I’ve been arguing as strongly as I can that the Democrats in the House should go all-out for impeachment, just as Trump is going all out to put himself above the law. Nancy Pelosi – whose opinion on this issue matters hugely more than mine – has been arguing the contrary.
I haven’t changed my mind, but I can see ways that she could be right.
But we should note that if she’s right — if her route is the best of the options – that would reflect badly on the nation, and even if her approach is the wisest it would likely entail serious costs.
Pelosi’s Political Calculation
Here’s how Karen Tumulty sums up Pelosi’s view of things in a column in the Washington Post:
“Pelosi knows that unless and until there is overwhelming, bipartisan support for such an effort, it will end with Trump’s acquittal in the Senate. And that would only help him win another four years in office. ‘He wants to be impeached so he can be exonerated by the Senate,’ she told top Democrats in a private meeting.”
A couple of notions in that passage — that Pelosi is said to “knows” — I believe to be untrue: 1) I seriously doubt that Trump wants to be impeached, and 2) more importantly, I don’t think that Trump’s being impeached would help him get reelected in 2020.
But I’m willing to stipulate here, for the sake of this discussion, that she’s right about impeachment now being a political liability for the Democrats for 2020.
Certainly, Pelosi’s political judgments are based on a lifetime of experience, and a lot of knowledgeable people have great respect for her wisdom about such things. So – even though I’ve characterized her and other Democratic leaders as having shown a “characteristic error” of fighting too little and too weakly as the Republican Party has been breaking bad over the past quarter century, with disastrous results for their party and the nation – I’ll assume that she’s right and I’m wrong.
I can see a couple of ways Pelosi could be right.
But first, it’s necessary to recognize that there is an important ambiguity about Pelosi’s position: Does she favor delaying impeachment or avoiding the impeachment route altogether? One finds evidence in both directions.
If it’s just delay that she favors, one way that she could be right was proposed to me by a reader who commented on my piece – “Does Trump’s Losing in Court Mean Trump’s Losing?” – on Daily Kos.
It was his view (and I’m putting his idea into my own words) that “the rule of law” is presently in such battered condition in America that impeachment – which is perhaps the most forceful of all applications of the rule of law – would be demanding too much of a fractured structure. Better, he suggested, for the Democrats to play out the legal process—getting powerful statements from judges (as has begun to happen) upholding the legitimacy of the congressional oversight role and rejecting almost scornfully the bogus legal arguments of the Trumpians seeking to protect the president (likely by running out the clock).
After a period of such court decisions, contempt citations, etc., the hope — according to that worthy commenter — is that the basic American value of “the rule of law” will have regained enough standing in the public mind that the movement into an impeachment process will enjoy greater respect and support from the American electorate.
So if Pelosi wants to string the pre-impeachment process along for any such reason, she might well be right.
But to that possible concession, I would want to add the caveat that the more time that passes – e.g. since the completion of the Mueller Report – the more difficult it will be to reach the public. So if the legal process moves along without being supplemented by the congressional investigative process also beginning to meaningfully flesh out the picture of Trump’s criminality and corruption, Trump’s position will be strengthened. So the greater the delay before the battle is fully waged, the more the constitutional order will be weakened.
Let it also be said that it’s a sad commentary on the state of the nation if she’s right that she could not now count on the main part of the American people to support impeachment now, given that Trump has so blatantly committed so many of what might reasonably be argued “high crimes and misdemeanors.” (For Trump is not only the most impeachable president in our history, but he’s pretty far toward being the most impeachable president one can imagine.)
If so many Americans don’t see that – despite so many of those offenses being committed right in front of everyone’s eyes – that it would be politically dangerous to do what James Madison clearly would have wanted the Congress to do, what the hell does that tell us about the current state of political consciousness among the American citizenry?! (Either an unforgiveable ignorance, or an unAmerican indifference to the preservation of our American system of government.)
But there’s good reason to believe that Pelosi want not just to delay impeachment, but to avoid it altogether, and to rely instead on the 2020 election to get rid of Trump.
And while I can imagine that she could be right about that as well (though I don’t believe she is), if we get to the 2020 election without the Democrats having done all they could to impeach this lawless President, that will do great damage to the nation.
She could be right if, for example, it were true that launching impeachment would give (or have a very high probability of giving) Trump four more years in the Presidency, with all the damage that would entail.
If we knew for a certainty that launching the impeachment process would get Trump re-elected, and that refraining from impeaching him would mean he’d be defeated in the 2020 election – or even if we had very strong reasons to suspect it – I too would advocate that the Democrats steer clear of impeachment.
But even if we were to act on that supposition about the 2020 election (a supposition which I have challenged repeatedly, because I think the impeachment process would magnify the American disgust with this atrocity of a President), we should acknowledge the seriousness of the injury the failure to impeach would do to the American constitutional order.
Presidential Crime and No Punishment
Just think what it would mean for a President to bring us to the point, described by House Judiciary Chair Jerry Nadler as “the time of testing whether we can keep a republic, or whether this republic is destined to change into a different, more tyrannical form of government, as other republics have over the centuries” – while those in a position to “protect and defend the Constitution” choose to stand by and let that President vie for another term in office.
Just think what it would mean to refrain from using the tools our framers put into the Constitution for just this kind of threat – a President whose ”actions are villainous to the Constitution of the United States” as Pelosi herself has said – and not use those tools.
The fact that the crimes Nixon kept hidden Trump has been committing right out in the open makes letting him get away with it makes a big difference.
That makes a big difference.
If the nation had never learned about the Watergate Break-in or about the other crimes that investigation brought to life, the nation would not have been damaged by its failure to impeach Richard Nixon.
But if someone tramples on the law and Constitution openly, as Trump does, and there is no impeachment, the whole nation witnesses the failure of the rule of law. The system shows itself to be weak. Everyone sees that the guardrails we thought we had are not to be taken as seriously as Americans had always thought. The idea that a strong man at the top might defeat the order our founders gave us takes root, and sets the stage for further deterioration—the “tyrannical” kind of power that Nadler has now warned us about.
What’s an Oath?
And among the casualties is the idea that the “oath of office” that our founders required every one to take, as a last step before being granted power in our constitutional system – the “protect and defend the Constitution of the United States” – means something.
That the founders put that oath into the Constitution tells us a lot. It tells us that they believed the constitutional order to be the foundation of our blessings, as it is the one thing they require office-holders to swear to protect. And it tells us that they wanted the granting of official power to be contingent on an absolute commitment to protect that order. Not if it protecting the Constitution is politically advantageous, or even if one thinks failing to protect it would in some particular instance be best for the nation. But regardless.
When the Constitution is being flagrantly attacked by a President, and the Congress does not act to do all it can to “protect and defend” the Constitution, that visible failure to fulfill the oath of office will be a public message that swearing the oath is not a serious undertaking. And that damages the American order still further.
So as the Democrats contemplate what they’re going to do about reining in this lawless President — knowing full well that impeachable offenses have been openly committed, yet also fearing that the public will not support strong action — I hope they will give due weight to the costs of a failure to impeach.
It’s not a matter of whether Trump will be removed by the Senate or not. The Democrats are responsible for what they do. And even if Pelosi is right, if the Democrats hold off from fulfilling their oath they will be saying to the nation, now and in the future, that law and Constitution do not rule, that oaths are not binding, and that – even with the nation struggling to steer clear of tyranny — these can be outweighed by political calculations.