Demo­cratic lead­er­ship can’t find its back­bone

Baltimore Sun Sunday - - COMMENTARY - By Jonah Gold­berg

“Do you think this is im­peach­able?” Chuck Todd, host of “Meet the Press,” asked Rep. Jer­rold Nadler about the find­ings in the re­port by spe­cial coun­sel Robert Mueller.

The con­gress­man from New York took a dra­matic pause be­fore re­ply­ing, “Yeah, I do. I do think this, if proven, if proven ... some of this would be im­peach­able, yes. Ob­struc­tion of jus­tice, if proven, would be im­peach­able.”

Within NBC’s stu­dio and out­side it, this was greeted as news. Maybe in one sense, it was. Mr. Nadler chairs the House Ju­di­ciary Com­mit­tee, where im­peach­ment pro­ceed­ings orig­i­nate. Like the Demo­cratic lead­er­ship gen­er­ally, he has been very cir­cum­spect on the is­sue. House Speaker Nancy Pelosi re­mains re­luc­tant to com­mit to im­peach­ment. Mr. Nadler, how­ever, nudged the Demo­cratic po­si­tion to­ward im­peach­ment, slightly.

But in an­other sense this was just an­other no-duh mo­ment. Of course, ob­struc­tion of jus­tice — if proved — is im­peach­able. Not even Rudy Gi­u­liani would dis­pute that.

Ob­struc­tion of jus­tice was at the heart of the im­peach­ment case that caused Pres­i­dent Nixon to re­sign. It was one of the two charges against Pres­i­dent Clin­ton in his im­peach­ment (the other was per­jury).

But here’s the thing: Even if it’s not proved, ob­struc­tion of jus­tice is im­peach­able. What I mean is: If a ma­jor­ity of House mem­bers think the pres­i­dent ob­structed jus­tice, they can vote to im­peach him, even if the charge would never fly in a court of law. In fact, the House can im­peach the pres­i­dent for lit­er­ally any rea­son it wants, in­clud­ing non­crim­i­nal be­hav­ior. That’s be­cause Congress isn’t a ju­di­cial body, and im­peach­ment isn’t a crim­i­nal pro­ceed­ing but a po­lit­i­cal one — and, save for the trial in the Se­nate, there’s no ap­peal.

The frus­trat­ing thing about im­peach­ment de­bates — un­der every pres­i­dent, not just Mr. Trump — is how lawyers are granted al­most priestly author­ity over the sub­ject, in part to save politi­cians from mak­ing tough calls. That is not what the founders in­tended. In Fed­er­al­ist No. 65, Alexan­der Hamil­ton (the dude from the mu­si­cal) ex­plained that im­peach­able of­fenses “are of a na­ture which may with pe­cu­liar pro­pri­ety be de­nom­i­nated PO­LIT­I­CAL” (the all-caps are Hamil­ton’s). They “pro­ceed from the misconduct of pub­lic men, or, in other words, from the abuse or vi­o­la­tion of some pub­lic trust” that does in­jury “im­me­di­ately to the so­ci­ety it­self.”

Among the 11 ar­ti­cles of im­peach­ment against An­drew John­son, Ar­ti­cle 10 re­mains my fa­vorite. It charged the pres­i­dent with at­tempt­ing “to bring into dis­grace, ridicule, ha­tred, con­tempt and re­proach, the Congress of the United States ... to im­pair and de­stroy the re­gard and re­spect of all the good peo­ple of the United States for the Congress and the leg­isla­tive power thereof ...”

That’s great stuff.

Be­cause im­peach­ment is a po­lit­i­cal process, the key con­sid­er­a­tion isn’t what crim­i­nal law says, but what the Amer­i­can peo­ple say. Yet they too have ab­di­cated their re­spon­si­bil­i­ties to call out lead­ers who have vi­o­lated the Con­sti­tu­tion or sim­ply the pub­lic trust. When Pres­i­dent Ge­orge W. Bush signed the Bi­par­ti­san Campaign Re­form Act of 2002 (also known as the McCain-Fein­gold Act, re­strict­ing cer­tain spend­ing on po­lit­i­cal cam­paigns), Mr. Bush said the law pre­sented “se­ri­ous con­sti­tu­tional con­cerns.” He signed it any­way, say­ing he’d leave it for the courts to deal with them. Mr. Bush was right about his con­cerns, as the court ruled in Cit­i­zens United v. Fed­eral Elec­tion Com­mis­sion.

The pres­i­dent takes an oath to up­hold the Con­sti­tu­tion. In Mr. Bush’s own words, he vi­o­lated the spirit of that oath. Congress, of course, wouldn’t im­peach a pres­i­dent for sign­ing a law it passed. But I wish I lived in a coun­try where vot­ers saw that as an im­peach­able act.

Worse, Amer­i­cans now seem to be­lieve pres­i­dents from their “side” can take what­ever steps the Supreme Court will let them get away with. Pres­i­dent Barack Obama uni­lat­er­ally over­hauled U.S. im­mi­gra­tion pol­icy, though he had re­peat­edly said he didn’t have the author­ity to do it. Repub­li­cans were out­raged at this abuse of ex­ec­u­tive power — and they shouldn’t have been alone. But they were, so now they’re not in­clined to share Democrats’ out­rage over Mr. Trump’s ex­cesses.

Congress has im­po­tently out­sourced its own judg­ment to lawyers, courts, ex­ec­u­tive branch bu­reau­crats and, most im­por­tantly, to a pub­lic ca­pa­ble only of par­ti­san out­rage. So now con­gres­sional Democrats wrestling with whether to im­peach Mr. Trump are pre­tend­ing they need some le­gal smok­ing gun. It’s all a ca­nard. All they need are votes — first in the House, then in the Se­nate — and the sup­port of Amer­i­cans around the coun­try. They might have enough of the former but prob­a­bly not of the lat­ter.

Jonah Gold­berg is a fel­low at the Amer­i­can En­ter­prise In­sti­tute and a se­nior ed­i­tor of Na­tional Re­view. His lat­est book is “The Sui­cide of the West.” Email: gold­bergcol­[email protected]; Twit­ter: @Jon­ahNRO.

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