By Noah Feldman / Bloomberg Opinion
The decision by the House Republican leadership to open an impeachment inquiry into Joe Biden — without any evidence of wrongdoing — marks a low point in the mis-deployment of the Constitution’s mechanism for removing a sitting president. Bad as it is, however, the inquiry itself won’t put the nail in the coffin of the impeachment process. Impeachment will only be dead as a useful constitutional tool if House Republicans actually vote to impeach Biden without any credible proof of high crimes and misdemeanors.
The reason the framers of the Constitution gave Congress the power to impeach the president and the Senate the power to try the impeachment was that they feared the dangers of the sitting president manipulating the electoral process to stay in office. As William Richardson Davie of North Carolina put it at the constitutional convention in 1787, if the president couldn’t be impeached, “he will spare no efforts or means whatever to get himself reelected.” Impeachment, Davie concluded, was therefore “an essential security for the good behavior of the Executive.”
In practice, putting elected politicians in charge of removing an elected politician was always going to be political.
Yet the framers, who didn’t care much for political parties, still thought that impeachment could be an effective remedy against a president who tried to corrupt the democratic process. That’s because they believed the republic rested on a bedrock of political virtue; in essence, the basic goodwill of citizens who care about the common good and want the Constitution to be upheld.
That idea of virtue made the framers think that impeachment could work even in the face of potential partisanship. Similarly, they didn’t expect that impeachment would be used as a purely political tool to harass or embarrass a sitting president.
They were right, at least for most of U.S. history. Andrew Johnson, who was impeached and narrowly survived conviction, probably deserved to be impeached for systematically thwarting the will of Congress with respect to Reconstruction. He also probably deserved to be acquitted on the specific charges on which he was impeached, which had to do with his power to remove cabinet officials. The threat of an impeachment that would almost surely have led to conviction was sufficient to get Richard Nixon to resign.
Bill Clinton may or may not have deserved to be impeached and then acquitted by the Senate for lying under oath to a grand jury during the Monica Lewinsky inquiry, but in retrospect, it’s hard to see the whole episode as purely political. Some principle was surely at stake in the aftermath of the revelation that the president had an affair with a 22-year-old White House intern, then lied about it.
Both Trump impeachments were justified: the first because he was trying to pressure Volodymyr Zelensky to investigate Biden, thus interfering with the upcoming election; the second because of his efforts, culminating on Jan. 6, 2021, to stay in office after losing the election. Both were cases of a president corruptly trying to stay in office, as the framers feared. Although it’s very troubling that Senate Republicans voted along party lines not to convict Trump, at least the impeachments signaled to history that the people’s House condemned his conduct.
If Biden is impeached without indication that he’s done anything wrong, it will demonstrate that Republicans have decided to use impeachment as a tit-for-tat weapon, unmoored from its original purpose of protecting the democratic process. Virtue won’t have anything to do with it. Impeachment will have become a purely partisan game.
That ultimate partisanization of impeachment would make it all but impossible for future Congresses to express genuine condemnation of a sitting president’s corrupt conduct. The entire impeachment process would likely turn into just another quotidian tool of gaming the system for political advantage. If any president can be impeached without real reason, it is likely that every president will be impeached so long as the opposing party controls the House.
The loss of impeachment as a meaningful mechanism for restraining a sitting president would weaken our constitutional system. On its own, though, it wouldn’t sound the death knell of the Republic. If the framers had left impeachment out of the Constitution in the first place, the United States would doubtless still be around today, in much the same form that it exists.
Yet transforming the Constitution’s break-glass emergency solution for removing a corrupt president into just another tactic of political aggression would represent a serious loss; the loss of the kind of political virtue that enables Americans to agree that some conduct by a president is generally beyond the pale. In that world, a future Richard Nixon would tough it out, gambling that members of his own party wouldn’t vote to remove him from office even if he were impeached by the House. We would be a step closer to becoming a banana republic, where corruption and coups are everyday occurrences, not outlying outrages condemned by we, the people.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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