A Duty to Impeach?

Does the House have an obligation to proceed with impeachment?

Last week I wrote about the empirical context of the impeachment process and the degree to which is it more about partisan calculation than it is about high minded assumptions about checks and balances. I also noted that it is fair to think about impeachment in the House as an outcome in and of itself rather than as only efficacious if the Senate votes to remove.

The more I think about the “i-word” the more I think that the House is going too have to impeach Trump. At a minimum, the Mueller Report (despite Trump’s protestations to the contrary) establishes obstruction of justice. See, for example, Quinta Jurecic’s piece at Lawfare: Obstruction of Justice in the Mueller Report: A Heat Map.

And, of course, far from the “complete exoneration” that Trump likes to talk about, the Mueller report expressly states on page 182 of volume II:

if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.


I think, too, the Report clearly lays out a role for Congress to pursue further investigations of the president (~160-180 in vol II). And footnote 1091 rather clearly provides for the possibility of impeachment.

As such, I think Matt Ford writing for the New Republic (The Democrats Are Overthinking Trump’s Impeachment. Naturally.) is correct (emphases mine):

Adam Schiff, the normally combative Democratic chairman of the House Intelligence Committee, argued recently that if Trump is acquitted by the Senate, he would take it as “an adjudication that this conduct is not an impeachable offense.” This argument wrongly conflates the House’s power to impeach with the Senate’s power to convict; an impeachable offense, to paraphrase Gerald Ford, is whatever the House decides it is. It is also short-sighted. If Trump would take his acquittal by the Senate as vindication of his behavior, what conclusion would he and future presidents draw from the House’s refusal to impeach him for it in the first place?

While Democrats have dwelled heavily on the drawbacks of impeachment, they’ve paid relatively little attention to the benefits of it. Trump is stonewalling their oversight efforts on virtually every front by arguing that the House lacks a “legitimate legislative purpose” for its inquiries. It’s hard to imagine a more legitimate or more legislative purpose for a subpoena than impeachment, and the courts would likely agree. Top Democrats are so obsessed with how Trump’s base would respond to impeachment that they neglect their own. The Democrats swept into power in last year’s midterms on a pledge to hold Trump to task. Will that energy hold if they keep telling liberal voters that accountability is just too hard?

Nothing could make Democrats look weaker than spending the next two years warning that Trump is an existential threat to American democracy, then telling voters that it’s not worth the trouble to impeach him. “I wish him and his family, his administration and staff would have an intervention for the good of the country,” Pelosi remarked on Thursday. The House of Representatives has the constitutional power to stage that intervention as well.

Indeed all around.

At this point, if Trump’s behavior is as bad as it seems, he needs to be impeached even if he will not be removed.

FILED UNDER: Donald Trump, Nancy Pelosi, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. michael reynolds says:

    Yep, beyond a certain point you just can’t factor politics into it but have to do the right thing. He must be impeached.

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  2. I’m working on my own post on this topic. Previously I have been a hard no on impeachment not because I do not believe it is warranted, but because of the fact that it’s obvious it will fail to result in the President’s removal. Additionally, as some analysts have noted, I suspect that Trump and his political advisers may believe that an impeachment that does not result in his removal will enure to his political benefit by energizing his political base just as the 2020 election cycle is set to begin.

    I’m still leaning in that direction, but the way things are moving regarding Trump’s stonewalling and other issues is giving me pause. Still, I’m inclined to say that it’s better to continue investigations at this point and let the American people decide what to do about this.

  3. @michael reynolds:

    On the one hand, I agree. On the other hand, there is the fact that impeachment is an inherently political act and you can’t take political considerations completely out of the equation.

  4. Warren Peese says:

    In addition to the six solid counts of obstruction, Trump violated FEC rules (a felony that put Michael Cohen in jail) when he paid hush money to a porn star. Pelosi should at least start an impeachment inquiry.
    If she’s worried about polls, let’s not forget that Democrats wrongly predicted that Hillary would win, so she might as well ignore the polls and do the right thing for a change.

