Impeachment in theory and practice

Andrew Sullivan reviews Cass Sunstein’s Impeachment: A Citizen’s Guide, along with a related collection of essays.

Sullivan makes the banal but all-the-more important to emphasize now that we’re living in Trumplandia observation that no protections offered by any legal document or system are of much use against the degradations of a decadent political culture:

No, Trump is not about to initiate a coup, or suspend elections or become a dictator. The more likely model for American authoritarianism is that of Recep Tayyip Erdogan in Turkey or the Fidesz party in Hungary. The dismemberment of a public discourse centered on objective truth is a key first step, fomented by unceasing dissemination of outright lies from the very top, metabolized by tribal social media, ever more extreme talk radio and what is essentially a state propaganda channel, Fox News. The neutering of the courts is the second step — and Trump is well on his way to (constitutionally) establishing a federal judiciary whose most important feature will be reliable assent to executive power. Congress itself has far less approval than Trump; its inability to do anything but further bankrupt the country, enrich the oligarchy and sabotage many Americans’ health care leaves an aching void filled by … a president who repeatedly insists that “I am the only one who matters.”

I don’t think Trump has a conscious intent to vandalize liberal democracy — he doesn’t even understand what it is. Rather, his twisted, compulsive insecurity requires him to use his office to attack, delegitimize and weaken every democratic institution that may occasionally operate outside his own delusional narcissism. He cannot help this. His tweets are a function of spasms, not plots. But the wreckage after only one year is extraordinary. The F.B.I. is now widely discredited; the C.I.A. is held in contempt; judges, according to the president, are driven by prejudice and partisanship (when they disagree with him); the media produce fake news; Congress is useless (including both Republicans and Democrats); alliances are essentially rip-offs; the State Department — along with the whole idea of a neutral Civil Service — is unnecessary. And the possibility of reasoned deliberation at the heart of democratic life has been obliterated by the white-hot racial and cultural hatreds that Trump was able to exploit to get elected and that he constantly fuels.

The Democrats find themselves in opposition a little like Marco Rubio in the primaries. Take the high road and you are irrelevant; take the low road and you cannot compete with the biggest bully and liar on the block. The result is that an unimpeachable president is slowly constructing the kind of authoritarian state that America was actually founded to overthrow.

There is nothing in the Constitution’s formal operation that can prevent this. Impeachment certainly cannot. As long as one major political party endorses it, and a solid plurality of Americans support such an authoritarian slide, it is unstoppable. The founders knew that without a virtuous citizenry, the Constitution was a mere piece of paper and, in Madison’s words, “no theoretical checks — no form of government can render us secure.” Franklin was blunter in forecasting the moment we are now in: He believed that the American experiment in self-government “can only end in despotism, as other forms have done before it, when the people become so corrupted as to need despotic government, being incapable of any other.” You can impeach a president, but you can’t, alas, impeach the people. They voted for the kind of monarchy the American republic was designed, above all else, to resist; and they have gotten one.

According to Sullivan, Sunstein’s book provides an analysis of what count as legitimate bases for impeachment.  In the context of the Trump maladministration, these potentially include (among other things):

[D]irecting the Justice Department to prosecute someone for political reasons; pledging in advance to pardon anyone in law enforcement who commits a crime; using the F.B.I. or C.I.A. to get evidence of criminality against a political opponent; egregiously defaulting on his core presidential responsibilities; secretly bribing others in a direct quid pro quo or similarly receiving bribes; and secretly cooperating with a foreign power to promulgate false information against a political opponent. Sunstein thinks each of these is an impeachable offense — as they almost certainly are.

Again, I haven’t read the book, but I doubt the practical value of any attempt to determine what “high crimes and misdemeanors” was originally meant to signify, since, on the basis of existing Supreme Court precedent, that phrase means whatever Congress decides it should mean.  The leading case on that issue is Nixon v. United States, with the Nixon in question being Walter, a federal judge who was impeached and convicted for accepting a bribe and lying about it to a grand jury.  Nixon’s claim was that he had a constitutional right to a “trial” by the full Senate, rather than having the chamber’s initial review of the evidence delegated to a special committee, per the relevant Senate rule.  The majority of the Court’s justices not only rejected this view: they took the position that any controversy about the legalities of an impeachment proceeding was what’s known in constitutional legalese as a “political question” — meaning that courts don’t have the constitutional jurisdiction to make any substantive judgment in the matter.

Of course its own precedent isn’t binding on the SCOTUS, but again as a practical matter it’s hard to imagine even the Roberts court deciding that Congress doesn’t get to decide for itself what ought to constitute sufficient grounds for impeachment and removal.  And that’s as it ought to be: the failure of our legal system to provide any kind of formal no-confidence mechanism for removing a completely dysfunctional president is a major flaw.  (Impeachment and the 25th amendment are clumsy substitutes for a more straightforward approach).

This is all irrelevant to Trump, since there is zero possibility that he will be removed — he may be impeached after November, but he certainly won’t be convicted — and in any case the material grounds for removing him probably include good old fashioned high crimes in the narrowest sense.

But looking forward, it would be nice to have a system where the chief executive could be removed under extreme circumstances other than those featuring provable serious criminality or evident insanity (or, as in our own interesting times, both).