Impeachment of a Different Kind?

impeachmentnixon
Photographer: MPI/Getty Images, via Bloomberg

Let’s just jump right into it, shall we? There will be plenty of time to go through my various anxieties about starting this blog, but there is a genuine crisis happening south of the border, so let’s get to that first.

Why not start off with the most pressing issue of the week: the coming impeachment of President Donald Trump.

That’s how some commentators would have us see it, at least. What’s more, it appears that the thought of getting rid of the president has also passed from the realm of commentary and into that of action. Today, a Democrat stood up for the first time in the House of Representatives and called for the president’s impeachment. This doomed motion is clearly about forcing Republicans to vote it down, thus tying them to the president and beginning to build a voting history on the issue. It’s largely symbolic, but it marks an important milestone in the development of what might be a long road to the end of the Trump administration.

In the past hour, the Justice Department has appointed a special counsel to lead the Russia investigation, enormously raising the stakes and ensuring, one hopes, an impartial investigation. Long fought for by the Democrats, it represents a significant concession by the White House in the face of the stunning controversy of this week’s developments.

I continue to resist the idea that — barring provable and severe criminal wrongdoing — Trump will be impeached prior to the 2018 midterms. As impeachment is a political process, not necessarily a legal one, impeachment necessitates a wholesale revolt of the Republican party against Trump. I don’t see this happening. The argument in favour of this position, that Republicans would impeach Trump if they saw him dragging down the party enough to threaten the midterms of the 2020 general, is unconvincing at this point. It doesn’t make sense for the Republicans to commit suicide for fear of being killed. More likely, they’ll cut off a leg, distancing themselves as much as possible from Trump while leaving him in office — again, barring legal developments beyond what we can see now.

However, once Democrats regain some portion of the government, as appears likely despite the fact that 2018 seems eons away, impeachment talks may begin in earnest. This is not to say, however, that the scandals that Trump seems to inexorably generate will not continue to play havoc with the Republican’s legislative efforts. The fact that Trump’s scandals both distract from and weaken the support for Republican policy pushes will no doubt help to slowly build the resentment needed for the party to cannibalize its leader at a later date, though not necessarily in the form of removal from office.

Despite the political unlikelihood of impeachment in the near future, this week has seen a dramatic spike in the appearance of the dreaded word. Most of the excitement centres around two key developments in the running battle between President Trump and the intelligence community writ large. Specifically, Trump fired FBI Director James Comey and later it came out that Trump had asked Comey to stop investigating former National Security Advisor Michael Flynn. This second fact, reported by the New York Times and relying on a thus far unseen memo of Comey’s, would amount to the most substantial and workable evidence in a prospective obstruction of justice charge against Trump.

But with the memo yet to materialize and the White House consistently denying the various reports about conversations Comey had with the President, any talk of impeachment should be put on hold — for now.

Rejection of impeachment at the current moment hasn’t stopped some commentators from agitating for the removal of Trump by other means. In particular, New York Times Opinion columnist Ross Douthat wrote an intriguing piece about the possibility of invoking the 25th Amendment to give Trump the boot.

The 25th Amendment is a little-known and even less-used Amendment to the US Constitution which allows for the removal of the president, even against his will, should the Vice President, half the cabinet and two thirds of Congress decide he is “unable to discharge the powers and duties of his office.”

Douthat argues that it is this mechanism, rather than impeachment, which is most appropriate in the special case of Donald Trump. Importantly, he implies that the justification for use of the 25th can exist separately, though in parallel, to the ongoing Comey scandal. The depths of Trump’s incompetence, senselessness, and total intellectual deficiency, Douthat argues, are such that he cannot act as president even if he hasn’t committed a crime.

For anyone who already thinks these things about Trump, it seems like this solution is too good to be true. Of course, it is, for two reasons. First and most obviously, the chances of Vice President Mike Pence, half of Trump’s handpicked cabinet, and two thirds of the Republican Congress getting together to oust Trump are even less likely than impeachment, which requires less stringent criteria. But second, and most importantly, this solution carries with it a host of problems that, taken together, make it worth rejecting (if still fun considering).