  5. Paine says:

    As much as I’d like to see Trump impeached, my eyes are on 2020. I trust Pelosi to exercise her power in whatever manner she thinks maximizes our chances next year.

  6. michael reynolds says:

    @Doug Mataconis:
    It’s equally a political act whether they impeach or refuse to. They have a duty. She should carry out that duty. Now, does it have to be tomorrow? No. But I think it has to be before the election gets under way – before the Dems pick a candidate.

  7. @michael reynolds:

    The election effectively starts in February of next year with the Iowa Caucuses. I’m not sure the impeachment process could be completed before then, and I am unsure of the wisdom of going ahead with an impeachment whose outcome is foreordained is a wise move.

  8. charon says:

    @Doug Mataconis:

    Opening an impeachment inquiry is important to strengthen the case for enforcing subpoenas, so the stonewalling may be forcing this. An impeachment inquiry by the Judiciary Committee is the crossing of the Rubicon as however long it drags on, a vote on articles of impeachment would eventually follow.

  9. gVOR08 says:

    The House of Representatives has the constitutional power to stage that intervention as well.

    No. They do not. Anything short of removal from office will not even be a slap on the wrist. Trump will claim vindication, the base will agree, the base will be fired up, and everyone else will feel discouraged.

    It’s not a Manichaean choice between impeachment and nothing. Investigate. Indict his kids and minions. Put something in the news every day. Hell, refer him for indictment, then sue DOJ over their stupid rule.

    Everyone has a civic duty to vote. What’s voter participation, 40%? They cannot remove the prez w/out the senate. Anything short of removal is counterproductive. Can you have a duty, a moral obligation, to do a thing you cannot do? Are the Constitution Police coming after them if they don’t impeach?

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  10. Dave Schuler says:

    They do not have a legal responsibility to impeach. I believe they have a moral responsibility to impeach. They are doing the politically shrewd thing.

  11. Scott F. says:

    Put aside the compelling arguments about how House impeachment wouldn’t remove Trump from office before the 2020 election or how impeachment might or might not improve Trump’s chances to remain in office for a second term. Isn’t a strategy where the only objective is the removal of Trump short-sighted when it comes to the obligation/duty of the Democrats (and any independents who care about the further of our democracy)?

    I’ve read a great deal around these parts over the last few years that has made a very strong case that Trump has been the result of decades of Republican evolution (devolution). I’ve been convinced by these arguments that Trump isn’t the core problem, because nothing Trump has done would be possible without the Republican Party (the base, the activists, the elected officials) willingly and vociferously enabling it.

    Matt Ford alludes to what future presidents will take as precedent should the Democratic House not impeach Trump. What will the Republican Party do if Trump is removed, but all the malignancy in the party that made Trump possible remains?

    Impeaching Trump is putting a band-aid on a gaping wound. Instead, Trump should be investigated to the greatest extent possible and the Republicans should be forced to defend all his most egregious behaviors every time they step into public. Hang Trump around the neck of the GOP and try like hell to bring McConnell down with him. Only then will obligations be met.

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  12. Gustopher says:

    The bar for impeachment isn’t just that the President has committed crimes, but that he must be removed from office.

    I think the Mueller report lays out a great case for the President having committed crimes.

    I support impeaching Trump, but I would want impeachment proceeding to focus at least as much on why he must be removed from office — a broad attack on the notion of the Unitary Executive, the use of twitter to direct the DOJ to go after his enemies, the failure to respond to Russian interference in our elections, the declaration of a national emergency to build his unfounded wall, the declaration of a national emergency to sell weapons to the Saudis for the war in Yemen, kids in cages, kids dying at the border, attacks on the media as enemies of the people, and obstruction of all efforts at oversight…

    Any one of those, and it might not be necessary to remove him from office. Lots of presidents have committed impeachable offenses — Reagan, Clinton, Bush II, hell throw in Obama if you want — But only Trump (and arguably Bush II) have crossed the line where they must be removed from office.

    Use the spotlight of the impeachment inquiry to make that case.

    Ultimately, this is nominally a democracy, and if people are comfortable with a lawless Presidency that is only bounded by term limits and the need to get 1/3rd approval for any action… that’s what we deserve. But we should make the case against it.

