WASHINGTON. Should the U.S. House of Representatives impeach President Trump? That question is front and center this week. On Monday, June 9, the House Judiciary Committee will launch hearings around the Mueller report. Committee Chairman Jerry Nadler, D-N.Y., says that hearings will deal with “alleged crimes and other misconduct laid out in … Mueller’s report.”
One of those alleged crimes is obstruction of justice.
On Tuesday, the House will consider charging Attorney General William Barr and former White House counsel Don McGahan with contempt of Congress. (Update: The Democratic chairman of the House Judiciary Committee, Rep. Jerry Nadler of New York, says he has reached a deal with the Department of Justice on turning over evidence from special counsel Robert Mueller’s report relating to possible obstruction of justice by President Donald Trump.)
House Speaker Nancy Pelosi faces a tough challenge.
She wants to steer a caucus increasingly eager to impeach away from impeachment. The political calculations show that an impeachment is a risky option that could backfire on the Democrats. According to polls, only 37 percent of voters favor impeaching Trump. 63 percent think further investigations will hurt the country, and 58 percent want Congress to move past the Russia investigations.
If House Democrats vote to impeach Trump, Senate Republicans will almost certainly vote to acquit him and voters may treat impeachment as a purely political stunt.
Pelosi’s challenge remains tough, if only because members of Congress don’t customarily act on principle. They tie constitutional, moral and political principles into messy and unnecessary knots.
The constitutional case to impeach…
The constitutional and moral principles in this case overlap. The Constitution grants the House “the sole Power of Impeachment” of Federal officers (Article I, Section 2). The House can impeach for “Treason, Bribery, or other high Crimes and Misdemeanors” (Article I, Section 3). The Constitution at the same time is vague on what constitutes a “high crime” or “(high) misdemeanor.” The House has to decide for itself.
However, the House has decided just 19 times in over 200 years to impeach a Federal officer, and only twice a U.S. president.
The reasons for impeachment have varied from intoxication on the bench to favoritism to improper business relations with litigants to obstruction of justice and perjury. Congressional Democrats think the Mueller report makes a case against Trump for obstruction of justice.
If they really believe that, then their duty is clear: Hold hearings. If the evidence convinces them, vote to impeach President Trump. That isn’t difficult. There’s no tough challenge for Pelosi. She can do the right thing and pursue justice, or not. If the evidence is weak, she could close down the hearings and move on.
…and the political case
The removal of a president from office is a fundamentally political act. Americans disappointed in Mueller’s refusal to call for an indictment of the president should remember that. Nancy Pelosi certainly does.
No law prohibits the indictment of a president. Only Justice Department tradition stopped Mueller from calling for that. But that tradition is tied to a belief: The removal of a president from office is a fundamentally political act. That act belongs in the political arena, not in the courts. The courts should not do the political dirty work of politicians too frightened to do it themselves.
Pelosi clearly is frightened.
The political case to impeach is more direct than the constitutional or moral case. It is a naked calculation. So what are the odds of success? Success isn’t measured just by passing articles of impeachment. In this case, it will be measured by Democratic victories at the polls in 2020. Pelosi is frightened because the odds of success are far from certain.
Hence she says she doesn’t want Trump impeached. She wants him in prison.
The case for cowardice
Pelosi is pandering to House Democrats who want to move against the president while at the same time not giving them what they want. She wants Trump removed from office, but she wants the courts to do it. If the House tries, she fears the attempt will be seen as political because, fundamentally, it is.
That doesn’t mean the House shouldn’t call hearings to present the evidence. And, if the evidence is sufficient, vote to impeach Trump. Sometimes what’s right is expedient, and sometimes it’s not. Not everything that is political is wrong.
Whether Trump is really guilty of obstructing justice isn’t the issue here. The issue is that Speaker Pelosi doesn’t take the responsibilities of the House seriously enough to allow hearings to lead to impeachment. She doesn’t take her constitutional duty seriously enough to stand for what she says she believes. If she wants Trump in prison, the path there goes through the Judiciary Committee, onto the floor of the House and into the Senate.
House Democrats haven’t made the case to impeach President Trump. That’s what hearings are for. Or they would be, if House leadership believed in the political case.
They don’t, and that’s all that matters to them. Their more radical colleagues hope that the hearings will help make the political case. The polls say that’s unlikely. The flock of Democratic presidential hopefuls has already descended on Iowa. With the campaign season upon us, the odds that Democrats can make a principled case for impeachment are receding.
It’s better to be lucky than to be good. Donald Trump is one lucky man.
— Headline image: Cartoon by Branco. Reproduced with permission and by arrangement with Legal Insurrection.