The question for Democrats and Republicans isn’t really what qualifies as an impeachable offense for a president? (The answer to that, according to the Constitution, is treason, bribery “or other high crimes and Misdemeanors.”) It is, to paraphrase then-Rep. Gerald Ford memorably in 1970, what “a majority of the House of Representatives considers [impeachment] to be” at this moment in history.
Impeachment is actually neither a wholly judicial proceeding nor an entirely political one: In order to be successful, impeachment proceedings must check the political box of achieving broad public support, which in turn requires voters to view the process as credibly judicial rather than strictly partisan.
The system, in other words, makes removing a president from office by way of brute force partisanship nearly impossible. Given that political polarization is already endemic, it is an open question whether bipartisan consensus on what constitutes impeachable offenses would even be achievable in the age of Trump.
The system makes removing a president from office by way of brute force partisanship nearly impossible.
But the most reliable way to ensure that such consensus will be impossible would be for either party to make impeachment (or preventing an impeachment) the centerpiece campaign issue for the 2018 midterm elections.
Yes, a majority in the House decides what is impeachable, but two-thirds of senators must then decide that the charges are legitimate, substantiated by the facts and also merit the only available sentence: Ejection from office. It’s basically impossible to do that on a party-line basis currently, considering that, even if Democrats won not just every competitive Senate race but every Republican-held seat up for election in November, they would get to 58 members — nine short of the number needed to convict and remove a sitting president.
And, for the Democrats to run for the purpose of impeaching Trump, as The New York Times reported last weekend, would rile up conservatives who have (to borrow President Donald Trump’s famous promise) gotten tired of all the winning. Warnings that a midterm Democratic victory will ensure impeachment “have become a surefire way for candidates to raise small contributions from grass-roots conservatives who are devoted to Mr. Trump, veteran Republican fund-raisers say,” Jonathan Martin reported. “But party strategists also believe that floating the possibility of impeachment can also act as a sort of scared-straight motivational tool for turnout.”
For the Democrats to run for the purpose of impeaching Trump would rile up conservatives who have (to borrow President Donald Trump’s famous promise) gotten tired of all the winning.
That’s undoubtedly why, for their part, Democratic leaders have studiously avoided the topic of impeachment: They presumably are aware that, while flirting with impeachment would thrill rank-and-file Democrats, it might also turn off swing voters more interested in hearing about health care and jobs. But they also seem aware that, because impeachment is a real potential outcome with Trump, they cannot be seen as actively pursuing it (liberal Democratic superdonor Tom Steyer, who has vowed to spend $30 million to make impeachment a campaign issue, aside) without making it intractably partisan before any substantive judicial case can be made for it.
To paraphrase Clemenceau, impeachment is too important to be left to the activists.
New York Democratic Rep. Jerry Nadler, the top Democrat on the House Judiciary Committee (and thus the likely point man in any impeachment) told Politico in December that it’s important to tread carefully on impeachment, as it does override the voters’ intent. “It may be necessary to do that — as long as you have persuaded a sufficient fraction of the president’s former supporters, the people who voted for him, that you have to, that it’s necessary.”
Properly handled (which is to say with a minimum of partisanship on the majority’s part) a fulsome investigative process can itself serve a purpose of public education.
Properly handled (which is to say with a minimum of partisanship on the majority’s part) a fulsome investigative process can itself serve a purpose of public education, laying bare the case — if there is one — that Trump has acted in a way that merits removal from office. And it could focus public attention on the issue in a way that the thrust and parry of day-to-day politics, not to mention the scandal miasma surrounding Trump, make hard to accomplish. But it has to be the sort of investigation that doesn’t just confirm the feelings of Resistance marchers, but convinces swing voters or Trump-skeptical Republicans.
Republicans, though, face their own risks in trying to push Democrats to call for impeachment. For one, a Democratic response could talk about the importance of letting the investigative process run its course while listing the burgeoning list of issues which require inquiry. That list, of course, is long: The extent to which the Trump campaign colluded with Russia in 2016; whether Trump is accepting unconstitutional payments (“emoluments,” in the constitutional parlance) from foreign and domestic sources; whether Trump obstructed justice by doing things like pressing his FBI director to go easy on a former aide and then firing said director in order to cook off the Russia investigation; the full extent of the conflicts of interest between Trump’s ongoing business interests and his presidential day job; and the pressing question of whether Trump is willing to abide by the rule of law, as most recently evidenced by his hysterical reaction to his lawyer’s office being raided by the FBI (it was, the president ludicrously claimed, an “attack on our country in a true sense”).
Republicans are not casting their lot with someone of unimpeachable character.
Some of that falls under the purview of Special Counsel Robert Mueller — unless the White House fires Deputy Attorney General Rod Rosenstein and convinces his replacement to fire Mueller or hamstring his investigation, a move which itself could well supercharge momentum toward impeachment — but much or all of it also requires the kind of congressional oversight that Republicans have been unwilling to administer to this president. A hypothetical Democratic candidate could simply vow to follow the facts where they will lead and plausibly ask why her Republican opponent is so anxious to pre-exonerate the president when there are so many smoldering scandals.
That, of course, highlights the second major risk that Republicans face in trying to politicize impeachment in favor of their party: They are not casting their lot with someone of unimpeachable character. It’s honestly inexplicable why so many Republican officials are willing to bet so much — their careers, their party, their country — on the proposition that Donald Trump, of all people, couldn’t possibly have done anything wrong.
It’s clear why Team Trump would want Republicans to explicitly run against impeaching him: As former George W. Bush speechwriter David Frum wrote in The Atlantic Tuesday: “By forcing Republicans to disavow impeachment now, Trump narrows the risks of defection later. …. It’s about press-ganging every last Republican, down to the most reluctant, aboard Trump’s voyage of the damned.” It’s just less clear why Republicans would automatically hop on that cruise ship.
Ultimately, the American electorate may be too polarized for impeachment to work, regardless of cooler heads prevailing in the Democratic or Republican establishments. This is why commentators are increasingly looking past impeachment and toward an indictment or other tactics for dealing with Trump’s unethical behavior. But we shouldn’t consign impeachment to being no more than a political campaign issue: Democrats and Republicans are best served by keeping justice and politics in balance while the investigative process has a chance to unfold.
Robert Schlesinger is a veteran Washington journalist and commentator. He is the author of “White House Ghosts: Presidents and Their Speechwriters.”