Donald Trump

Creeping a Little Faster Toward Impeachment

The impeachment effort starts to gain momentum.

|The Volokh Conspiracy |

I first became interested in high-profile federal impeachments in the early 1990s. I had my reasons. They eventually became a central component of my one of my first books on the significance over the course of American history of elected officials shaping the effective constitutional understandings, practices and norms that governed much of American politics. Impeachments were one way that politicians struggled to remake constitutional meaning. Impeachments were tools of constitutional construction.

That seemed like an admittedly arcane thing to study at the time, but soon enough Bill Clinton got himself impeached and suddenly esoteric knowledge seemed relevant—even as the Republican Congress did not seem to be doing a very good job of explaining why an impeachment was either necessary or useful. The question is what lessons we would learn from that experience. But as I noted in Reason at the time,

In the end, Congress seems to have stumbled to the right conclusion, and the American people appear to be making an appropriate assessment of last year's events.

Maybe we'll do better this time, but I wouldn't bet on it. In any case, I've been writing a lot about impeachment issues over the past couple of years.  They are collected here. For a deep dive into the impeachment process and the standards for assessing potentially impeachable offenses, I have posted a longer review essay here.

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  1. I don’t understand the point of this article. It makes a claim that impeachment is starting to gain momentum, then cites ancient irrelevant articles but nothing current to back up the claim.

    1. Same here. Some kind of academic virtue signaling, maybe?

      but hopefully the professor will come along in the comments and explain.

      1. It’s reference material, not current discussion. Useful, but not completely applicable. Certainly I would not call it a waste of time or virtue signalling.

        1. But why no current material references when the title and subtitle both imply recent increasing momentum?

      2. Ditto. A February review article? While review articles are nice, when dealing with current events, especially after the Mueller report, this is a lifetime…

    2. Yes, I’m not seeing the momentum, either. I suppose he means the House proposal to establish formal procedures for going forward.

      I’m not seeing that as gathering momentum. It’s forward progress, sure, but more like Zeno’s paradox; The closer they get to impeachment, the slower things get.

      Here’s Politico’s breakdown on a potential impeachment vote. Right now it would be handily rejected, they haven’t got one Republican favoring it, and a significant fraction of Democratic House members are opposed.

      It requires a 2/3rds vote in the Senate to convict, and they haven’t even got 2/3rds of the Democrats on board yet!

      It looks to me like they’re trying to use an “impeachment investigation” as a lever to violate grand jury and tax filings privacy, so that they can extract things that can be used to smear Trump in the coming election, even if they’re not legally relevant to impeachment.

      1. If you don’t have unassailable conclusions already in hand, what’s the point of starting an investigation?

        Carry on, birther-class Benghazi fans.

        1. Generally speaking, to go forward you need to have at least SOME reason to believe an offense has been committed, beyond not liking the proposed defendant.

          1. “to go forward you need to have at least SOME reason to believe an offense has been committed”

            OK. What else?

            1. I said besides not liking the proposed defendant.

              1. And I said “what else” in response to the “they have to have reason to believe impeachable offenses have been committed” part.

        2. Once upon a time, we thought the birther conspiracy theory that the Clinton campaign started was really bad.

          That was before the Russia conspiracy theory came along and blew that one out of the water, with a depth and breadth of derangement a thousand times worse.

  2. Good, the impeachment of Ginsburg is WAY overdue!

    1. It’s unfortunate that there probably won’t be room on Rushmore for her after America’s betters celebrate universal health care (to be official named Obamacare, I hope) by placing Pres. Obama on that mountain.

  3. The D leadership has approximately zero interest in impeaching our current President. This is so for a number of reasons. The first, and most important, is a lack of interest in dealing with a President Pence eligible for two re-elections. Then there’s the fact that there’s approximately 0.00% chance of obtaining a conviction in the Senate. Then there’s the cost of pursuing a trial, which would divert resources from other things, and the very real possibility that pursuing an unsuccessful impeachment might make the President more popular leading into his re-election campaign. Finally, there’s the fact that President Trump is remarkably ineffective as a leader, and they might prefer to keep him right where he is, poorly leading the R’s.

    No, Mr. Trump will be removed from office by losing the election, or not at all. Put all the resources on beating him in the court of public opinion rather than in the Senate (this advice is meant for both parties.)

    1. Finally, there’s the fact that President Trump is remarkably ineffective as a leader

      He’s pretty good if you take the cynical position that politicians accomplishing little is a good thing.

      His big concrete (this is the buzzword-o’-the-week) accomplishment is way way overspending, which, of course, Congress had to be dragged kicking and screaming into.

      1. In fact, he dragged them kicking and screaming into it by the clever means of proposing budget cuts. That’s some major league budgetary judo.

    2. “This is so for a number of reasons. The first . . .”

