Impeachment and the Distinction between Law and Politics

San Francisco / December 19, 2019
 
Liberal writer Nathan Robinson complains he's happy that Donald Trump was impeached, but unsatisfied because he won't be removed (link). President Trump has committed a long list of actual crimes, and the Democrats are pursuing impeachment for one of his least consequential acts. Also, Republicans in the Senate made clear they wil acquit Trump. The whole process feels like an anti-climax.
 
This is the wrong way to think about impeachment. The key is to remember the testimony of the law professors before the House Judiciary Committee on December 4. The goal of that hearing was clarify whether as a matter of law Trump's alleged conduct qualified as an impeachable offense. All four witnesses said yes -- Trump's alleged conduct crossed a line and constituted an impeachable offense. The three Democrats' witnesses -- Noah Feldman, Pam Karlan, and Michael Gerhardt -- said the alleged conduct crossed a line. And the Republicans' witness, Jonathan Turley, agreed that the alleged conduct crossed a line. During Turley's opening remarks, he said “The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense” (link).
 
The impeachment process is about upholding the rule of law. On a wide range of issues, the Trump Administration has repeatedly eroded the norms and practices that constitute the rule of law in the United States. The Democrats want to signal that the rule of law is important and Trump is eroding our norms.
 
Also, Nancy Pelosi is threatening not to send the articles of impeachment to the Senate. She points out that Mitch McConnell will not allow the Senate to conduct a meaningful trial. Technically, Pelosi has the authority not to send the articles to Senate. By doing so, she raises an interesting legal question -- if the House does not send the articles to the Senate, has the President been impeached? In my view, there's no straightforward precedent on this question. It depends on how you want to parse old English traditions.
 
From a practical perspective, the House has voted on the articles of impeachment. It looks awkward if Republicans in the Senate cannot respond to the House's statement.