Democrats should not jeopardize 2020 victory with impeachment

Democrats should not jeopardize 2020 victory with impeachment
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Democrats have an easy path to victory in 2020. Nearly every poll shows Joe BidenJoe BidenFormer Rep. Rohrabacher says he took part in Jan. 6 march to Capitol but did not storm building Saudis picked up drugs in Cairo used to kill Khashoggi: report Biden looking to build momentum for Putin meeting MORE defeating Donald TrumpDonald TrumpDOJ asks Supreme Court to revive Boston Marathon bomber death sentence, in break with Biden vow Biden looking to build momentum for Putin meeting DOJ tells media execs that reporters were not targets of investigations MORE in the general election. His brilliant response to the claim by Trump that he “abandoned Pennsylvania voters” when he moved to Delaware illustrates his ability to further increase the distance between the two. Biden responded to this predictable insult by pointing out that his move to Delaware at the age of 10 was forced by his father looking for a job that would feed his family, a concern that affects millions of Americans and something that Trump will never understand.

Biden can win by such a large margin that he will ensure that Democrats retain their majority in the House and possibly even take control of the Senate. Trump cannot keep that from happening, but House Democrats could jeopardize a landslide by Biden in 2020. They can accomplish that version of attempted suicide by rushing into an impeachment proceeding. An impeachment proceeding has the potential to divert public attention away from the Trump versus Biden battle that Democrats will win easily to a Trump versus the House battle that they will likely lose. The support for Trump stands at only 40 percent, but he is more popular than the House.

The constant drumbeat in support of impeachment centers on the claim that the House has a duty to impeach the president in order to protect the rule of law. That claim is based on a misunderstanding of the Constitution. Article I confers on the House the “sole power of impeachment.” However, nothing in the Constitution imposes a duty to impeach and, like with any power, those holding the power to impeach have to wield it responsibly.


The best way to think about the power to impeach is to analogize it to the power to indict. Impeachment accomplishes nothing in the legal sense except to enable the Senate to try the president. Such a trial can result in removal only if two-thirds of the members of the Senate vote to convict the president. But there is no chance of that happening. Indeed, just as no prosecutor should indict someone when there is no chance of conviction by a jury, the House should not impeach the president when there is no chance that the Senate will convict and remove the president.

The House can play a constructive role by continuing to act as it has for the last few months. It should continue to investigate the many causes for concern that the president has violated the law and betrayed the trust of those citizens who voted for him. Many Democrats are understandably frustrated by the constant delays caused by several White House efforts to stonewall and the slow pace of federal court proceedings to require the production of critical documents and the appearance of key witnesses.

If House Democrats are patient, those investigations will produce a steady flow of information that will make it difficult even for the members of his base to continue to support Trump. Gradually, more and more federal courts will order the production of documents and the appearance of witnesses that will provide devastating evidence against the president.

The one thing the House must not do is to begin a proceeding that has the potential to refocus public attention from a battle that Democrats can win easily to a battle in which the president begins with major advantages in public opinion. Trump of course would like nothing better than to be able to persuade the public that the 2020 election is about an effort by a gang of bullies in the House to force this duly elected president out of office.

Richard Pierce is the Lyle Alverson Professor of Law at George Washington University. He is the author of several books on government regulation and administrative law that have been cited in opinions of the Supreme Court.