What is impeachment for?

Before Democrats can talk responsibly about impeaching Trump, we need to state some standards we’d be willing to apply to a Democratic president.


One of the more ridiculous quotes of the Obama era came from Republican Congressman Kerry Bentivolio of Michigan. It was the summer after Obama’s re-election and Bentivolio’s constituents were wondering about impeachment, like you do when you think the wrong guy won the election.

The Congressman responded that “it would be a dream come true” to impeach Obama, and claimed he had challenged lawyers to “tell me how I can impeach the President of the United States.” But the lawyers uncovered a pesky little problem: “Until we have evidence, you’re going to become a laughing stock if you’ve submitted the bill to impeach the president.”

Damn. You need evidence that he did something wrong. There’s always a catch somewhere.

The cheapening of impeachment. The mood was very different in 1973, when the House Judiciary Committee began investigating impeachment against President Nixon. Up to that point, there had been only one serious presidential impeachment case in American history, against Andrew Johnson in 1868. No one had come out of that affair looking good, and it made both sides cautious a century later. [1]

So the Nixon proceedings had an air of solemnity: History was watching, and whatever you did now would be what you were remembered for. Democrats, who held the majority in both houses in spite of Nixon’s 1972 landslide, bent over backwards to give Nixon at least the appearance of a fair hearing; Republicans likewise worked hard to create the impression that they were taking their duties seriously. Ultimately, it was three Republicans — Barry Goldwater, Hugh Scott, and John Rhodes — who went to the White House to tell Nixon it was time to resign.

A lot of Democrats had hated Nixon for a long time, but nobody crowed about “a dream come true”. Impeachment wasn’t something you started talking about as soon as your side lost. It was a constitutional last resort, and you didn’t break that glass unless it was really an emergency.

Impeachment still required a high bar in 1987, when Congress began investigating the Iran-Contra scandal. Iran-Contra was a big deal: A dozen major figures in the Reagan administration were indicted, including the Secretary of Defense and the National Security Adviser. [2] President Reagan apologized to the American people on national television: “A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that’s true, but the facts and the evidence tell me it is not.” Congress concluded that Reagan either knew about the wrong-doing or should have known. But he was not impeached.

It was Bill Clinton’s impeachment in 1998-1999 that changed all the rules. For Nixon, it was thought to be important that the special prosecutor, Leon Jaworski, be a political independent who had voted for Nixon; that made it clear the President wasn’t being railroaded. But Clinton’s first prosecutor was a Republican (Robert Fiske), who was replaced mid-investigation by a more partisan Republican (Ken Starr). Starr published a report emphasizing the most salacious aspects of the case in lurid language, and frequently leaked sensational details to the press.

Throughout the process, the votes on impeachment were very close to party-line — which meant that the ultimate result was predetermined: The Republican-controlled House impeached Clinton by majority vote, but conviction in the Senate required a 2/3rds majority, which couldn’t happen without convincing a significant number of Democrats. Clinton served out his full two terms.

George W. Bush could have been impeached over violations of the Convention Against Torture or for deceptions in the process leading to the Iraq War. A resolution was introduced in the House, but it died in committee. The full House never voted on it.

Republicans often talked about impeaching President Obama, but their efforts never passed the laugh test: Like Bentivolio, they failed to come up with a plausible charge, much less assemble evidence to support it.

Standards. It’s easy to be a partisan hypocrite about impeachment. If the question is just “Do I want to get rid of this guy?”, then I’ll want to impeach presidents of the other party and defend presidents of my own. And after the plainly partisan nature of the Clinton impeachment, it’s tempting for Democrats to return tit for tat.

But cheap impeachments are bad for democracy. An election should mean something; it should make a decision that is not easily reversed. On the other hand, the Founders put impeachment into the Constitution for a reason. If Democrats are going to start another one any time soon, we owe it to the Republic to form a clear idea of what impeachment is for, and to state a non-partisan standard we’d be willing to stand by the next time a president from our side is in office.

The standards for impeachment are listed in the Constitution, but the statement is terse:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Treason and bribery we all sort of understand, but it’s the “other high Crimes and Misdemeanors” that has been so maddeningly vague over the years.

A prime example is obstruction of justice — what Trump may have done when he fired Jim Comey. Obstruction was an impeachable offense when Nixon did it, so Republicans claimed it as an impeachable offense for Clinton. Democrats thought you needed more context; not all obstructions should count the same: Clinton was accused of inducing Monica Lewinsky to lie about their affair; Nixon was accused of doing a long list of things — conspiring with others, concocting cover stories, destroying evidence, asking the CIA to interfere with the FBI — to block the investigation of a burglary intended to help his re-election campaign. It didn’t seem fair to lump the two in the same category and proceed from there.

Now that it’s a Republican in the dock, expect the parties to switch places: Democrats will insist that obstruction-as-impeachable-offense is now well established; Republicans will want to say, “Wait a minute.”

If we’re not all just going to run to our respective partisan banners, we need think this through from the beginning.

