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Why impeachment is a political act

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“Wherever law ends, tyranny begins.” These words by John Locke are part of the foundational texts of the political philosophy of the United States. Throughout the history of the American experiment, a bedrock belief is that every person, no matter how powerful, is subject to the law. Knowing very well the scope of human ambition, from its highs down to its lows, the founders built the system of checks and balances to ensure that no official, not even the president, could consider himself above the law.

Still, the founders knew that the president and other executive officials would be unique cases if they breached the bounds of legal and ethical conduct. Therefore, the power to impeach was given to Congress. As the Constitution simply says, the House has “the sole power of impeachment” while the Senate holds “the sole power to try all impeachments.” As for the result of the impeachment trial, the Constitution limits the Senate solely to remove the convicted from office and bar them from holding future office, “but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment” under the law.

Separating the impeachment process from the other legal liabilities of the impeached was a clear delineation that impeachment was in a different realm from the legal system. Further, in the Federalist Papers, Alexander Hamilton wrote of impeachment, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

One should read the letter by White House counsel Pat Cipollone to the leaders in Congress as one act in a broader political drama rather than any clear legal definition of impeachment, even as the letter confused the role of the House inquiry compared to what due process would be afforded in a Senate trial. What is truly stunning is that the White House has decided that it is effectively above the checks and balances of the Constitution, declaring that Congress has no authority to investigate this any further.

Doubling down on the political element, it also suggested that House Democrats were seeking to undo the 2016 election and influence the 2020 election, ignoring the irony that this entire inquiry is related to influence and interference in the 2020 election. If we start to weigh one election differently than another, ignoring the 2018 mandate of House Democrats, or assume that out elections automatically supersede our institutions, then we are on the road to becoming a banana republic.

Impeachment is a unique reflection of the politics of our era. The abrasive and entrenched nature of our current partisanship colors much of this, yet we also have to track how events unfold. With Republicans now breaking nearly wholesale from President Trump on Syria, his flaring temperament on full display for the world, and polls suggesting greater public support for impeachment, the political context becomes even more important.

No president has been removed from office by impeachment, but we can learn from the darkest days of the Watergate scandal before President Nixon resigned. Nowhere in the Constitution or the law did it suggest that the military should ignore any order from Nixon without the approval of former Defense Secretary James Schlesinger, yet Schlesinger gave such an order to the Joint Chiefs of Staff. Even as White House advisers were debating their defense of executive prerogatives, Republican leaders met with Nixon to explain that his support in Congress was collapsing. With the political writing on the wall, Nixon would then resign the next day.

It remains to be seen whether members of the Trump administration or the Republican caucus will make similar stands today, but we are entering one of the greatest political struggles at a time when our country has never been more divided. At the time of the Nixon impeachment, it was clear that his behavior and scandals were weakening the presidency, the Republican Party, and the United States. With the Cold War in full swing and economic stagnation gripping the economy, leaders in Congress understood that the resignation of Nixon would be the only way to move beyond the political crisis for the sake of the nation and its institutions.

Now, a similarly complex geopolitical and economic context, balanced with political considerations of party loyalty and primary threats launched on Twitter, will weigh on some members of Congress far more than the prerogatives of their institution or the overall rule of law, yet it is those institutions and the rule of law that we will count on to solve challenges beyond impeachment. Impeachment will not lower the cost of health care or secure our southern border. It will not fix our crumbling infrastructure or modernize our education system. It will be up to the same institutions to do the business of the people during and after impeachment, so we cannot let them be destroyed by partisanship and politics in the process.

Dan Mahaffee is the senior vice president and director of policy at the Center for the Study of the Presidency and Congress in Washington.

Tags Constitution Democracy Donald Trump Election Impeachment President

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