”
In the face of this evidence, for Congress to not even consider impeachment as a matter of serious inquiry is to declare that the legislature is not interested in its carrying out its institutional obligations as a coordinate branch of government. …
Eventually it will face the task the Constitution commits to the legislative branch, which is to render a judgment. But “eventually” is not now.