The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Speaker of the House Nancy Pelosi has recently repeated her longstanding views regarding President Donald Trump and impeachments. Her bottom line: "I'm not for impeachment."
Impeachment is so divisive to the country that unless there's something so compelling and overwhelming and bipartisan, I don't think we should go down that path, because it divides the country. And he's just not worth it.
She directed the attention of the Democrats to the 2020 election and to the coming months of aggressive congressional oversight of the administration, or as Trump would prefer to characterize it, "presidential harassment."
Democrat Rep. Jamie Raskin countered, "The question is whether the republic is worth it and whether the public interest commands it and whether there are high crimes and misdemeanors." Raskin may eventually get his way since his sentiments are shared by many Democratic activists, but Pelosi is making some important points.
Pelosi is no doubt remembering the Clinton impeachment and how the Republicans wound up making the president into a sympathetic figure for much of the public. The political fortunes of the Democratic Party have seemingly been on the upswing since the 2016 elections, and Pelosi would prefer not to lose that momentum by getting too far ahead of public sentiment. Public support for impeachment has hardly budged over the course of Trump's presidency. The Democratic base was ready for impeachment on day one, but the advocates of impeachment have not managed to persuade many more to join that cause. Perhaps a steady diet of House oversight hearings will move the needle, but that remains to be seen. In the meantime, the Democrats can benefit from a weakened Republican incumbent.
Implicitly, Pelosi is rejecting the claim that Raskin wants to make. When Raskin says the "republic is worth it," he is asserting that the president is too dangerous to leave in power until 2021. When Pelosi says "he's just not worth it," she is implicitly saying that Trump in fact poses no real dangers to the republic. There is no crisis. There is no emergency. There is just an unpopular president of the other party. In effect, she thinks the activists don't need to do this, but they'd rather do it much faster.
That does not mean that Pelosi necessarily disagrees with Raskin's assessment that "there are high crimes and misdemeanors." The question is what follows from that assessment given present circumstances. Some think that such offenses are enough. Pelosi is effectively indicating that the presence of impeachable offenses is a necessary but not a sufficient condition for launching an impeachment. Pursuing those charges is not worth it in this case. There is too little to be gained.
Of course, one reason why there is too little to be gained is because the Democrats almost certainly do not have the necessary votes to convict the president in the Senate. Ezra Klein and Gene Healy have suggested that we should "normalize" presidential impeachments. The supermajority requirement for conviction in the Senate, however, means that normalizing impeachments in the current circumstances will generally mean futility in a Senate trial. As a practical matter, if the opposition party wants to remove a sitting president through the use of the impeachment power, it needs to be able to persuade at least a few senators from the president's own party to vote to convict him. If we were to "normalize" impeachments in the House, it is hard to imagine that we would be able to make it any easier to reach across the aisle in the Senate and persuade senators to vote against a president who remains popular among his own partisans.
So that leaves the question of whether there is any point to a presidential impeachment when it is a foregone conclusion that the result will not be the premature removal of the president from office. If Raskin or Tom Steyer think that impeachment is a good idea regardless of whether anyone other than Democrats are in favor it, then they need to answer the question of why it is worth impeaching a president even when removal is not on the table. The answer to that question cannot be that the president is too dangerous to tolerate in office, because futile impeachments will not change that situation one bit.
Such an impeachment might better be understood as a particularly strong form of a resolution of censure. It would express the sense of the House that the president has behaved very badly. There might well be reasons for sending such a message. The House might simply want to go on record stating that some of the actions they have observed are indeed impeachable, or should be regarded as impeachable if observed again during other presidencies in the future. Impeachments can be a useful vehicle for forcing a debate on how we expect government officials to conduct themselves in office and for changing our constitutional norms and practices. An impeachment can accomplish that result even if the impeached official in not removed.
But if norm-building is the point of an impeachment of Donald Trump, then Democrats would need to build that case. They would need to focus their attention not on the relatively arid question of whether the president has committed a high crime or misdemeanor, but on the more substantive question of how we expect presidents to behave in office and why. In discussing that question, Democrats may even find that impeachment is a counterproductive vehicle for developing a political consensus around a set of norms for future political behavior. They would need to make the debate less about Trump and more about the health of the constitutional order. But that might not be a debate that Democrats actually have any interest in pursuing.