What is impeachment for? The Founders knew that occasionally the voters would screw up. Bad presidents were inevitable, which is why John Adams talked about forming “a government of laws, and not of men“. The Constitutional system created multiple centers of power that could check and balance each other. The hope was that the country would be strong enough to ride out a bad presidency.

So the ordinary way to get rid of a bad president is to wait for his term to expire and elect somebody else. Impeachment is only for cases where that solution just isn’t adequate.

That’s why treason and bribery are specifically mentioned. If a president is just bad at his job, you can usually live with that until the next election. (After all, the country survived eight years of George W. Bush.) But if the power of the office is being controlled by someone else — by a hostile foreign power (treason) or a wealthy special interest (bribery) — then we really can’t wait that long. (That’s even more true today than in the 1700s, because of the immediacy of nuclear weapons.) So I interpret “other high crimes and misdemeanors” as “other offenses too urgent to put off until the next election”.

The most obvious offense that you can’t put off until the next election is anything that subverts the next election. So if a president is using his or her power to alter the political system — like burglarizing the other party’s files or making deals with foreign powers to hack their computer systems — that also should be impeachable. [3] Other things that could be impeachable in the same way are shutting down hostile newspapers, or preventing legal voters from casting their ballots.

Since the separation of powers is what we’re counting on to keep a bad president in line, anything that usurps the power of the other branches has to be impeachable, unless the breach can be repaired some less drastic way. [4]

Along the same lines, the impeachment process itself has to be protected. So obstruction of justice needs to be an impeachable offense, if the obstructed investigation concerns an impeachable offense. [5]

Finally, there are offenses that have no other enforcement mechanism. For example, violations of the Emoluments Clause, which there is a good case Trump is guilty of. Bush-administration ethics lawyer Richard Painter wrote: “The only remedy for a serious violation of the Emoluments Clause is impeachment.” [6]

Application to Trump. Under these standards, it seems obvious to me that the House Judiciary Committee should be investigating impeachment, because there are viable accusations of impeachable offenses: most obviously the emoluments, but possibly more directly dangerous things. Any collusion with Russia to hack the Democrats would be impeachable, as well as obstruction of justice if it was intended to shelter allies who did collude. (Whether Trump was involved directly in the collusion wouldn’t matter; if he later suspected what his associates did and tried to protect them, that would be impeachable.)

At this point, whether I would support an impeachment vote in the House or conviction by the Senate would depend on what those investigations turned up. But there are definitely things to investigate.


[1] Johnson had been the slave-owning Democrat Lincoln put on his ticket in the name of national unity. After the assassination, he was an outsider dealing with Lincoln’s overwhelmingly Republican Congress.

If you’ve ever wondered why vice presidents are such yes-men, Johnson’s example explains why. When the VP has very different views than the president, it’s practically an invitation to assassins. John Wilkes Booth really did succeed in changing the direction of the country.

[2] Both were pardoned by President Bush before they served jail time.

[3] By contrast, Clinton’s extra-marital affair was just embarrassing, not a threat to the Republic. He finished his term, and there was a peaceful transfer of power to the other party after the next election.

[4] Republicans claimed that Obama’s executive orders on immigration usurped the power of Congress. So they sued, won their case, and Obama obeyed the judgment of the courts. But if Obama had instead said, “Screw the judges, I’m going to do what I want.”, then impeachment would have been Congress’ only recourse.

[5] That leaves out the obstruction charge against Clinton, but creates an interesting test scenario: What if the reason Trump wanted to stop Comey’s investigation wasn’t that he himself had done anything wrong, but to prevent Comey from catching his son-in-law Jared Kushner, who was guilty of some financial chicanery? I’m leaning towards the idea that Trump should be prosecuted for that after leaving office, but not impeached.

[6] Naturally, if the money the President receives from a foreign government is in return for some favor, then it’s already impeachable as a bribe.

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Comments

  • James Lynn  On May 22, 2017 at 9:51 am

    “What if the reason Trump wanted to stop Comey’s investigation wasn’t that he himself had done anything wrong, but to prevent Comey from catching his son-in-law Jared Kushner, who was guilty of some financial chicanery? I’m leaning towards the idea that Trump should be prosecuted for that after leaving office, but not impeached.”

    I think you’re trying to split hairs too fine here. If you’re going to make obstruction of the investigation of an impeachable offence impeachable, then it needs to be impeachable whatever the motive of the obstructor. If you don’t, then you can (successfully) obstruct an investigation into what would have been an impeachable offence, while claiming that you were just afraid that the investigation would turn up a minor crime by someone else, and escape impeachment.

    So once (if) the investigation on links between Trump’s campaign and Russia concluded that the only issue was potential Kushner financial chicanery, then it would be okay for Trump to obstruct the investigation. But until then, it has to be impeachable, if you want to use impeachment to protect the impeachment process.

    • Guest  On May 22, 2017 at 4:49 pm

      I agree with you James that something felt off with that passage (maybe it was just Doug trying to throw Trump a bone in the spirit of objectivity?) and I prefer a strong stance on obstruction of justice, but motive can be important here. If an investigation itself has been corrupted so as to be railroading a party or parties that are genuinely innocent, then I can look the other way on an obstruction of justice charge. In that case it’s more like obstructing injustice. Doug’s hypothetical of Trump using his office to cover for the unethical/illegal financial benefit of his family members doesn’t rise to that bar.