    Also, the House should challenge the use of national emergency laws to sell weapons to Saudi Arabia and UEA for their war in Yemen. Just completely separate from impeachment, this should happen.

  13. Moosebreath says:

    @Scott F.:

    “Instead, Trump should be investigated to the greatest extent possible and the Republicans should be forced to defend all his most egregious behaviors every time they step into public.”

    This. Republicans in Congress have been doing everything possible to prevent Trump’s behaviors from coming to light, and are complicit by their support of him. Impeaching Trump lets them off easy.

  14. I have come to the point where removal is not the goal, because I think removal to be a near impossibility.

    The goal is to highlight the bad behavior of this president in the most public way possible. This will force his party to make its choices in the most public way possible. Then the voters will be as informed as possible going into 2020.

    At a minimum I have decided that his actions are sufficiently bad that to not impeach is to let him off the hook in a way that sets a bad precedent of historical proportions.

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  15. @charon:

    I am not saying that they should not investigate That is imperative. It’s only through investigation that the truth will become public. Whether that leads to impeachment or just becomes a further argument in favor of booting him from office.

  16. @Doug Mataconis: I think we have come to the point where it needs to be a formal impeachment inquiry, and not just a set of investigations.

    When I say I am to the point of thinking it is time to impeach, I am assuming that includes a formal impeachment inquiry and therefore the appropriate investigations and hearings before voting out articles of impeachment.

    I think, especially due to the WH’s recalcitrance, that the “i-word” needs to be in play.

  17. Scott F. says:

    @Steven L. Taylor:

    The goal is to highlight the bad behavior of this president in the most public way possible. This will force his party to make its choices in the most public way possible. Then the voters will be as informed as possible going into 2020.

    As I commented earlier, I wholeheartedly support your stated goal.

    Can you help me understand why impeachment would be better in furtherance of that goal than investigations? Especially, since investigations wouldn’t allow for any formal “rebuttal” from the GOP Senate? Could the House hold off on impeachment hearings and voting until late 2020, so the current Senate never gets a chance to vote to not convict?

  18. al Ameda says:

    It is interesting that Trump is daring House Democrats to do it (impeachment). I think House Democrats should open an impeachment inquiry based with the Mueller Report as a starting point, and the Report seems to be a very strong basis to support such an inquiry.

    Add the latest entirely predictable travesty – Trump and Pompeo ginning up a fake emergency (the Iranian threat) in order to by pass Congress and send $8 billion worth of arms and weaponry to the Saudis – and you have sufficient ambient noise that can easily fuel and sustain this inquiry.

    Will the Senate convict? I doubt it, and I really don’t care. Republicans have sold out completely because they’re running the table on their wish list; they’re not going to throw Trump under the bus as long as McConnell and Trump are getting their way.

    Even so, I see no downside to this. Trump’s base is already convinced that the Mueller inquiry was a hoax and an attempted coup. Add to this the fact that Barr and Trump are now attempting to mete out retribution by trying to show that the intelligence community was corrupted from the beginning.

    As I see it, with economy doing well, the best hope Democrats have of winning in 2020 is that their base is energized to turn out, and that perhaps Trump has worn people out with his antics and toxic personality. Will the same people who thought that Hillary was running a child sex slave operation out of DC area pizzeria see the next Democratic president as illegitimate? Roger that.

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  19. @Scott F.:

    Can you help me understand why impeachment would be better in furtherance of that goal than investigations?

    Because there is a substantially different level of public engagement over an impeachment inquiry than is the case of a set of investigations.

    An impeachment inquiry will also make it harder for people like McGahn and Mueller to avoid public testimony.

    Starting a formal impeachment process is turning the investigation dial to “11.”

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  20. Gustopher says:

    @Steven L. Taylor: I agree completely, and would add one more thing: an impeachment inquiry does not have to result in an impeachment. The outcome could be “we believe that there is significant evidence that the President committed the following crimes, but we do not believe that it is in the interests of the country to remove him from office.”

