Considering impeachment’s future

After a 100-year hiatus, there have been four impeachment proceedings against a president in less than 50 years. Only the first was fully satisfying; any in the future likely won’t get better.

As a constitutional weapon, impeachment seems lacking — no president has ever been convicted in the Senate. As a political weapon, the record is mixed. Whatever the wisdom of the Founders, they didn’t envision an impeachment process dominated by political parties as it now is and will continue to be.

Those 17 Republicans who voted over the past month to impeach or to convict Donald Trump rose to the occasion; it was the most bipartisan of the presidential impeachments.

Former Sen. Jack Danforth, a pillar of the old Republican and legal establishment, said “If what he did doesn’t warrant conviction, what does?“

Yet 240 congressional Republicans sided with Trump.

Supporters of the latest impeachments worry the bar is too high, a conviction requiring two-thirds of the Senate. It has been more than 50 years since any party had that advantage — and that was when the president was of the same party. Others worry impeachment threatens to become routine, even if the results won’t be much different.

All the elements that made the 1973-74 impeachment case against Richard Nixon a widely acknowledged success — bipartisan cooperation among members and staff, fair-minded witnesses, a long record and time — are unlikely to be replicated.

In the second Trump impeachment, House managers led by Jamie Raskin (D-Md.) did a superb job, creating an important historical record. If it were a contest between the two legal teams, it would have been a TKO.

Clearly, there should not be a “January exception,” where a president commits a “high crime or misdemeanor” in the last weeks of a term and it’s simply overlooked.

However, Michael McConnell, a former Republican appeals court judge and supporter of the Trump impeachment argues the prosecution was too narrow and crime-centered. The Trump-incited mob assault on the Capitol on Jan. 6 tried to prevent the counting of electoral votes that officially gave the election to Joe Biden, but it was only the culmination of Trump’s desperate two-month effort to overturn the legitimate election.

I know lawyers who think the impeachment case was open and shut — but are uncertain whether Trump would be convicted in a criminal case. We may find out.

But impeachment is a political not a legal matter; that’s why the Constitution gave it to Congress, not the courts. Walter Dellinger, the former solicitor general, told me a president, hypothetically, could give a large swath of land and drilling rights to Saudi Arabia — that might not be a criminal offense, but it sure is an impeachable one.

Conversely, lying about a sexual affair might be a criminal offense; it surely shouldn’t be an impeachable one. The only reason it was with Bill Clinton was a zealous, partisan prosecutor.

As University of North Carolina law professor Michael Gerhardt observed years ago, for impeachment there needs to be a “nexus between the misconduct of an official and his official duties.”

Ok, you ask, what if a president shoots someone on Fifth (or Pennsylvania) Avenue? That underscores that a president should be indictable when in office: If it’s a frivolous charge, a judge likely would throw it out.

The one impeachment that worked — though Nixon resigned before it came to a vote — was unique, especially in contrast to today. The House Judiciary Committee was headed by a politically sensitive chair, Democrat Peter Rodino and a counselor, records built by the courts and particularly the Sam Ervin-led Senate Watergate Committee the year before, willing witnesses, a professional independent counsel. When it came crunch time, Republicans Tom Railsback and Bill Cohen worked with Southern Democrats Jim Mann and Walter Flowers to produce a compelling consensus for impeachment.

Try to picture that today.

Sen Lindsey Graham (R-S.C.), always eager to please his new mentor Trump, warned if the GOP takes the House next year, they might impeach Kamala Harris.

With that sort of sophistry — and assuming there’s no Trump in our future — it’s worth revisiting the caution back in the 1970s of Yale Law School professor Charles Black, the foremost authority on impeachment:

“In the long haul we must put the spear of impeachment back in the closet, though coated with cosmoline against rust. There are infinitely numerous milder ways in which the elephantiasis of the presidency can be treated.”

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts 2020 Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.