The impeachment investigation of President Donald Trump is now moving to the House Judiciary Committee. Soon, if the House votes to impeach Trump, the ball will be in the Senate’s court, where a conviction seems unlikely. America should thus consider Judiciary Committee Chair Jerrold Nadler’s warning about going forward: Impeachment, he’s on record as saying, requires “a broad consensus of the American public, a broad agreement of almost everybody, that this fellow has got to go because he’s a clear and present danger to our liberty and to our Constitution.” The problem is that a broad consensus is nowhere to be found; on the issue of impeaching Trump, the American public is split roughly down the middle.
A bigger problem for Nadler, though, is that he said this in 1998, when he was denouncing the Republicans’ impeachment of President Bill Clinton. Today, when it comes to Trump, he sings a different tune. “Impeachment is imperative,” Nadler declared in an interview less than two months ago, “not because he’s going to be removed from office—the Senate won’t do that—but because we have to vindicate the Constitution.”
In reversing his position, Nadler has plenty of company on both sides of the aisle. Reversals like this aren’t surprising, of course, and they’re not new in American history. But politicians from both parties are using impeachment as a political weapon more often today than ever before, and as Democrats and Republicans change places with each other in the White House, members of Congress likewise change their spots regarding impeachment. In the Constitution’s first century and a half, one presidential impeachment took place, with occasional talk, a bit of it serious, about impeaching others. In the past half century, America has almost impeached one president, impeached another, is about to impeach yet another, and has talked a lot about impeaching almost all the rest. This means that an awful lot of flip-flopping is going on.
One of the most important words in the Anglo-American legal system is reasonable. In criminal cases, guilt must be proved beyond a “reasonable” doubt, and in other legal fields, the standard for behavior is often what a “reasonable” person would do or think. Reasonableness is a purportedly objective standard, imposed by the law because it’s supposedly one on which Americans as a community would tend to agree. The requirement of a two-thirds supermajority in the Senate for any impeachment conviction suggests a sort of reasonableness standard for determining the requirements of an impeachable offense.
But in recent decades, America has seen an increase in impeachment efforts that go beyond mere grandstanding yet don’t rise to the level that a consensus of citizens or senators would agree involves an impeachable offense. Instead, these efforts seem to be driven largely by a visceral contempt for the target of the impeachment. The frantic search isn’t for reasoned analysis but, instead, for politically acceptable justification. (As one law professor I know likes to tell his students, “Your client doesn’t want justice. Your client wants to win!”) In his recent interview, Nadler spoke of using Judiciary Committee hearings to educate and inform the American public, which for him apparently translates into bringing the public around to his way of thinking about Trump. This approach has precedents, the most famous being that of President Andrew Johnson in 1868: For more than a year before he was actually impeached, the House of Representatives was actively engaged in trying to find some—any—legal basis for the impeachment it wanted so badly.
There are still-earlier precedents. Like the current generation and the 1860s, the 1790s was a tremendously partisan era. That first decade under the Constitution saw the birth of political parties, something the Founders neither foresaw nor wanted. Shaped by sharply divergent views in both domestic and foreign politics, and having no experience of peaceful transfer of power from one party to another, the members of the Federalist and Jeffersonian parties viewed each other as fundamentally un-American. Because the Federalists controlled Congress, the Jeffersonians adopted a highly restricted view of the national government’s power, including impeachment.
The Federalists, by contrast, adopted a theory of impeachment that was astoundingly broad. During the first federal impeachment, that of Senator William Blount in the late 1790s, they suggested that anyone, even private citizens who’d perhaps never held public office, could be impeached, tried, convicted, and thus barred from holding federal office in the future. Obviously they were thinking about going after Jeffersonians, for this argument came at the same moment that the Federalist-controlled government had adopted the 1798 Sedition Act. This hugely controversial law criminalized the publication of falsehoods, especially by newspaper publishers, that were critical of federal policy or Federalist officials. Several Jeffersonians, including a member of the House of Representatives, went to jail under this law.
Understandably, this extreme theory of impeachment, along with the Sedition Act, enraged and mobilized the Jeffersonians. During the Blount proceedings, they argued instead for highly restricted impeachment power. Given the backlash against the sweeping Federalist claims, the Jeffersonians easily managed to defeat the Federalists’ effort to convict Blount. The following year, with the public still angry at the Federalists, the Jeffersonians won control of both the presidency and Congress.
Then came the reversal. President Thomas Jefferson, who had decried the now-lapsed Sedition Act when he was out of power, began to denounce the Federalist press for publishing fake news—or, as he put it, for destroying the freedom of the press by “pushing its licentiousness & its lying to such a degree of prostitution as to deprive it of all credit.” The remedy, he believed, was straightforward: “[A] few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses.”
Simultaneously, the same Jeffersonians who had tried so hard to shackle impeachment a few years earlier now unleashed it, not once but twice: first against District Court Judge John Pickering, an aging Federalist who was not mentally well enough even to appear and defend himself; and then against Supreme Court Justice Samuel Chase for partisanship on the bench. In the first case, the Jeffersonians were successful, apparently through finding that Pickering’s mental-health issues amounted to a high crime and misdemeanor. In the second instance, they failed to convict Chase—and by a wide margin—despite his plain political intemperance.
