Impeaching Trump is neither required nor unconstitutional
The last thing anyone needs is another impeachment article, but I can’t help myself. Just like in the Brexit saga, which has, mercifully, been dealt with at long last, our representatives are unable to function as a decision-making body.
With Brexit, it seemed that in Parliament, the very idea of serving their function was evidently horrifying to them, an egregious position for the people to have put them in. Literally the only ones able to directly address the situation, they instead waited years for some sort of outside intervention, refusing to make meaningful decisions of any kind. They wouldn’t prepare for Brexit; they wouldn’t call another referendum; etc. It was a religious behavior more than anything else. The human minds involved were simply not going to be put to use — they had to find some rule floating out there that removed any idea of decision. As there obviously isn’t one, they tried to invent them , but in the most futile, gesturing, mystical way— the margin wasn’t high enough, the Brexit voter had been lied to, hence the vote was invalid.
It hadn’t even been binding, so they easily could have tried this line and tested the backlash, given how desperate they were to undo the whole thing. But no, and they didn’t even try another “informed” referendum. They weren’t willing to make the decisions necessary to apply the rule they were so convinced of.
Look, people behave like this all the time. Denial, wishful thinking, avoidance of responsibility, etc. It is very human. But these were supposed to be the competent people, the ones who actively sought this specific type of responsibility. They refused to operate the power apparatus they had the ability to wield, and appeared to feel truly powerless. Weird.
A huge part of this is our crazy refusal to consider the role of function in government and in most other things. The press in America and elsewhere still keeps lamenting that Johnson will deviate from EU labor standards, like this is a shocking, foolish decision. The entire point of leaving the EU was to deviate from the standards — the function of the EU was standardize such things. People who objected to Britain being in the EU were objecting to compliance with its rules. Maybe it is true that Brexit is a terribly stupid decision. But the only thing more stupid would be to leave the EU, lose the associated benefits of membership, and then decide not to deviate from its no longer mandatory regulations, thereby forfeiting the expected benefits of leaving. Of course, the degree to which the rules are changed, and how they are changed, is an important matter deserving of much discussion. But the idea of deviation should not seem even slightly surprising.
As the referendum hadn’t been binding, Brexit was neither required nor forbidden. A choice to go one way or the other carried consequences with it that made it far from an easy coin flip. But it was very much an issue that could only be handled by human minds, not an appeal to outside forces and rituals. Boris Johnson, whatever you think of him, likes to use his mind, and whatever you think of its quality, the bizarreness has finally stopped and the people were relieved to see it.
Now to impeachment. The whole issue is frustratingly vague on a number of points, but I have no doubt that it basically boils down to a requirement to use the human mind. So far, democrats have been acting utterly nutty in refusing to actually just freaking use the impeachment process. As unlike in the Brexit situation, they could not have been more eager for this, their sudden refusal to just wield their power to do it, and their seeming aversion to it, is a sign of just how pathological this aversion of law-makers to making concrete decisions has become. The republicans aren’t much better here, but their behavior is pretty boring — nothing comes close to the whole holding back the Articles stunt. Plus, they can’t stop insisting that impeachment is somehow imposed upon them, that Trump’s conduct crossed an invisible line and impeachment became mandatory. That is not how it works, but really, who cares? They don’t need that justification, because the choice lies with them. Yet, though it is mandatory, they aren’t ready to hand over the articles? Because the Senate won’t play fair, allegedly, but that only shows that the whole thing was never mandatory. The Senate gets to use its human minds as well, if it feels like it.
I’d really like to get into some of the arguments about alleged impeachment standards, but I’m not going to. I’m writing this in response to this editorial:
I’ll make the rest of this quick:
I’m sick of discussing Dershowitz because it is frustrating. He sounds convincing to a lot of people, and says a lot of things that need to be said, but then he simply reaches a conclusion of totally unwarranted strength, leading to huge backlash. Seeing him attacked as a liar for making reasonable points that angers some pretty reasonable people I know, and it seems impossible to explain how the bait and switch he does on the key point really invites attacks on his credibility.
Dershowitz continually raises good points about the nature of impeachment and the function of the process. However, he then claims that rules exist that do not exist. His recent arguments continually take the form of two major points. The first is demonstrating that Trump’s impeachment (or whatever charge he is defending against whatever person) is by no means mandatory, and may well be at odds with the intended purpose of the impeachment power, and may well be driven by political motivations and some pretty outrageous bad faith. I generally agree with these comments, but the issue is that they don’t actually make much of a difference, because I don’t think the votes are being made along the lines of nuanced analysis or political philosophy. Our government’s functions have been essentially overwritten for a long time, and no one cares about this perversion, though it is messing everything up for us.
Trying to make a stronger case, Dershowitz’s second point he makes is that the impeachment (or charge or conviction) is obviously illegal/invalid/unconstitutional/forbidden/unprecedented. However much he may wish this to be the case, and while impeachment may be unwise in this case, and is certainly driven by behavior that is both partisan and in bad faith, it just is not obviously off the table. The Senators need to judge his behavior in context and see if it warrants impeachment in their eyes, which is mostly going to be a matter of short-term political calculations at this point. That’s the whole of it.
As Ramish Ponnuru correctly argues in the article, referring to one of Dershowitz’s good but basically irrelevant (because this isn’t an actual good faith discussion, nor is there a high standard for conviction) points about multiple motives: “The answer can’t be that anything over 50 percent self-interested is impeachable and anything less than that is fine. It has to be that it’s up to members of Congress to use their best judgment without some made-up legal standard that gives that judgment spurious precision. It’s up to voters to make their best judgment, too, in judging the senators’ decision.”
Yes, Congress needs to make a call, and neither they nor Dershowitz can give them a legal standard to stand by. And the real functional check on all of this is the public’s judgment — which is mostly being assessed in those short-term political calculations. If the impeachment proceedings come across looking like bad faith buffoonery to the public, there’s a problem with convicting Trump, no matter what he did. On the other hand, if the republicans come across as playing dumb, that won’t work either. And the public will judge whether they think the whole thing was worth it based on Trump’s behavior, and vote accordingly in various elections. That is all.
I wrote this really quickly in response to an editorial, and I know it isn’t particularly snappy, but I wanted to get my thoughts on “paper.” I want to comment on Ponnuru’s last paragraph, but I’m worn out and will do that soon. I disagree with his interpretation, but the comments he mentions by Madison have interesting implications.
