Some Brief Thoughts on Impeachment

The Democrats could have, but did not, make the case that Trump is unfit to hold office

|The Volokh Conspiracy |

I was listening to NPR in my car today and heard one of the House managers make the case that I though the Democrats should have made all along–that Trump's Ukrainian mess was not a one-off, but part of a very troubling pattern of behavior by the president that renders him unfit to hold office. This includes everything from insulting a gold star mother to asking Russia to hack Hillary's emails to constant lies and deceptions, and so on.

Influenced by co-blogger Keith Whittington, I have come to the conclusion that impeachment should be reserved for presidents who are not just incorrigible in misbehaving, but incorrigible in ways that Congress can't easily control through normal checks and balances. There is a good case to be made that this describes Trump. But while a House manager tried to make it today, that's not what the impeachment hearings were about, nor is that what is in the articles of impeachment.

What we do have is obstruction of justice and the Ukrainian situation. With regard to the latter, I think that the Democrats would have an open-and-shut case for impeachment if they could show either that (1) Trump really did not believe that the Bidens had done anything wrong, and thus tried to sic the Ukrainians on them solely because Biden Sr. is his political opponent; or (2) that Trump tried to get the Ukrainians to make up damaging evidence, rather than simply launch an investigation. Instead, we have dubious behavior that is "impeachable," but probably every president has engaged in impeachable behavior. (Certainly Obama engaged in a fair amount of impeachable conduct, but even in my book about his misbehavior, I never suggested he be impeached). In the annals of presidential misconduct, it's relatively small beans–unless, of course, it's part of a broader pattern of misbehavior, which is exactly what the Democrats, in their rush to conclude the impeachment process before the campaign season, chose not to investigate and allege in the impeachment articles.

I'm also dubious of impeachment unless there is a clear public majority in favor of it, which is one of the reasons I opposed impeaching Bill Clinton. After all, unlike in a parliamentary system where new elections are usually called when the PM is removed, in the U.S. the Vice-President takes over, and nobody voted for him to be president.

All that said, I have been contemplating a question that I'm unsure of the answer to: Let's say I were a Senator voting my conscience, and I believed the following: (1) Trump's conduct is "impeachable"; (2) I wouldn't normally vote to convict on the level of misbehavior alleged in the articles of impeachment, especially in the absence of strong public support for it; and (3) allegations and evidence not put forward by the House persuade me that Trump is unfit to be president. Should I vote to convict?