      Actually, the reason is that the Russia Hoax was a delusional conspiracy theory that they all knowingly lied about.

      1. I’ll leave the topic of delusional conspiracies entirely to you.

        1. Good I’m glad you weren’t suckered into it. Nearly half of this country lost their minds and had to go to therapy over it.

          1. I’m sure you’ll get better, once you seek treatment.

            1. Not to worry, I obviously wasn’t suckered into it either.

              1. I said once you seek treatment. Obviously, until then…

    3. There’s also the matter of the 1999 Senate precedent that established that even clear proof of obstruction of justice, if there was no underlying crime, isn’t grounds for removing a President from office.

      1. I don’t think it’s clearly established that impeachment trials must follow precedent.

        1. No, it isn’t binding, it’s just an additional political factor. Every Republican can explain a pro-Trump vote as simply upholding “the Clinton precedent” as it not rising to the standard of removal rather than actually condoning Trumps actions. On the other hand, several senior Democrats would have to explain why they reversed themselves. (And the Obama-then-Trump voters are especially likely to be skeptical of the explanations.)

          1. ” Every Republican can explain a pro-Trump vote as simply upholding “the Clinton precedent” as it not rising to the standard of removal rather than actually condoning Trumps actions.”

            Republicans won’t care. Democrats won’t believe them. And people who avoid politics won’t even ask.

            “On the other hand, several senior Democrats would have to explain why they reversed themselves.”

            I believe the “senior Democrats” would say “Clinton was guilty of lying under oath, but he shouldn’t have been asked the question under oath, so he shouldn’t have been removed from office.” which is different from Mr. Trump’s offenses, which are both A) repeated and B) of his own making. And, similarly to the above, D voters would mostly buy in, R voters would scowl and say “yeah, right”, and the people who hate discussions of politics would have already left the room.

            And then the R’s vote to impeach President Warren on day 3 after her inauguration, and then whoever the R’s elect next gets impeached before inauguration, and then whoever the D’s elect next gets impeached in mid-November, and then…

            1. Yes, the three categories you mention (dedicated Ds, dedicated Rs, and people who don’t care) wouldn’t be affected. But they aren’t the entirety of the electorate.

              By the way, the response you give misses the point. On the obstruction charge of the impeachment, the issue wasn’t Clinton’s testimony under oath; that was the perjury charge. The issue was how Clinton attempted to influence the testimony of several witnesses and encouraged concealment of evidence.

  4. Please please please Dems impeach Trump. In fact double impeach him just to make sure he is impeached. Please do it.

  5. The text of the article does not bear any relationship to the headline or subhead. A more accurate headline would have been “Background Material on Impeachment,” with a subhead “Theoretical Historical Study Reveals No Clear Answers for Current Questions.” I admit, that wouldn’t sell.

  6. It was not federal, but have you examined the failed attempt to impeach the West Virginia Supreme Court last year? Unless something has changed, the WV House Republican’s cert petition is pending before the Supreme Court, which asked for a response from Justice Workman. It is obviously a long-shot for them to grant the petition, but if they did it would provide a vehicle to definitely address a number of questions about the ability of courts to intercede in impeachment cases.

    One of the key questions is what happens during the inevitable challenge in federal court after a President is removed by the Senate; especially since it is almost axiomatic that this will happen in a moment of national crisis. It is likely that there would be a federal district court judge, somewhere, who would issue an injunction.

  7. Impeach Drumpf. Do it do it now preferably right before the election. Come on you know you want to.

  8. My limerick on the Clinton impeachment, penned in 1999:

    The President said to the Ms.:
    “Your mouth is a nice place for jiizz,
    And whether it’s moral
    For you to give oral
    Depends on the meaning of ‘is’.”

    1. Lovely. I can’t help but think how history would have been different, had Ms. Lewinsky swallowed, like a good girl should.

  9. It doesn’t matter if the Democrats impeach Trump, what only matters is if the Republicans decide to convict Trump. Lesson learned from Clinton impeachment,

    1. “It doesn’t matter if the Democrats impeach Trump, what only matters is if the Republicans decide to convict Trump. ”

      If the D’s don’t impeach, the R’s can’t convict.
      Whether the R’s have sufficient leverage to “convince” Trump to resign is a question we’re unlikely to get a conclusive answer to, but I kind of doubt it.

      1. Having that leverage would require having a cause to impeach which was sufficient to convince Republicans to vote to convict. Nixon didn’t resign because of “leverage”, he resigned because the Republican leadership could credibly tell him he’d be convicted if he were impeached.

        At present, the case for impeachment only persuades people who already wanted rid of Trump, and not even most of them.

        The lack of leverage is due to the lack of a case against him.

        1. “Having that leverage would require having a cause to impeach which was sufficient to convince Republicans to vote to convict”

          Why would this be so? The R’s might want him to resign for reasons that were utterly unrelated to impeachable offenses.

