Several of the mailing lists that I’m publicize the prospect of impeaching the President (and as often as not, the Vice President, too) for “high crimes and misdemeanors”. I’ve gotten into some pretty sharply-worded debates over the subject, because I happen to think that impeachment is the wrong solution, at least now, for two reasons: policy-wise and politics-wise. Rather than bore you with my take, however, I’m going to distill Josh Marshall’s take that I saw in one of his Hill columns.
It helps to remember that impeachment, no matter what kind of constitutional law construction you use, is inherently a political act. We saw this in its rawest, most primal form during the Clinton impeachment. However, in the other two ocassions in which impeachment has been seriously discussed or brought to bear (1867, Andrew Johnson; 1973-74, Richard Nixon), the situation was clearly political as well.
In Johnson’s case, the Radical Republican Congress wished to exert its primacy over the President; not trusting Johnson to carry out Reconstruction as they saw fit, they passed the Tenure of Office Act (I believe over his veto), which limited his power to fire or otherwise remove members of the Cabinet, among others. They sparred over this, and when Johnson tried firing Secretary of War Edwin M. Stanton, the Congress acted to remove Johnson from office. After much spirited debate, the motion failed by one vote, and Johnson held on to the Presidency.
In Nixon’s case, the feeling was that he’d lost the power to act legitimately and the confidence of both the judicial and legislative branches of government that he would act in a lawful manner. The House Judiciary Committee therefore moved to bring articles of impeachment up for debate. Nixon resigned before anything came to pass impeachment-wise; otherwise, the odds were better than even that he would have been removed from office.
The key to remembering all three impeachment cases (Johnson, Nixon, Clinton) is that in all three cases, both the judicial and legislative branches acted exhaustively to bring the three Presidents before the bar of justice, and impeachment was the last resort used to force all three men to comply with the other branches.
That hasn’t been the case with George W. Bush. Whether because of politics or policy ineptitude, the Congress has failed to exercise any degree of oversight, and the court system has not been brought to bear. In order for impeachment to be a serious policy option, Congress must exercise its oversight powers over the President. Since the Republicans will not do this (or aren’t able to do this), this means that Democrats have to exercise these powers. Given the dynamics in both chambers, the only way they will be able to do this is if they gain the majority in either or both houses of Congress this fall.
The political case is much more simple. Over the past three electoral cycles (2000, 2002, 2004) we have simply lost. Especially in 2004, when the base was as fired up as I’ve ever seen it, and we still got whipped. Political organizing is hard. Convincing other Americans of that which we know to be a simple truth (that the President is an incompetent fool, and a criminal, to boot) is hard. Calling for impeachment, however, is easy. It’s a clarion call for moral clarity, and it allows us to ascend the moral soapbox. I’d rather we spend less time concentrating on something that’s unlikely to pass, and spend more time convincing our fellow voters of something we know (and more importantly, objective reality) to be true: that this President, as Sean Wilentz noted in a recent essay, is destined to be remembered as “the worst President in history.”