Impeachment of President Trump not mandatory
House Democrats are pushing ahead with a formal inquiry into impeaching President Trump, spurred on by reports that Trump tried to persuade the Ukrainian government to open an investigation of former vice president — and Democratic presidential candidate — Joe Biden and his son.
The announcement Tuesday seemed long overdue to many. When the Ukraine news broke a few days earlier, Rep. Alexandria Ocasio-Cortez, D-N.Y., tweeted that the “bigger national scandal” was no longer the president’s behavior but “the Democratic Party’s refusal to impeach him for it.”
But as alarming as the allegations are — that Trump tried to use U.S. military aid as a cudgel to get Ukraine to help him politically — impeachment is still not required. Even now, there remains a narrow space for a constitutionally conscientious legislator to refrain from impeaching Trump, and the House would not necessarily be failing to do its “constitutional duty” if it did not pass articles of impeachment.
The language of the Constitution is discretionary, not mandatory. The House “shall have the sole Power of Impeachment.” The language is framed this way for a reason: The House is empowered to impeach an officer of the government, including the president, if it discovers high crimes and misdemeanors, but it might choose to react differently. The point is not that the House should feel free to ignore abuses of office but simply that impeachment is not the only way to address them.
The House’s own guidebook on rules and precedents emphasizes that the impeachment power is designed to be a remedy for certain grave ills in the body politic. One important question, then, is whether the country suffers grave ills. If those are identified, that leaves the issue of whether impeachment is a useful remedy. The House might conclude that a president has committed impeachable offenses, but it may not believe that impeachment and removal are in the nation’s best interest.
Most obviously, it is not clear that Trump would be convicted in the Senate. Impeachment requires only a simple majority in the House, so the decision to impeach is a conversation the Democrats can have among themselves. Conviction on articles of impeachment and removal from office require the support of two-thirds of the Senate, which means persuading a significant number of Republicans. If removing the president from office is the best remedy to our current troubles, then the House might be obliged to press forward — if there is a realistic chance of conviction. But if Republican voters remain firmly in Trump’s corner and Republican senators remain unwilling to buck their constituents, then rushing ahead is counterproductive.
If the point of impeachment is removal, no shortcut avoids the necessity of chipping away at the president’s public and political support until the prospect of a Senate conviction is something more than a Hail Mary pass. The GOP reaction thus far suggests that the Ukraine episode might get traction in the Senate. So the House’s real constitutional duty is to try to widen that political opening. That means not only proceeding with the investigation in a way that might move public opinion and pressure Republican politicians, but also confining any eventual articles of impeachment to charges that stand a chance of winning conviction. .
If the ultimate goal is booting Trump from office, then next year’s election is another, and perhaps better, path. If the president poses an imminent threat to the country then waiting for the election cycle to play out would be reckless. If, however, the president’s apparent misconduct is in the past, containable or of lesser consequence, then exposing problems for voters to see and leaving the final judgment to the American people becomes a viable option.
Impeachment can serve other purposes, as some advocates for the process have argued. It can serve as a tool for shoring up, or changing, the accepted norms of political behavior. Impeachment can be a rebuke to the officeholder and a warning to his successors.
Part of the challenge is deciding what norms must be defended. Some might simply be abandoned, as Trump suggested when he declared that his frequent tweeting is “modern day presidential.” Some might bounce back on their own after Trump’s departure. Other norms might require more conscious effort to preserve, such as the expectation of investigatory independence in the Department of Justice or the acceptance of the legitimacy of an independent and critical press.
There is a persistent fear of the cost of doing nothing in the face of Trump’s conduct. If his presence in office creates intolerable dangers to the republic, then those costs are quite real. But if the concern is simply that a failure to impeach sets a bad precedent, then trying to muster a majority behind impeachment may not be necessary.
Leaders of both parties should learn some lessons from this presidency, no matter how it ends, and reexamine Congress’s capacity to do its job — and the extent to which we have been relying on the good character and judgment of individuals in the White House to keep the government on an even keel.
Speaker of the House Nancy Pelosi, D-Calif., addresses reporters Thursday at the Capitol in Washington. Two days before, Pelosi committed to launching a formal impeachment inquiry against President Trump.