    I would disagree with that conclusion, but it wouldn’t give the Senate an opportunity to run a trial and acquit, or for the President to claim that as an exoneration.

  21. charon says:

    @Gustopher:

    My point is that a formal impeachment inquiry will (I predict) lead to abundant solid evidence of impeachable offenses. Once that happens, not voting out articles of impeachment will (IMO) be politically untenable.

    If the Senate chooses to acquit that would amount to jury nullification. If the GOP wants to march into the 2020 elections under the jury nullification banner, go for it.

  22. Lounsbury says:

    @Doug Mataconis: Yes is it not like a prosecutor not bringing a case if there is not a reasonable shot at conviction, as non-conviction undermines? Never bring something to trial when you likely or certainly will lose.

    The moral posturing is all quite empty if there is acquittal. Stupid politics, stupid positioning.

    @charon:
    This is pure bollocks and wishful thinking.

  23. Stormy Dragon says:

    @Doug Mataconis:

    When the Nixon Impeachment Hearings first convened, 65% of the public was opposed to impeachment.

    If you wait until impeachment is popular, it will never happen, because the impeachment process is what makes it popular.

  24. Gustopher says:

    @charon: There would be incredible pressure for the Democrats to do something, but censure can be that something if the Democrats cannot make the case that the crimes merit removal from office.

    Impeachment hearings give them a spotlight. There’s plenty of evidence of guilt, at least for obstruction. I think that once the crimes of the Trump administration and Donald Trump in particular get the spotlight, the majority of people will support removing the President, and the Republican wall of support will crumble. Support for impeaching Nixon didn’t arrive until during the hearings, and I think history would repeat itself.

    But, I might be wrong. I would be sad to be wrong, but censure can be the escape valve from the process. “Guilty, but we don’t want to put the country through an impeachment trial.”

  25. @Gustopher: I am of the position that the only real censure is impeachment.

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  26. Warren Peese says:

    Just like when Cocaine Mitch forced a vote on Ms. Ocasio-Cortez’s Green New Deal, thus putting every Senator’s vote to the test, the Democrats in the House should do the same with impeachment, putting every single member of Congress on record as to how they would decide on a president who provably obstructed justice and paid hush money to a porn star.
    The choice is whether Pelosi should strap on or lay down. I think it would be a mistake if she laid down.

  27. Gustopher says:

    @Steven L. Taylor: That is my instinct as well, but if the impeachment inquiry is not moving public opinion, and the Democrats are worried about a situation where Trump claims to be exonerated, and fear that being an electoral disaster… censure is a way to weasel out.

    I’m just saying that the impeachment inquiry is not a one way door that leads to impeachment, even if the politics of impeachment are terrible at the end of the inquiry.

  28. @Lounsbury:

    is it not like a prosecutor not bringing a case if there is not a reasonable shot at conviction, as non-conviction undermines? Never bring something to trial when you likely or certainly will lose.

    In fact, prosecutors have an ethical duty to refrain from bringing charges that they do not have a good faith belief they can prove at trial beyond a reasonable doubt. That doesn’t mean that they’ve acted unethically every time a Defendant is acquitted, but it is saying that the standard for bringing charges in criminal courts is higher than most people generally understand. That’s one of the reasons that the D.A. in the Duke Lacrosse case got into trouble with the N.C. State Bar.

    The same standard doesn’t really apply in an impeachment case but there are political considerations that come into play and if the House brings impeachment charges it knows will not result in removal by the Senate there could be a political price to pay. As the saying goes, if you go after the king you best not miss.

  29. @Stormy Dragon:

    Again, I am not saying there should not be investigations and public hearings. Right now, there are three or four committees working on investigations of various kinds and at some point, it may make sense to consolidate all of that in the form of impeachment hearings in the Judiciary Committee.

  30. SC_Birdflyte says:

    Whether or not Trump gets the reward he deserves (impeachment and conviction), one outcome I would like to see is a law passed stating that a President may be indicted (but not tried) while he is in office. In addition, in such cases, the statute of limitations should be suspended until he leaves office, when the clock resumes ticking.