History teaches that Nancy Pelosi is right about impeachment

History teaches that Nancy Pelosi is right about impeachment
© Stefani Reynolds

House Speaker Nancy PelosiNancy Patricia D'Alesandro PelosiTrevor Noah on lack of Pelosi nickname from Trump: 'There is a reverence for her' Trump says he would challenge impeachment in Supreme Court The Hill's Morning Report - Will Joe Biden's unifying strategy work? MORE (D-Calif.) recently waved a yellow “caution” flag to Democrats flirting with the idea of impeaching President TrumpDonald John TrumpDemocrats' CNN town halls exposed an extreme agenda Buttigieg says he doubts Sanders can win general election Post-Mueller, Trump has a good story to tell for 2020 MORE. Feeding the impeachment enthusiasm are House investigations of the president, his businesses and his appointees, plus the anticipated report of special counsel Robert MuellerRobert (Bob) Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE on the Russia-collusion investigation … not to mention criminal convictions of two Trump campaign executives, his personal lawyer, a senior White House adviser and three others.

Yet Pelosi emphasized that impeachment “divides the country” and should not be attempted “unless there’s some conclusive evidence” that requires it.

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History supports the speaker’s skeptical view. Only three presidents have faced serious impeachment attempts — Andrew Johnson, Richard Nixon and Bill ClintonWilliam (Bill) Jefferson ClintonPost-Mueller, Trump has a good story to tell for 2020 What Trump voters got right The Memo: Harris move shows shift in politics of gun control MORE — a small sample that yields five key lessons that should keep would-be impeachers sober.

Lesson 1: If you shoot at the king, don’t miss — A failed impeachment replaces one alleged constitutional injury (by the president) with another (failing to remove him). It burdens the nation’s political life and distracts Congress and the president from urgent public business.

A failed impeachment does no credit to its sponsors. The Radical Republicans of the 1860s are principally remembered for failing to remove President Johnson from office, not for securing the adoption of three landmark constitutional amendments: the Thirteenth, Fourteenth and Fifteenth.

The 13 Republican “House managers” in the Clinton case reside in history as men whose visceral contempt for Clinton blinded them to his high public standing; Clinton’s approval ratings actually climbed after the House voted to impeach him. Only one of those impeachers advanced in federal office; two others lost such efforts, while four more were out of Congress five years later.

Lesson 2: You need votes from the other party to succeed — Removal from office requires a two-thirds vote in the Senate, a very high bar. In 1868, 10 formerly Confederate states were not represented in Congress, denying Johnson much of his Democratic Party support, but he survived by winning every Democratic vote in the Senate plus some Republicans.

Clinton never was at risk of losing in the Senate. All 45 Senate Democrats voted to acquit their party’s president, while five Republicans voted to acquit on both impeachment articles; five more voted “not guilty” on one of them.

In contrast, in 1974, six of 17 Republicans on the House Judiciary Committee voted to impeach Nixon, a Republican. When party leaders told Nixon he would lose the Senate vote, he resigned.

The arithmetic is inescapable. Without votes from the other party, impeachment fails.

Lesson 3: Prove a crime — The constitutional standard for impeachment is “high crimes and misdemeanors,” an opaque phrase that was archaic when adopted in 1787. The Framers thought it would allow removal from office for executive abuses as well as for crimes.

Congress, however, has insisted that a crime be shown. In autumn 1867, Republicans proposed impeachment articles against Johnson that asserted he was a terrible chief executive but alleging no crime. The House of Representatives — including a majority of Republicans — voted against impeachment a wide margin.

Months later, the Republicans tried a new tactic, trumpeting Johnson’s criminal violation of the Tenure of Office Act. The House overwhelmingly impeached and the Senate came within one vote of removing him. The Nixon and Clinton impeachers learned from that history, including impeachment articles that alleged crimes.

Lesson 4: The president also must be “unfit” — As Clinton’s case demonstrates, removal from office requires more than a crime. Most Americans in 1999 thought the president was fit for his job even though he lied about a sexual relationship.

This standard of fitness, which appears nowhere in the Constitution, blends subjective notions of competence, integrity and honesty. Today, approval ratings in polls provide a rough gauge of whether the public thinks the president is fit for office.

Lesson 5: Don’t be gleeful — If a president’s offenses and performance warrant removal by impeachment, Congress should proceed. That duty, however, is a solemn one, not an occasion for eagerness, excitement or joy. The Nixon impeachers were serious and careful; the Clinton impeachers were fervent and excited. That made a difference in the outcome in each case. The joyful impeacher disgusts members of the president’s party, whose votes are needed.

Impeachment is a monster that consumes most of the oxygen in the political sphere. It decapitates one branch of government. Today, it would heighten polarization at a time when foreign nations and our own media already spend millions to pit Americans against each other.

Impeach if you must, but count the votes carefully — and don’t get happy about it.

David O. Stewart, a lawyer and historian, is the author of “Impeached: The Trial of President Andrew Johnson,” and was principal defense counsel in the 1999 impeachment of District Judge Walter L. Nixon Jr. in Mississippi.