Even as House Speaker Nancy Pelosi tries to put talk of impeachment on the back burner, Justin Amash has become the first Republican congressman to call for Donald Trump to be removed from office. This weekend on Twitter, as the Founders intended, Amash wrote, “Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.”
Amash goes on to claim that impeachment requires merely that “an official has engaged in careless, abusive, corrupt, or otherwise dishonorable conduct.”
Of course, tweets are not Articles of Impeachment, Mueller’s Report does not indict Trump for obstruction and does not state that the reason for not indicting Trump is because he is president, and the Constitution does not include “careless, abusive, corrupt, or otherwise dishonorable conduct” as grounds for presidential removal.
People may not like them, but those are the starting and ending points on impeachment. Simply repeating an alternate version of reality cannot change things. So maybe this is little more than grandstanding by Amash.
But alongside Amash’s tweets are dozens of similar bleats from politicians and the media. Trump’s detractors gloat that impeachment isn’t a judicial process but a “political” one. By that they mean that less rigorous standards apply (Amash has stated that there is no obligation to show even probable cause that a crime was committed in order to impeach) and somehow that’s a good thing. Many express near-joy that the constitutional requirement for impeachment, “high crimes and misdemeanors,” isn’t defined in the law and so can be anything a partisan House wants it to be. Somehow that’s good for the democracy they otherwise see as under threat.
What the calls for impeachment have in volume they lack in specifics. Most simply refer back to Mueller’s didn’t-reach-indictment non-conclusions and leave it there, as though the Report says something clearly that it does not say obliquely. The worst of these ramblings cite Hamilton. What they all do, from Amash to Trevor Noah, is rely on assumed agreement with their audience that Trump is guilty—of something, though they’re not entirely clear what.
The only specific pseudo-justification comes from a sub-group that sorta kinda admits that the Mueller “road map” is a bit fuzzy on actual guilt, but that sees impeachment as a kind of super-investigative process that can take another shot at finding chargeable crimes.
This strategy becomes clearer when one looks at the real reason behind the mania: Democrats and the media have been trying to remove Trump from office even before he arrived. First it was the Electoral College that was going to stop him. Then came the Emoluments Clause and the 25th Amendment. The path forward jelled in January 2017, even before the inauguration, as strategic leaks from the intelligence community pushed Russiagate to the fore. Trump was a Russian agent, the Manchurian Candidate. The nice folks in the Deep State would investigate, and their Report would segue smoothly into impeachment proceedings just in time for the 2020 election season.
After the Report showed there was no collusion or conspiracy with the Russkies, the Democrats and media pivoted as one, literally overnight, claiming (failed) obstruction of a Report that cleared Trump of treason. This, they declared, had been the real crime all along. The only problem was that the Report did not support obstruction as grounds for impeachment either. So in the wink of an eye, the new plan was for the House to subpoena documents, call witnesses, and conduct a re-investigation into whatever it was Mueller failed to uncover.
This belief in the investigative magic of the House ignores the vast powers that have already been brought to bear, including the surveillance that preceded Mueller’s work and provided the fodder for those early perjury traps against Flynn, Papadopoulos, and others. Mueller used the threat of jail time to pressure people into cooperating, but in the end produced little actionable material. The House, thinking it will find the smoking gun Mueller missed, also ignores the entrapment ops that the FBI ran against the Trump campaign, which produced little beyond excuses for more surveillance.
These post-Report improvisations raise a question: why not just ask Robert Mueller? The White House is not blocking his testimony, and the House has not subpoenaed him. Still, no testimony is scheduled while “negotiations” take place between Mueller and the committees. For a nation supposedly in crisis, there doesn’t seem to be too much of a rush. The Report has been out for close to two months.
Or maybe Democrats are not in a hurry to call Mueller because they don’t want to hear him answer as to why he did not indict anyone new. Maybe Dems don’t want to hear Mueller reveal how early he realized the Steele Dossier was garbage yet still kept silent. Maybe they don’t want him talking about the origins of the Russia investigation. Maybe they don’t want him to testify at all. Better to leave him offstage, where they can put words in his mouth.
And with that, it’s time to take a deep breath and consider what impeachment is really all about.
Impeachment allows Congress to overturn an election. That is a very, very big deal. The Constitution vests ultimate power in the people, and throwing out their choice is in a way the ultimate undemocratic act.
What impeachment also is not is a midterm check of “fitness.” It is not a constitutional pause for a referendum on how the president is doing. It is not a way to resolve differences of opinion, policy, or propriety. The Founders were well aware of how parliamentary systems could easily expel leaders with votes of no confidence in such situations, and they chose something very different for America. They gave great sanctity to having a president serve his full term.
Impeachment is also not a way to bypass other investigative tools and allow a partisan House to poke around a president’s decisions, pre-election business deals, and personal life, or to amass info short of actual impeachable evidence as campaign dirt on the public dollar.
This final conception of impeachment, an expedient to get around Trump refusing to comply with various subpoenas, is particularly odious. The claim that we are in a constitutional crisis because the White House is contesting document requests—what Pelosi calls Trump’s “self impeachment”—is nonsense. Contesting subpoenas thought to be too broad or irrelevant is an inherent part of due process and is nothing new or unique to the Trump administration. What would be unique is to open impeachment hearings as a work-around to having the courts rule, as they always have, on the push and pull between the executive and legislative branches.
The closest the United States ever came to forcing a president out of office was with Richard Nixon in 1974, and much is being made over the fact that one of the charges brought against him was obstruction of justice. But things were very different back then.
Nixon’s obstruction had clear underlying crimes behind it. Republican operatives broke into the Democratic National Committee headquarters at the Watergate building and Daniel Ellsberg’s psychiatrist’s office. The latter, often left out of Watergate history, was intended to gather blackmail material or discrediting information to use against the leaker of the Pentagon Papers.
Nixon’s obstruction took the form of paying cash from a slush fund to the operatives to buy their silence or have them commit perjury. Nixon sought information from the CIA to use against his enemies. He personally and unambiguously ordered a cover-up. His own White House counsel testified against him. Watergate burglar James McCord stated that his written testimony, some of which was perjured, was compelled by pressure from the attorney general. Audio tapes of Nixon committing these very acts existed. Nixon then defied a Supreme Court order to release the tapes, fired the special prosecutor who drove that process, and attempted to seize control of the investigation via a new prosecutor.
That is what real obstruction, and the evidence to prove it, looks like.
And all of that came before the actual Articles of Impeachment were filed. By the time the case was moving to the Senate, there was no need for pundits to speculate on road maps, no need for explainer articles, and no dots left to connect. It makes the current situation seem silly.
Nancy Pelosi is right to put the brakes on impeachment. Not because of some political calculation, but because turning the Constitution’s provision for overturning an election into a hunt for dirt, or a way around the checks and balances of the courts, chips away at the very foundation of our democracy.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan.