(Photo by Jose Moreno on Unsplash)

Nope, Tucker: There’s nothing “undemocratic” about impeachment

Lessig
Lessig
Oct 6 · 2 min read

In an essay admirable for its honesty about the utterly indefensible behavior of the President, Tucker Carlson and Neil Patel argue that the President’s wrongs notwithstanding, impeachment would be “undemocratic.”

It need not be.

The Constitution requires that

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States

That means while it’s possible for a conviction in the Senate to entail that the President cannot run for re-election, the language of the Clause doesn’t require it. Austin Sarat shows that history has in fact not required it. And Ned Foley argues that in Trump’s case — for reasons Carlson and Patel lustrate—a conviction should not include a disqualification to run again. Let the Senate declare the President guilty of “Bribery, or other high Crimes and Misdemeanors”—for which the evidence seems clear—and them remove him. Then let the People, if they want, to forgive him, by reelecting him.

But then why, the anti-impeachers insist, go through the trouble? Why spin the cycles of DC on a process that at most would remove the President for less than a year?

Well, first, one might ask, given the legislative graveyard called Mitch McConnel’s Senate, what else is Congress going to do?

But second, and more fundamentally, does principle really not count for anything? Or count for Presidents? We live in a nation that sends a woman to jail for 5 years because she tried to vote (tried, the vote was provisional) while on probation (not knowing she was not allowed). What was the practical gain from that conviction? “Deterrence,” you might say, if indeed you would choose (astonishingly) to defend that prosecution. But then shouldn’t we deter Presidents from openly and notoriously breaking the law (after they have tried like hell to hide that they were breaking the law)?

Or does that principle only apply to Democrats?

Lessig

Written by

Lessig

law professor, activist.

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