Monday, February 03, 2020

The Least Bad (But Still Bad) Argument Offered Against Removing Trump

by Michael C. Dorf

Unless Donald Trump stands in the middle of Fifth Avenue and shoots someone in the next two days--and frankly, even if he does--we can expect his certain Senate "acquittal" on Wednesday. What does it portend? I don't think anyone can say with confidence.

The impeachment and non-removal of Bill Clinton did not harm his short-term popularity, but its long-term consequences were substantial. As a result of Clinton's conduct, Al Gore distanced himself from Clinton in the 2000 campaign; that distancing easily could account for the election being close enough for the Supreme Court to have given the presidency to George W. Bush. Then, in 2016, Hillary Clinton's association with Bill Clinton made her a highly flawed critic of Trump's misogyny. To be sure, one might think that the problem in both 2000 and 2016 was the reaction to Bill Clinton's underlying conduct rather than to the fact that Clinton was impeached-but-not-removed for that conduct. However, the stain of impeachment underscored the repugnance of the conduct.

Could the impeachment-but-non-removal of Trump have a similar impact in either the short or long term? Sure. In the short term, the 2020 Democratic candidate could run a campaign that emphasizes anti-corruption themes or tarring Trump with being soft on Russia as illustrated by his treatment of Ukraine. Or years down the road, should Ivanka or Donald Jr. run for office, the stain of impeachment could linger. But ultimately politics is like the weather; it's a chaotic system that cannot be predicted more than a few days in advance.

Accordingly, for now I'll focus on what just happened rather than on likely consequences. On Friday I tried to make sense of Alan Dershowitz's seeming claim that anything the president does is in the national interest and thus not impeachable. Today I want to consider what I consider the least bad argument that Trump's lawyers have offered against removal. Spoiler alert: Least bad was still bad.

In both their written and oral presentations, Trump's lawyers complained that a Senate vote to remove Trump would violate the will of the People by overturning the 2016 election and depriving voters of the option of choosing Trump in 2020. As stated, the argument was overinclusive and thus very bad. Removal of a president following a Senate impeachment trial always overturns the will of the People in the sense that it removes from office someone whom the People--via the Electoral College--have chosen. So taken at face value, the backward-looking aspect of Trump's lawyers' argument would mean that the Senate could never vote to remove an impeached president. That's plainly wrong.

A more limited version of the let-the-People-decide argument distinguishes between first and second term presidents. This argument focuses on 2020, not 2016. It is rooted in the claim that we have never before had a president stand trial in the Senate on impeachment charges while he was running for re-election. That's highly misleading as a factual matter. Andrew Johnson's impeachment trial commenced in March 1868, an election year in which Johnson would later seek the Democratic nomination. But let's consider the you-can't-impeach-a-president-running-for-reelection contention anyway. This forward-looking argument comes in a broad and narrow version.

The broad version seems to say that the Senate can never remove a first-term president, because the voters will have an opportunity to make the call themselves. That can't be right, however, because prior to the adoption of the 22nd Amendment--and certainly when the Impeachment Clauses were written--there were no term limits on the President. Yes, George Washington established the customary two-term limit early, but that was still after the framing and ratification of the Constitution. If we take seriously the idea that post-22nd Amendment, the Senate cannot remove a first-term president, then it follows that the framers thought the Senate cannot remove any president, because at the time of the framing every president could stand for re-election. Hence, the broad version of the forward-looking argument fares no better than the backward-looking argument. Taken seriously, either argument would render removal impossible.

There is, however, a narrower version of the forward-looking argument that would apply only when a presidential re-election campaign is underway. One might well think that the core purpose of a presidential impeachment is that a president who has committed an impeachable offense poses an immediate threat to the country, so that we cannot wait for the next presidential election to remove him. However, if the presidential election will occur shortly, that concern is mitigated.

The eve-of-election argument (as I'll call it) is not as bad as either the retrospective or broader prospective versions of the let-the-People-decide arguments. But it is unpersuasive nonetheless, for at least three reasons.

First, there is a line-drawing problem. When does the eve of election begin? Trump began holding re-election campaign rallies almost immediately after his inauguration. Even more conventional candidates start campaigning in earnest at least two years before the actual election. And even now, we are still over nine months away from Election Day and nearly a year away from Inauguration Day 2021. An unfit president can do an awful lot of awful damage in that time.

Second, there is a self-contradictory quality to the president's lawyers' argument. On one hand, they argue that "Treason, Bribery, or other high Crimes and Misdemeanors" has sufficiently definite content that it limits what can count as an impeachable offense (a point with which I agree, although I disagree about what those limits are); but on the other hand, all versions of let-the-People-decide would nullify that constitutional standard. Presidential campaigns are waged across a wide swath of issues. A generic Republican voter might vote for any Republican presidential candidate, including Trump, even though she thinks Trump has committed impeachable offenses, because she much prefers Republican policies. A Republican Senator who votes to remove Trump, by contrast, doesn't face the penalty of forgoing Republican policies, because the result would be to elevate Mike Pence to the presidency.

Indeed, one can understand Alexander Hamilton's argument for lodging the power to try impeachments in the Senate in just such terms. He wrote in Federalist 65:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
After articulating those sage and prophetic words, Hamilton went on to explain that the Senate was the best choice of an institution to try impeachments because, by contrast with the Supreme Court, it has enough electoral accountability to give it credibility with the People, but by contrast with the House, is "sufficiently dignified" and "sufficiently independent" to judge the merits, not just the politics of an impeachment case. Perhaps some element of that independence was eroded by the adoption of the 17th Amendment, but even so, six-year terms and statewide election, combined with the knowledge (following the 12th Amendment) that the VP comes from the same party, give the Senate a decided advantage over the People via a presidential election in judging the president's fitness to remain in office.

Third, the narrow version of the forward-looking let-the-People-decide argument runs into another element of the Constitution: judgment of conviction can result not just in removal but in disqualification to hold office. If we take Let-the-People-decide seriously, we might think that a president early in his first term can be removed so that he does no further damage before the next election but that the People should still have the opportunity to return him to office in the next election if they conclude that what he did wasn't so bad after all. Yet conviction allows the Senate not just to remove a president but to render him incapable of further service. We could imagine a Constitution that leaves the removal and future eligibility questions solely in the People's hands, but that is not the Constitution we have.

Thus, the least bad argument against removal is still a bad argument. Not that that fact will make a difference.