Im­peach­ment of Pres­i­dent Trump not manda­tory

The Morning Call - - TOWN SQUARE - By Keith E. Whit­ting­ton Keith E. Whit­ting­ton is the Wil­liam Nel­son Cromwell pro­fes­sor of pol­i­tics at Prince­ton Univer­sity.

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.

J. SCOTT APPLEWHITE/AP

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.

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