The Costs of Impeachment Outweigh the Benefits

Nancy Pelosi is right

Democrats are agonizing over impeachment. It’s causing deep divisions within the party and fostering animus for Speaker of the House Nancy Pelosi. But President Donald Trump’s unethical, damaging, and possibly illegal behavior make the question unavoidable.

Pursuing and not pursuing impeachment both have serious ramifications, making it essential to examine potential costs and benefits. Ultimately, the risks outweigh the likely rewards, and Democrats would be wise to continue on their present course, holding hearings and investigating Trump administration malfeasance without trying to impeach.

Impeachment is a Political Process

Under the Constitution, the method for holding accountable a president who has engaged in criminal or otherwise disqualifying behavior is impeachment. The process takes place in Congress, beginning in the House, which decides on impeachment — the equivalent of an indictment—after which there’s a trial in the Senate. This makes the process inherently and unmistakably political. As then-Congressman Gerald Ford put it in 1970, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

The political nature of impeachment has been affirmed by the Supreme Court. In 1993, Walter Nixon, the former Chief Judge for a Federal District Court in Mississippi (no relation to Richard), sought to have the courts overturn his impeachment and removal. But Chief Justice William Rehnquist’s majority opinion held that the results of an impeachment trial in the U.S. Senate “involved a political question that could not be resolved by the courts.”

This shows that when Nancy Pelosi is accused of “playing politics” with impeachment, the charges are misguided. If impeachment is inherently political, the primary considerations are political ones: questions of public support, support in the Democratic House caucus and the House more generally, support for conviction in a Senate trial, and the political ramifications of proceeding with impeachment, including jeopardizing the upcoming presidential election.

Pelosi’s pro-impeachment critics argue that the House is shirking its “constitutional duty.” But there’s no constitutional requirement to take action. In criminal settings, prosecutors can decline to indict for a variety of reasons, including concerns that proceeding would damage the case and aid the accused. With that in mind, Pelosi and House leadership must use their discretion.

Cost-Benefit Analyses of Impeachment

The initiation of an impeachment inquiry in the House proceeds in one of two ways: either the full House votes to have the Judiciary Committee determine whether or not the president’s actions can be categorized as “impeachable offenses” or the Judiciary Committee launches the impeachment inquiry themselves, without the full vote. Both options are wrought with concerns.

If the Judiciary Committee decides to pursue an inquiry on its own, it could lead to a lengthy legal battle, as it isn’t clear this method is widely recognized as legitimate. It’s only been done a few times before — for example, with a Federal District Court judge in 1989 — meaning there’s little precedent for bypassing the standard procedure of a referral from the full House. Proceeding this way might jeopardize the outcome and would almost certainly elongate the process.

Holding a full House vote first avoids this problem, but it would require every Democratic representative to go on the record. That includes around 40 Democrats who recently captured seats from Republicans, many in historically red districts. We’re going to ask House members whose campaigns required incredible balancing acts just to get in to now take the most politically charged position against the president that it is possible to take? Again, this consideration needs to be weighed.

Most successful swing district candidates supported popular items on the Democrats’ agenda while espousing rhetoric that didn’t alienate Independent and Republican voters. A July 2019 Washington Post-ABC News poll found that 59 percent of Independents and 87 percent of Republicans oppose impeachment. Forcing Representatives to vote on impeachment when a majority of their constituents are against it is a recipe for losing the House in 2020.

If the House decides to pursue impeachment, via either method, the Judiciary Committee will hold hearings and then decide whether to send articles of impeachment to the full House.

The benefits: the public learns more of Trump’s crimes and unethical actions. If the House impeaches, it sets a precedent that these actions are out of bounds, and permanently marks Trump’s legacy. Airing Trump’s misbehavior for all to see would ideally lead the Senate to remove him from office before the end of his term, and if not, could at least damage his reelection prospects.

However, there’s little reason to believe House hearings will force a massive shift in public consciousness. For one, we’re already aware of the kind of person Trump is, and some of his support is because of his unethical behavior, not in spite of it.

Second, the Mueller Report did little, if anything, to move the needle on impeachment. Despite details plastered across the media, in conjunction with countless news stories over the last two years, there’s been little-to-no reaction from Trump-supporting portions of the public. If anything, the president has consolidated support within his party.

Third, while the Mueller hearings effectively reiterated the main points of the report, it’s unclear whether they had any effect on public or congressional support for impeachment. Many viewers retreated to partisan corners and dug in their heels.

Removal from office requires a two-thirds vote in the Senate, which would require all 45 Democrats, the two Independents who caucus with them, and 20 Republicans. I don’t think it’s controversial to say there’s a 0 percent chance that more than a third of Senate Republicans will vote to remove Donald Trump from office — and that’s assuming Majority Leader Mitch McConnell allows a trial at all.

So, Democrats are left weighing the costs of having vulnerable House members in shaky districts taking a controversial vote on impeachment in order to make a statement, risking their own seats and their party’s capacity to hang onto the House in 2020. It’s no wonder House Democrats are themselves stymying this process; just this week, a House leadership aide indicated that one of the main reasons impeachment has been shelved is because the votes, even from the Democratic aisle, are just not there. These representatives judge impeachment to be a foolish play.

I haven’t even brought up impeachment’s potential effects on the presidential election. For Democrats, nothing matters more than ousting Trump in 2020. If impeachment can’t get you that result—worse, if it actively harms your ability to secure that result, then it needs to be discarded.

The Democratic Party’s number one goal is to begin the next decade in control of the machinery of the federal government. This is stating the obvious, but their agenda can’t get off the ground apart from that. If House Democrats pursue impeachment and it does not go flawlessly, Trump will be gifted, while it’s happening, with innumerable ways to claim he’s the victim of a “witch hunt” and, when it likely fails, with the opportunity to claim he’s been “totally exonerated.”

The Best Course is Our Current One

What’s most confounding about the intense calls to begin an impeachment inquiry is that what the House is currently doing, conducting multiple inquiries within the various committees they control, has the same effect as starting an impeachment inquiry yet without the political blowback. These hearings, many of which involve ongoing subpoena fights and court cases for documents and testimonies, grant us oversight without jeopardizing any House seat or gifting Trump a narrative.

The only real difference is that the current hearings perhaps lack the power an impeachment hearing would be granted. The House’s position in court is strongest during an impeachment inquiry. However, the courts have consistently sided with the Democrat-led House Committees in their efforts to have their subpoenas and requests for documents honored. So staying the course is currently the wiser option.

The Watergate hearings, held up as a celebrated example of how congressional inquiries can change public opinion, in fact came prior to the formal impeachment inquiry. So what these hearings show, then, is that impeachment inquiries aren’t necessary to change minds; we can do so with House committee hearings which leave Democrats far less vulnerable.

All Roads Lead to 2020

The reality is that Donald Trump will not be forced out of office. Doing so would require significant Republican buy-in, and they are manifestly not up for that task.

Republicans have stood by the president as he has steamrolled our institutional norms, padded his pockets with taxpayer dollars, deflected blame away from white nationalists, launched racist tirades at their congressional colleagues, and sullied the presidency in other innumerable ways. “Stood by him” is actually too weak to describe the level of support they’ve given him; they’ve actively shifted their own thinking and behavior on many of these matters just to accommodate him. These are the elected officials the pro-impeachment side believe will rally to their side?

Pursuing impeachment imperils the House, and greatly complicates our ability to flip the Senate and the presidency in 2020. If successful, it would oust the president from office—but we have a significantly greater chance to achieve that same result via a more traditional path: beating Trump at the ballot. That’s where our focus should be.

Avi Bueno is a writer whose work has appeared in Arc Digital. He was formerly Director of Policy Advocacy for The Loyal Opposition.