Was Impeachment Designed to Fail? (Review Essay)Breaking News
tags: impeachment, Constitutional Law
The failed impeachment of Donald J. Trump has receded into distant memory, and with it any immediate hopes of meaningful executive-branch oversight. In the few short months since his acquittal, the president has been remarkably effective at withholding information from Congress, stifling whistleblowers, and shifting the Department of Justice’s focus away from the administration’s misdeeds. In the midst of an unprecedented pandemic, we confront an environment where many of the institutions we rely on to check presidential power don’t seem up to the task. Perhaps now, on the six-month anniversary of Trump’s acquittal, is a good time for a postmortem on impeachment design: Did the process work the way it was supposed to, and if not, how could we make it better?
A good place to start is two books that appeared in the aftermath of the Mueller investigation (that is, even before anyone knew about the administration’s efforts to delay foreign aid to Ukraine). An accessible overview written for a lay audience, Laurence Tribe and Joshua Matz’s To End a Presidency: The Power of Impeachment offers a broad account of impeachment’s core functions and procedures, as well as the political dynamics that determine how it operates in practice. Meanwhile, Frank Bowman III’s High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump provides a deeply researched historical account, beginning with impeachment’s origins in the British Parliament and ending with detailed case studies of every American impeachment and trial.
The portrait of impeachment that emerges is one of an 18th-century governance procedure running up against the reality of 21st-century politics. While Trump’s failed trial concluded with plenty of blame to go around, the process worked exactly as the Framers intended it to, following the design choices they encoded into the Constitution. So if your 2020 Impeachment Wall of Shame includes plaques for Mitch McConnell, Susan Collins, and John Bolton, save some room for Alexander Hamilton and James Madison as well.
Tribe and Matz show some sympathy for the Framers and acknowledge the daunting design challenge they confronted once they decided to create an executive branch with a custom-built presidential ejection seat.
The Framers knew they had created a presidency with considerable power: a single individual vested with the ability to command the army, veto legislation, and implement the laws enacted by Congress. They were fully aware how much was on the line if those powers were wielded by a president who was corrupt or in the pocket of a foreign government, and wanted to design an eviction process that didn’t involve an assassination, a coup, or a civil war.
At the same time, the Framers also believed that regularly scheduled elections should be the primary mechanism for checking presidential behavior. They were concerned about an impeachment process that would allow a president’s political enemies to undo an election outcome based on simple policy disagreements or partisan considerations. And they worried, of course, about the polarization, divisiveness, and chaos that might accompany an impeachment trial.
The result of these conflicting instincts is a Constitution that, by design, stacks the impeachment deck strongly in the president’s favor. And it’s those 233-year-old design choices—more than anything President Trump actually did, or the modern Republican Party’s moral failings, or the polarized dynamics of contemporary American politics—that dictated the Trump impeachment trial’s eventual outcome. Presidential impeachments are never a fair fight, and they weren’t meant to be.
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