Is Presidential Impeachment Constitutional Dead Letter?
(At least the removal part)
On Thursday, Susan Hennessy tweeted the following about the (then-pending) vote on witnesses in the Senate, which inspired the following response from me:
I have been thinking about this notion during the entire process and I am essentially convinced that impeachment leading to removal, as it pertains to presidents (as opposed to judges), is essentially dead letter. James Joyner’s post, We Don’t Need Witnesses, also fits into this discussion (as I will touch on below).
The argument is straightforward: the role that political parties play in our system means that the incentives for members of the president’s party to vote to remove are almost zero. All the structural conditions promote sticking with the party: re-nomination, re-election, and status and influence within the party (to include fundraising and legislative influence). Even if one is leaving office and wishes to stay connected to one’s group, especially for employment (and even socially), the incentives to defect are low.
And it isn’t that the contemporary Republican Party broke the impeachment process. Rather, the advent of political parties two centuries ago started the demise of the process and whatever life it may have had has been squelched by polarization and the structure of modern mass media.
To James’s point in the post I noted above: the vote about removal has been a foregone conclusion from the beginning, so it makes sense (from an incentive structure POV) that GOP members would vote against witnesses. I understand, and indeed have substantial sympathy, for the normative position that witnesses should have been called, but from a dispassionate point of view, it makes sense that the vote went as it did.
Fundamentally, this is a feature of representative democracy: members of the Senate want to please their constituents (first in the primary, and then in the general election) so that they can keep their seats. And, so, one can be angry (or happy) with the given action of the given Senator–the bottom line is that the blame for the vote in the Senate is housed with the voters (and the ways in which our constitutional order empowers certain voters).
Forget the romance of civic virtue or the notion that Senators should put country over party. The bottom line is that David Mayhew was correct back the mid-1970s when he argued that members of congress are single-minded seekers of reelection. * I would add to that that they are self-interested in general and also, like all human beings, heavily influenced by their peer group and prone to rationalizing their positions.
Remember: for all who are deeply convinced that Trump deserved to be removed, there are a lot of people out there sincerely convinced of the opposite. Only a large plurality (48.3% when I write this) of Americans want Trump removed. Not only is that not enough support to create electoral pressure on the Senate, that plurality is not evenly distributed across the various states. Throw in the importance of primaries as a major step in re-election and the unrepresentative nature of the Senate to begin with, and the incentives to vote to remove are obviously low. Add in the super-majority threshold for removal and the hopelessness of any president ever being removed should be clear.
By the way: even if the Senate was a far more representative body, public support is such that even a more representative Senate would have been unlikely to muster a super-majority for removal.
So, rather than current events, to Hennessy’s lament, being some new threat to the impeachment process as a check on executive excess, I think this is just an illustration of how toothless a mechanism it has always been.
And, really, if we can divorce ourselves from the passions of the moment, we should note that the historical record demonstrates the difficulty of removal (granted, N=3, so it is hard to talk about solid trends). Toss in the short-circuited-by-resignation Nixon process and N goes to 4.
Nixon provides an interesting thought experiment, as I am of the mind that in the contemporary setting of modern media and polarization that Nixon would have survived Watergate and would not have resigned.
Keep in mind: impeachment and removal as conceived of by the Framers would have been done is radically different media and political environment. There would not have been instant analysis of every action and the arguments would have been made in very, very different conditions. They would have operated in an almost private fashion compared to now. (And none of that even takes into account the role parties now play).
Ultimately, it is difficult to see a scenario wherein the legislature would use impeachment and removal against a president save some action so egregious that it really would turn the public against the president in an unprecedented way (and that would probably lead to resignation before it would lead to removal by the Senate). The partisan tendency to protect its own and the human capacity to rationalize the actions of one’s own team is quite powerful.
Maybe shooting someone on Fifth Avenue would do it, but maybe not.
At a minimum, the notion that the impeachment process can actually act, in Hennessey’s words, as “a genuine check on executive overreach” is almost certainly dead letter (and has been maybe since the beginning, but certainly in now).
I would add: the odds are huge that only a party opposite that of a sitting president would impeach in the House to begin with. As such, the partisan nature of the process is pretty much overwhelming in any realistically conceivable scenario. Impeachment and removal is therefore only a real possibility where the party opposite the president holds the House and an overwhelming number of seats in the Senate. But in what scenario could party X win the Senate in such a fashion and yet not hold the presidency?
*Giving credit where credit it due, occasional OTBer Chris Lawrence reminded me of that phrase on Twitter recently.