          “Nixon didn’t resign because of ‘leverage’, he resigned because the Republican leadership could credibly tell him he’d be convicted if he were impeached.”

          Ah. Nixon didn’t resign because of “leverage”, he resigned because of leverage. True enough.

          “At present, the case for impeachment only persuades people who already wanted rid of Trump”

          Well, I’ll meet you at “the case for impeachment doesn’t persuade people who want to keep Trump on the job”.

          1. Why would this be so? The R’s might want him to resign for reasons that were utterly unrelated to impeachable offenses.

            And the D’s want him impeached for reasons unrelated to imeachable offenses.

            1. Sure. But they, uh, apparently don’t. Since “impeachable offenses” = whatever 218 Representatives decide are impeachable offenses.

            2. Oh, I’m sure quite a few of them do. Just not enough to commit political suicide by pressing the matter.

          2. “At present, the case for impeachment only persuades people who already wanted rid of Trump”

            Well, I’ll meet you at “the case for impeachment doesn’t persuade people who want to keep Trump on the job”.

            https://www.mometrix.com/academy/false-dichotomy/

            1. That’s not only NOT a false dichotomy, it’s not even a dichotomy.

              Go troll someone else today.

              1. James. Sorry, but there’s a host of people who dislike Trump but want him to finish office normally either due to the weak evidence or the bad precedent that it would set.

                There’s another host who are middling on Trump, but don’t want him impeached for the same reason.

                1. “Sorry, but there’s a host of people who dislike Trump but want him to finish office normally”

                  Why does this move you to sorrow?

            2. It doesn’t even persuade people who would otherwise want to keep Trump on the job. It persuades nobody who didn’t already want rid of him, and even fails to persuade many people who DID want rid of him.

              Basically, people don’t propose to impeach Trump because of various offenses; They purport to believe in the offenses because they want an excuse to impeach Trump. They were literally talking about impeaching Trump before he took office!

              1. Your willingness to speak for other people is noted, but ignored.

                1. You mean my willingness to remember what other people have said? I grant, it is inconvenient having people around who don’t cooperate in memory holing the past.

                  1. “You mean my willingness to remember what other people have said?”

                    No, if I’d meant that, I’d have written that. What I meant was what I actually wrote down.

  10. There is one thing that those pushing for an impeachment of Trump need to remember: There has never been a successful impeachment (defined as conviction in the Senate) of a sitting US President.

    1. That isn’t necessarily how the participants view “success”.

  11. It’s quite shocking the way people evaluate evidence based on their priors. From Twitter:
    Brian Stelter:
    “Trump just said there are people in line for his rally and “they are soaking wet.” Per CNN’s @betsy_klein, “it is 88 and sunny here in Fayetteville. It has not rained here today.””

    Trump Opponent:
    “For someone to lie about something like that, something is definitely mentally wrong with them. For someone to think it’s funny or normal to lie like this needs mental help themselves.”

    Trump Supporter:
    “They’re sweating, you dumbass!”

    1. PROFOUND MENTAL DISORDER HELP NEEDED! Classic case of projection.

    2. The hurricane finally got here after spending the week in Alabama.

  12. At this stage, Team R and POTUS Trump ought to just call the bluff: Go ahead, and try and remove him from office. Put up, or shut up.

    I suspect Team D will shut up. They for damn sure haven’t put up, lately.

    The country will settle this at the ballot box; and that is as it should be.

    1. “At this stage, Team R and POTUS Trump ought to just call the bluff:”

      It’s way to late for that. Before the last election, maybe. Now, after the D leadership announced that impeachment wasn’t something they were pursuing… far less effective.

      I mean, it would let the President bluster, which is something he seems to enjoy, but other than that, what exactly is the goal to be achieved in threatening the D’s with severe retribution if they do something they aren’t inclined to do?

      1. James, you are probably right about it being too late. But the kind of problem we have today can only be solved at the ballot box. The politicians are just not capable. So we the people will do it for them.

        1. The problems we have today won’t be solved at the ballot box, because you have 1/3 of the country that wants one thing, 1/3 of the country that wants whatever that first 1/3 doesn’t want, and the final 1/3 is so disinterested in the other 2/3 they don’t even register to vote.

          It might have been salvageable when it was just “half want this, and the other half want the other thing”. But now, it’s a serious case of if the D’s are for it, R’s line up against it (and vice versa) regardless of whether it’s something they might want, too.

          Example: When Obama went to the R-controlled Congress and asked for the authority to deport more people, and the R-controlled Congress didn’t even bother to consider the request… and the R’s back home cheered because they’d thwarted something Obama wanted to do. Once you reach that level of WTF-itude, it’s hard to even imagine that there is a path back to sanity, much less think one up.

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