      And Doug, by framing Bush II as simply being bad at his job I think you’re letting him off far too easily. Short of outright genocide, it’s hard to think of a high crime higher than willfully lying and misleading a country into a war of aggression. To quote the judgement at Nuremberg, “To initiate a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” He should have been impeached.

      • James Lynn  On May 22, 2017 at 6:12 pm

        It occurred to me after I’d posted that there was a better way of phrasing my point, so thank you for giving me the opportunity.

        Suppose a president has committed an impeachable offence, that there is an investigation into the offence, and that the president attempts to obstruct the investigation. There are a number of possible outcomes, of which two are relevant: the investigation succeeds in producing compelling evidence of the original offence, despite the obstruction; or it doesn’t produce evidence of the original offence, but does produce evidence of the obstruction of justice.

        In the first case, you don’t need to impeach on the obstruction of justice, since you’ve proved the substantial offence. So if you are going to allow impeachment for obstruction of justice, to protect the impeachment process itself, as Doug suggests, it needs to cover cases of the second type, where all you can prove is the attempt to obstruct an investigation into a potentially impeachable offence.

        If you then make the prosecution also prove a motive beyond that, such as that the obstruction wasn’t just to protect an underling, you’re just making obstructing justice look more attractive to presidents who should be impeached.

        Obviously, if you’re a congressman trying the impeachment, or a member of the American public watching them, you can decide either that no obstruction of justice was intended, or that the investigation was clearly not going to provide evidence of an impeachable offence, and acquit. So in Clinton’s case, the investigation was clearly not going to find anything impeachable (in your terms he was obstructing injustice) and in Trump’s case, it seems plausible to me that he has so little understanding of the roles of the President and the FBI that he wasn’t actually trying to obstruct justice.

    • weeklysift  On May 23, 2017 at 6:36 am

      I more or less agree. When an investigation is obstructed, Congress should put a broad interpretation on what an unobstructed investigation might have uncovered. I was imagining a scenario where it was clear that Jared’s finagling was the core offense.

      Also, I didn’t say to let it go. But the prosecution could wait until Trump left office.

  • Xan  On May 22, 2017 at 10:25 am

    “The Founders knew that occasionally the voters would screw up”

    Wrong– the Founders knew that occasionally the president would screw up.

  • Geoff T  On May 22, 2017 at 5:43 pm

    Your statement in your column today said:
    [4] Republicans claimed that Obama’s executive orders on immigration usurped the power of Congress.
    So they sued, won their case, and Obama obeyed the judgment of the courts.
    But if Obama had instead said, “Screw the judges, I’m going to do what I want.”,
    then impeachment would have been Congress’ only recourse.

    Then one would assume that Andrew Jackson should have been impeached for his defiance of the Supreme Court
    in Worcester v. Georgia.

    That (of course) did not happen which just goes to prove how political an act impeachment is without regard to the legality of the actions of the President.

    • weeklysift  On May 23, 2017 at 6:44 am

      I just looked up Worcester v Georgia, and it’s a more ambiguous decision than I remembered.

      Wikipedia says, “The Court did not ask federal marshals to carry out the decision, as had become standard. Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce.” That makes it look more like Chief Justice Marshall backed down in the face of anticipated defiance, not that Jackson defied the Court.

      But your general point makes sense: If the president does something impeachable that is politically popular, he probably won’t be impeached, even if he should be. This is one of the ways the Muslim Ban could play out.

    • Missy  On June 9, 2017 at 9:24 pm

      That insight solves the prbleom. Thanks!

  • Jeff Rosenberg  On May 23, 2017 at 6:39 am

    While the number of comments may not be massive, they are thoughtful and directly relevant to what is written. So, I’d like to thank the commenters. They have truly added to the exploration of this topic.

  • jh  On May 24, 2017 at 12:09 pm

    I do wonder when the onus will be on conservatives/republicans to behave like adults rather than constantly requiring that Democrats behave better than their counterparts. Frankly – I suspect that you, like many others, have given up on the idea that republicans should behave well or that republican voters could vote on facts and evidence rather than racial hatred, partisanship, and fearmongering.

    I’ve given up as well. That’s why I’m never surprised at what nonsense masquerades as “right wing news”. However, I’m not for impeachment. Better a corrupt and incompetent president over a ideological terror such as Pence. I have no desire for more republicans playing cowboys and imposing their simplistic christian conservative nonsense on the world.

  • Dale Moses  On May 26, 2017 at 10:00 pm

    If we keep playing by rules they do not abide by we will lose time and time again. We have been doing it that way since the 70s and it has gotten us only more Republican lawbreaking and norm breaking.

    The only way to enforce proper behavior is to deviate.

  • Tish  On June 9, 2017 at 9:40 pm

    Cool! That’s a clever way of lonikog at it!

  • pokemon gold hack for android  On June 19, 2017 at 12:51 pm

    If time is money you’ve made me a wealthier woman.

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