Playing politics with impeachment

The story sounds familiar: the party in control of the House of Representatives wants to impeach a political opponent on grounds not specified in the Constitution. In the current case, the Republican speaker of the House is seeking to impeach Democratic Homeland Security Secretary Alejandro Mayorkas on the ground that he is “derelict” in his duties. When the Democrats controlled the House, they initially impeached President Trump on the equally vague and unconstitutional grounds that he had “abused his power.”

When the Democrats went after Trump, Republicans insisted that the only permissible grounds were “treason, bribery or other high crimes and misdemeanors,” as specified in the Constitution. Now that the shoe is on the other foot, many of these same Republicans are claiming that “dereliction” of duty is enough.

So too with Democrats who insisted that “abuse” was sufficient to impeach Trump, but now they are saying that for Mayorkas, the Constitution requires high crimes and misdemeanors, not mere dereliction.

These inconsistencies are apparent for all to see, but apparently irrelevant to partisan hypocrites who don’t care. They interpret the Constitution one way for their enemies and another way for their friends. Rights for me but not for thee!

Alexander Hamilton warned, in The Federalist Papers, that the “greatest danger” of impeachment is that it will be used politically and will turn on the number of votes each party could secure: “that the decision will be regulated more by the comparative strength of parties, than by the real demonstration of innocence or guilt.”

For the first 200 years of our nation’s existence, this was merely an abstract threat. But since the ill-advised impeachment of President Bill Clinton, Hamilton’s nightmare has become a reality. Clinton was impeached for personal acts that fell far short of the constitutional criteria.

Democratic supporters of Clinton, including me, insisted that the constitutional criteria had not been met and that Clinton’s impeachment was a mere assertion of political power rather than a principal application of the Constitution. Republicans responded that Clinton had disgraced the presidency by his private conduct, and that this was enough to impeach. Ultimately Clinton was acquitted by the Senate.

Then the Democrats tried to get even by twice impeaching Trump for conduct that did not meet the constitutional criteria. I argued against Trump’s removal at the first Senate trial. Trump was twice acquitted by the Senate.

At the time of Trump’s impeachment, I predicted that when the Republicans took control of the House of Representatives, they would play tit for tat. That prediction has, unfortunately, come true. Immediately upon the election of Joe Biden, some Republicans called for his impeachment. That failed to generate widespread support among the Republican base.

Now they are aiming at the secretary of Homeland Security, who was appointed by Biden. The Republicans who support his impeachment know full well that they cannot succeed in removing him by a two-thirds Senate vote. But they still want to impeach him, in order to highlight the alleged failures of this administration in controlling the southern border. They may have enough Republican votes to achieve this unconstitutional political goal, despite the fact that some Republican moderates seem unwilling to go along with this charade.

This is what it has come to. Both parties are willing to weaponize the constitutional criteria for impeachment in order to achieve political benefits. The leaders and many members of both parties seem willing to apply the Constitution in a partisan manner — exactly the opposite of what was intended by the Framers. Winning is their only goal, and to achieve that partisan end, all unconstitutional means are acceptable, as long as they have the votes.

This dual distortion of the Constitution endangers all Americans by substituting the role of power for the rule of law. Decent politicians on both sides should refuse to play this unconstitutional game of tit for tat and should demand compliance with the text of the Constitution. But don’t count on decency from most politicians.

There are too few profiles in courage or consistency among today’s Republican House members. We can only hope there are enough of them to prevent the impeachment of Mayorkas on unconstitutional grounds. There were not enough to prevent the unconstitutional impeachments of Clinton and Trump. Things may have changed since then, but not for the better.