Mike Pence
Vice President Mike Pence would assume office after a 25th Amendment process (Credit: AP/Mel Evans/Alex Brandon/Sue Ogrocki)

Douthat’s piece was quickly criticized from a variety of angles, with Charles Cooke of the National Review supplying a particularly important perspective. Cooke, whom Douthat acknowledges may be largely correct, argues that use of the 25th would essentially amount to an elite-led coup against the populist president — the exact thing that fills the darkest spaces in the minds of Trump and many of his supporters.

This sparked a mini-debate and a well-thought out response by Douthat, but the majority of the battle was fought on the grounds of the utility of elites and their relationship to the electorate. While this is a conversation worth having, it only indirectly addresses what may be a more important issue: the value of norms and institutions in the Trump era.

Douthat argued in his response to Cooke that part of the reason Trump came so far so fast and with such devastation was that we were unwilling to do dramatic things. The Republicans weren’t able to band together, Clinton couldn’t make a grand Democratic-Republican coalition to push back the populists. So, he concludes, we need something radical to stop Trump before it’s too late.

That argument is compelling, but as Douthat I’m sure would agree, it amounts to saying: to protect our norms and institutions, we need to break our norms and institutions. Or at least bend them. To defeat Trump, we need to pull out all the stops, and if in doing so we weaken a norm against the legitimacy of elected authority, so be it. If that effort must come from the country’s political elites, then more power to them.

I don’t think we’ve reached the point where we can accept this argument. Even if Trump himself has discredited the office of the President, our job should be to build it back up, not tear it down and start over. Trump may represent a challenge to the democratic system, but he is not beyond the capability of the democratic system to address. There remains a functioning judiciary, an increasingly vibrant press and opposition party, and a Congress that is as wary of its political future as ever (if disturbingly reluctant at the moment). I still have hope that one or all of these forces can fight back against Trump within a functioning system of democratic norms and institutions, one which respects elected office and the will of the people.

The criteria of the 25th Amendment are simply too subjective and, in most cases, anti-democratic to ever be considered better than impeachment. This is not to say that impeachment is perfect, far from it. Impeachment, of course, is heavily dependent on political concerns. Both the Clinton and Nixon impeachments showed how important public opinion is in determining the success or failure of the proceedings.

But the 25th Amendment would be no different. In fact, I believe that the 25th Amendment is even more reliant on the political calculus of the Republican party than impeachment is. It has a subjective criteria of “ability to discharge the powers and duties of the office” rather than the slightly more concrete “treason, bribery, or other high crimes and misdemeanours” required for impeachment. The range of scenarios in which I could argue Trump is incapable of discharging the duties of the president is exponentially greater than those involving reasonable legal charges against him — the very fact that we could debate his capability at this particular moment is evidence of this. This range of possibilities, enabled by the subjectivity of the criteria, increases the possibility of frivolous uses of a very serious constitutional mechanism. At the very least, the legalistic veneer of impeachment gives it more credibility than simply viewing Trump as grossly incompetent.

Impeachment, while flawed, rests firmly within the legal and political framework that we have come to accept as possibilities in American politics. It almost always requires some form of cooperation between parties, and the vulnerability of the process to public opinion makes it more responsive to democratic pressures. But most importantly, it entails a “hard” set of criteria that is lacking in the 25th Amendment process.

Thus, while it’s important to argue for and against the role of the elite in determining when the public doesn’t know what’s good for itself, it’s also important to consider the impact of decisions like this on institutions and norms themselves. Use of the 25th Amendment would not only cheapen the value of elections, it would compound the problem of Trump by fighting fire with fire.

Trump has posed a challenge by attempting to put cracks in the barriers created by liberal-democratic institutions and norms. It would be a costly victory, if a victory at all, to defeat him by shattering those barriers ourselves.

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