Since impeachment talk is in the air this week, I’ll state for the record that I don’t think we are anywhere near the point where it would make sense. But I don’t think it’s crazy to think about under what conditions impeachment ought to be pursued. (I didn’t think it was crazy when Andy McCarthy wrote about it during the Obama presidency, either.) It’s especially important to think about the Constitution’s checks on executive power in our long era of presidential aggrandizement.
My first thought on this is a tentative one: My memory of the last impeachment debate, over Bill Clinton, is that there was no consensus on what constitutes a “high crime and misdemeanor” that justifies the removal of a president. It may be that the meaning of the phrase is something that just has to “be liquidated and ascertained by a series of particular discussions and adjudications,” and that the key question is what a majority of the House and a two-thirds majority of the Senate believe is tolerable in a president. Surely the key protection against a frivolous use of the impeachment power is not the phrase “high crimes and misdemeanors” but rather that procedural bar to its effective use.
My second thought, more firmly held, is that some of the worries Keith Whittington expresses about impeachment in this Lawfare post are exaggerated.
An impeachment without a removal is itself damaging. Congress would be tied up for an extended period of time in the impeachment proceedings. If the president escapes conviction, he would nonetheless be rendered an ineffective lame duck. His domestic agenda would undoubtedly ground to a halt, and his standing in the arena of foreign affairs would be significantly diminished. The political recriminations from pursuing impeachment charges when a conviction could not be obtained would be severe.
Republicans pursued impeachment charges against President Clinton and failed to convince enough senators to remove him from office. Was Clinton really so crippled in 1999 and 2000? He signed some important legislation, such as a financial-deregulation bill and a religious-liberty law. If the Lewinsky scandal had never happened, perhaps he would have achieved more: a deal on Social Security, perhaps. But that was killed by the controversy itself, which both made Clinton dependent on the support of the left wing of his party and made Republicans more averse to big deals with him. There wasn’t going to be any such deal after January 1998, when the story broke; the possibility was long dead by that fall, when the House took up articles of impeachment. Clinton wasn’t especially diminished in foreign policy, either. The NATO bombing campaign in Kosovo started after the Senate vote on his removal, and as far as I know there was nothing more he wanted to do that his scandal-diminished political standing kept him from doing. And the recriminations over an impeachment that failed to result in acquittal did not, in fact, dominate the 2000 election.
Were 1999 and 2000 terrible years in American history? I don’t think that’s how most Americans remember them. Impeachment isn’t something for Congress to take lightly. Again, I’m not arguing for impeaching President Trump. I’m arguing against underestimating our country’s resilience.