Impeachment was designed to protect the US from presidents like Trump. What went wrong?

U.S. President Donald Trump speaks at a campaign rally for Senator Luther Strange in Huntsville, Alabama, U.S. September 22, 2017.
U.S. President Donald Trump speaks at a campaign rally for Senator Luther Strange in Huntsville, Alabama, U.S. September 22, 2017.
Image: ReutersAaron P. Bernstein
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Can Donald Trump be impeached?

Cass Sunstein’s new book Impeachment: A Citizen’s Guide carefully avoids addressing that question directly: Trump’s name is not mentioned in the text. But despite the effort to avoid current political controversies, the question of whether Trump can, or will, or should be impeached will be on the mind of every reader who picks up the book.

Sunstein, a renowned legal scholar and former administrator of the White House Office of Information and Regulatory Affairs under the Obama administration, is out to correct our misconceptions about impeachment. Impeachment, Sunstein maintains, is not a minor Constitutional curiosity, but an essential part of the democratic process. America’s founding fathers debated impeachment vigorously, seeing it as a central bulwark against monarchy and tyranny. The founders wanted a strong, active executive branch, but they feared that the president could become corrupt and trample on individual rights. So they devised a range of checks on executive power, including impeachment. Thus, Sunstein told me by email, “We the People have a way to protect ourselves.”

But while Sunstein is optimistic about the power that impeachment gives to the people, the evidence from his book is more mixed. Impeachment may have originally had lofty ideological goals, but in practice, it is mired in partisan calculation and prejudice.

The Constitution says that an impeachment vote is taken in the House, and that a two-thirds vote in the Senate is required to ratify impeachment and remove the president from office. The founders wanted to make sure that the Congress could not simply remove presidents who are merely disliked by their fellow politicians, so the Constitution specifies that presidents and other officials like federal judges can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” But it doesn’t specify further what those crimes and misdemeanors are.

Sunstein’s book explains that the founding fathers saw “high crimes and misdemeanors” as a shorthand for abuse of power, not an exclusively legal matter. A president could, for example, get a ticket for jaywalking, or violate the law by failing to pay taxes. Those would not be impeachable offenses, in Sunstein’s view, because they don’t involve abuse of the powers of the president’s office.

On the other hand, some lawful actions of the president can be impeachable. “If the president goes on vacation in Paris for six months,” Sunstein explains, “he’s impeachable, even though vacationing in Paris isn’t a crime. If the president invades civil rights and civil liberties in an egregious way, he’s impeachable, even if he hasn’t violated the criminal law. If he announces that he will pardon police officers who have killed African-Americans, because black lives don’t matter, he has committed an impeachable offense, whether or not he has committed a crime.”

So where does that leave us with Trump? Sunstein refuses to speculate on possible impeachment charges against Trump, even when I pressed him over email. But we can draw some deductions from his book.

If Trump colluded with foreign powers to influence an American election, that is unquestionably the kind of betrayal of the presidency that the founding fathers were thinking about when they created the process of impeachment. Trump’s refusal to divest from his business dealings arguably violates Constitutional bans on federal officials accepting money from foreign governments. There’s a debate about whether this provision applies to the president, but Sunstein, after looking at the founders’ debates, believes it does. And Trump’s decision to pardon Joe Arpaio, a political ally and former sheriff of Maricopa County, Arizona, is arguably an abuse of the pardon power—exactly the sort of action that impeachment was supposed to curb.

All of these would certainly be stronger grounds for impeachment than the articles passed by the House against former presidents Bill Clinton, impeached for perjury and obstruction of justice tied to an investigation into his relationship with Monica Lewinsky, and Andrew Johnson, impeached for removing his own Secretary of War after Congress passed a (probably unconstitutional) law forbidding him from doing so. That’s not saying much, though, since Sunstein—and other legal scholars—believe that the Clinton and Johnson impeachments were poorly handled and extremely partisan.

And that’s the crux of the problem: The nation’s founders did not anticipate the growth of powerful political parties, and so could not have known how central a role partisanship would play in any impeachment process. “If the House dislikes the president on political grounds, or is of a different party, it might resort to impeachment when it shouldn’t. And if the House likes the president on political grounds, or is of the same party, it might not resort to impeachment when it should,” Sunstein says.

Marquette University political scientist Julia Azari goes even farther. The Clinton and Johnson impeachments have ” generally been regarded as a partisan joke,” she says. She added that even Richard Nixon’s impeachment process was strongly influenced by partisanship, with Democrats much more willing to vote for impeachment than Republicans. “There’s just very little evidence that processes to check the president can transcend partisan politics,” she writes. The standards for an impeachable offense are vague enough that reasonable people can disagree on any one instance. And when there’s so much room for interpretation, politics and partisanship are very likely to shape public opinion and Congressional votes.

For Sunstein, impeachment is important because it embodies faith in the American people, and the founders’ determined resistance to tyranny and corruption. “The book is a love letter to the United States of America,” Sunstein says, “and it is secretly about American exceptionalism, which was born, roughly, between 1750 and 1789.” He repeatedly Ben Franklin’s comment that the Constitution provided for ” a Republic, if you can keep it.”

In theory, impeachment gives the people the power to restrain a reckless, tyrannical, or corrupt executive. The problem is that in practice, the executive has great powers to, say, intern ethnic groups during war for no good reason, or to manipulate intelligence to justify an invasion of a foreign country. As long as the president has enough supporters in Congress, little is done to prevent such excesses.

Certainly, it is hard at the moment to imagine the Republican Congress impeaching Trump, no matter what he does, up to and including revelations about collusion with Russia. The founders’ faith in the American people is inspiring. But Trump’s rise casts a harsh light on the weaknesses of the republic that the founders gave us. Checks and balances weren’t created with partisan politics in mind. As a result, impeachment is unlikely to restrain corruption or abuse of power in the age of Trump.