While Chase’s conduct far exceeded norms of judicial detachment and objectivity, the Jeffersonians’ motives for impeaching him were equally partisan. “We want your offices,” one Jeffersonian senator proclaimed bluntly to Chase’s Federalist colleagues on the Court, “for the purpose of giving them to men who will fill them better.” Jeffersonian men, of course. (It’s a statement one can easily imagine having heard from Republicans during Clinton’s impeachment or hearing from Democrats today in reference to Trump.) Chase was to be impeachment’s first major victim, with the remaining Federalists in the judicial branch squarely in the crosshairs once he was eliminated. A number of Jeffersonians, more concerned about judicial independence than about pushing a partisan agenda, broke ranks with the extreme senators from their party and saved Chase by voting to acquit. Still, many Jeffersonians in the House and Senate had very conveniently switched their view on the expansiveness of impeachment power once they themselves controlled that power.
Nothing much changes about politics. Ultimately, as the leading political scientist Harold Lasswell once noted, it is about “who gets what, when, how.” Nor does the character of politicians change much. If they have power, they use it as much as they can. If they lack it, they try to restrict it, at least until they gain it back.
One of the greatest reversals of recent years is that of Senator Harry Reid, who in 2005, as the Democrat’s minority leader, made an impassioned plea to preserve the filibuster in the face of Republican threats to destroy it. “What they are attempting to do in this instance is really too bad,” said Reid, in a long speech emphasizing the importance of Senate tradition. “It will change this body forever … There will be a precedent set that will be here forever if the vote we take tomorrow prevails.” Eight years later, as the majority leader, Reid sharply disagreed. “The Senate is a living thing,” he declared, “and to survive it must change, as it has over the history of this great country … To remain relevant and effective as an institution, the Senate must evolve to meet the challenges of this modern era.” Later that day, the Democrats dramatically revised the Senate filibuster rules.
Nobody should be surprised, then, to see the same thing happen with regard to impeachment. Many of the most outspoken defenders of President Trump today were pushing hard for the president’s impeachment just a few years ago. The difference is that the president then was Barack Obama. Many of Obama’s actions seemed, to his critics, to be those of an imperial president who was out of control. Republicans openly went after more than one Obama official: In 2015, the Republican-controlled House Oversight Committee moved without success to impeach IRS Commissioner John Koskinen for, among other things, failing to comply with a House subpoena. The late Elijah Cummings, then the committee’s ranking Democrat, retorted that the “ridiculous resolution” would do nothing other than show the Republicans’ “obsession with diving into investigative rabbit holes that waste tens of millions of taxpayer dollars while having absolutely no positive impact on a single American.” What a difference four years can make.
The same pattern is visible in the Clinton and Trump proceedings, as Nadler’s comments reveal. “The allegations are grave,” Republican Senator Mitch McConnell declared in 1998, “the investigation is legitimate, and ascertaining the truth, the whole truth and nothing but the unqualified, un-evasive truth is absolutely critical.” But a few weeks ago, McConnell opined that “House Democrats have been indulging their impeachment obsession for nearly three years now: a never-ending impeachment parade in search of a rationale.”
Quite clearly, then, impeachment has once again been politicized—one might almost say weaponized—during the past two or three decades. But the more troubling question is whether Democrats and Republicans in this hyper-partisan age are simply more willing than their predecessors to use impeachment as a political weapon, or whether they are, in fact, living in two different worlds that make their narratives so different that they genuinely can’t understand each other, at least regarding what constitutes a threat to the American system of government. In 1998, Republicans in the House impeached Clinton, knowing that they almost certainly wouldn’t get a conviction in the Senate. Why do such a thing? Was it truly a matter of principle, as they maintained, or merely a strategy to energize their base for the upcoming elections? At any rate, their stated reason was that the nation’s top law-enforcement officer, himself a lawyer, had intentionally lied under oath, and for that reason he had to go. The Democratic narrative was that this was about nothing more than a private sexual escapade—a consensual tryst—that had no effect on the public interest.
Fast-forward to 2019. The Democrats argue that if Trump offered a quid pro quo to Ukranian President Volodymyr Zelensky to investigate the son of his potential 2020 presidential opponent, it represents an existential threat to the integrity of the American electoral process. They suggest further that Trump’s refusal to cooperate with their investigation may in itself be an impeachable offense, a menace to the very notion of constitutional government. The Republican position is that . . . well, who knows exactly what their position is, but it certainly differs from the Democrats’. Either no quid pro quo took place, or Trump didn’t intend one, or, if he did, that he was acting squarely within his foreign-policy prerogatives, or it’s in America’s interests to make sure that the country is not funding a corrupt regime and any personal benefit to Trump is purely incidental. “Does not the U.S. have a right to put conditions on its foreign aid and to seek guarantees that our money will not be used as graft to grifters?” Pat Buchanan recently asked in a column he wrote for Chronicles, a conservative magazine published by the Rockford Institute. The Republican administration further argues that the principle of separation of powers means that the president need not cooperate with a coequal branch in its attempts to remove him.
The point is that these radically differing narratives seem to be about more than just politics. They seem to reflect the new reality of two Americas, so far apart from one another in worldview that they can’t even understand each other. This will result in major fallout and help turn impeachment into just another disruptive and partisan weapon. It also brings to mind Abraham Lincoln’s dire warning about a house divided.
On one point, though, there’s a consensus. In both the Clinton and Trump episodes, the opposition party has viewed the president, on a personal level, as a morally contemptible human being who doesn’t deserve to hold office. That in itself is probably not an impeachable offense. The big question is how far such views will drive our politicians to find something—anything—they think they can use to justify impeachment and removal in the future, and what collateral damage this will inflict on our constitutional system.