Getting impeachment wrong

I’m a big fan of Yuval Levin, but I disagree with some of what writes in this post on “the Senate’s burden” regarding impeachment. Yuval quotes with approval this passage from Greg Weiner:

Impeachment is a matter of prudence whose frame of reference should be civic health, not merely presidential conduct… It is not merely whether Trump is guilty but also whether the nation will be better off—now and in the future—if he is put on trial and removed.

I think almost every word of this is wrong. Elections are a matter of prudence whose reference should include civic health and whether the nation will be better off now and in the future if an incumbent is “removed.”

Impeachment is a quasi-judicial process in which, under the Constitution, the question is whether the president committed “treason, bribery, or other high crimes and misdemeanors.” Arguably, the effect of a president’s misconduct on civic health can be one factor in determining whether the misconduct alleged rises to the level of a high crime/misdemeanor.

However, it’s easy to imagine all sorts of misconduct that hurts civic health but that, under no stretch of the imagination, is a high crime/misdemeanor. The remedy for such conduct is the next election, not impeachment and removal.

Yuval contends that “the judgment confronting senators” in the impeachment proceeding “is ultimately a political judgment, in the highest sense.” In my view, it is a political judgment only the lowest sense. Politics plainly are in play. Otherwise, members of the two parties would not have voted with near unanimity — one for impeachment, one against — in the last two impeachments.

But the judgment is not political in the sense that Weiner seems to mean, or shouldn’t be. Impeachment is not how we purge the political system of unhealthy tendencies.

Yuval quotes from Alexander Hamilton’s Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

This, though, is only one Framer’s view of impeachment. It doesn’t override the language in the Constitution, or the fact that the Framers rejected language that would have called for impeachment in cases of “corruption” or “maladministration.”

As I said, “the injuries done. . .to the society itself” can be a factor in determining whether the president’s misconduct satisfies what the Constitution expressly states is the standard for impeachment. However, it can’t itself become the standard for impeachment.

I agree with Yuval that President Trump “leaves no room for Republicans to say what. . .seems on net to be the case: that what happened was seriously improper but given all the relevant circumstances and implications it doesn’t rise to the level of removing a president.” But how does one get to the conclusion that what happened doesn’t rise to the level of removing a president?

If the test is “civic health” or whether the nation would be “better off” without Trump in the Oval Office, one can, in good faith, reach whichever conclusion one’s partisanship demands. If the test is the Constitutional language, a good faith inquiry is more constrained.

Yuval is correct that Republicans can’t seem to say that what Trump did was seriously improper, or even improper at all. However, they should be able to say, lawyer like, that even assuming just for the sake of argument, that he did what the Democrats claim he did, it wouldn’t be grounds for removal. Saying so, Senate Republicans could try to end the trial on a motion, after opening arguments and some debate.

That’s the outcome I’d like to see. I think it’s also Mitch McConnell’s preferred outcome. However, the president seems to want a trial.

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