The politics and practicalities of impeachment

House Speaker Nancy Pelosi’s (D-Calif.) declaration that she is “not for impeachment” was met with defiance in some quarters of the Democratic caucus and howls from the instant experts on cable news.

Some saw a dereliction of Constitutional duty, summed up by Rep. John Yarmuth’s (D-Ky.) claim that the failure to use impeachment against a president this lawless renders the constitutional tool “meaningless.” On a recent Sunday show, ABC News’s George Stephanopoulos incredulously asked if the decision meant impeachment was “simply political?” As though there would be something wrong if it were. 

{mosads}The idea that impeachment must be automatic anytime a member of Congress or a majority of Congress believes the president has committed impeachable offenses is simply wrong.  It ignores the way our Constitutional framers ingrained politics into the very design of impeachment and intended the choice whether or not to impeach to require many extra-legal considerations.

The framers hotly debated whether the Supreme Court should adjudicate impeachment so the president would not be subject solely to the judgment of the legislative branch or if impeachment trials should occur in the Senate, which was more representative of the breadth of the nation and more attuned to the practical and political impact of removing the Chief Executive.

Alexander Hamilton explained why the latter view prevailed in Federalist 65.  In contrast with run of the mill lawbreaking, he wrote, impeachment offenses are by their very nature “POLITICAL” – generally involving a breach of the public trust or an abuse of the powers of office. And the consequences of impeachment and conviction are themselves fundamentally political – a convicted official doesn’t go to jail, he or she is simply removed from office. 

Once given to politicians, Hamilton acknowledged that political considerations would come into play including “animosities, partialities, influence, and interest.” Hence the two-thirds threshold for removal to ensure that this powerful tool was only deployed in times of real and overriding consensus – not as just another tool in the legislative back and forth.

So it’s entirely unsurprising and appropriate that Speaker Pelosi appears to be weighing politics, including whether pursuing impeachment will expose Democrats to charges of partisanship or make them seem out of touch with the people’s more practical needs; whether enough senators will vote for removal of the president to make the impeachment effort have a concrete impact or what harm would flow from an impeachment that died in the Senate; and whether the news media will meaningfully cover any other issue while the possibility of impeachment hangs in the air. 

If those are some of her questions, it’s hard to argue with her answers. Not one Republican senator has expressed any openness to impeachment based on the currently available information. 

Surely she is right to fear that a press that has consistently skimmed past even the most grotesque Trump abuses will readily parrot the president’s claim that impeachment under almost any but the most cut and dry circumstances is partisan.  And on the subject of cable news’s impeachment obsession, the one-day wall-to-wall coverage of Pelosi’s statement about not impeaching kind of proves the point.

In my view, the public record is replete with facts that strongly suggest the president has committed numerous impeachable offenses.  But a supermajority of the American people does not yet agree.  Nor is there any inkling that even one Republican senator would break with the president, let alone the twenty needed to remove the president from office.

Given that, Democrats must move forward and do their job on issues like health care, infrastructure, immigration, wealth inequality, and outsized corporate power. They campaigned on more than just Trump oversight and must deliver for voters who are counting on them. And they must make a case for what government would look like under a new Democratic administration, however it comes to pass.

Of course, they should continue to investigate and hold the president and the rest of the administration accountable for their many misdeeds and breaches of the public trust without the oxygen-sucking shadow of impeachment hanging over every hearing.

Democrats should applaud the Speaker for giving her party the space to do all that and more.

And if those hearings – or the report to Congress on the results of the Mueller investigation – do produce the kind of evidence that shifts public opinion and Senate votes, Speaker Pelosi can revisit this issue.

Ted Kalo is the former General Counsel to the House Committee on the Judiciary and has worked on one presidential and two judicial impeachments.