by Alan Hirsch
Despite all the uncertainty surrounding impeachment, we can capture the current moment succinctly: President Trump’s fate hinges on whether Republican senators are more fearful of losing in a primary or in the general election. Now that the live impeachment hearings are about to fuel nationwide prime-time programming, those senators’ fears are likely to intensify.
While that dynamic will determine whether Trump will be removed from office, it doesn’t tell us whether he should be. I am generally an impeachment skeptic. My recent book—Impeaching the President: Past, Present, Future—argues that impeachment should be regarded as a last resort that, as a general proposition, is inappropriate in a president’s first term. The American people are capable of rendering judgment and should be given the first crack.
Where the current president is concerned, however, my impeachment skepticism has finally been overcome. Speaker Pelosi was right to launch an impeachment inquiry and, barring the emergence of facts pointing in an improbable direction, the House should impeach and the Senate should convict and remove President Trump.
Just last year, I wished for Congress to defer to the American people. With the presidential election now around the corner, isn’t the case for deferral stronger? No. In my book, I discuss crucial exceptions to the preference for letting the voters decide the fitness of a president.
One exception arises when the president’s misconduct involves activity designed to skew things in his favor with respect to reelection. Self-serving election-affecting behavior lay at the heart of Watergate. Much of the underlying misconduct by the Nixon administration involved improper activities against his prospective opponents in the 1972 election. True, Congress pursued impeachment against Nixon during his second term, but no one disputes that it would have been appropriate in his first term had the extent of his malfeasance been known.
That is why recent revelations about the Trump administration’s behavior with respect to Ukraine are an impeachment game-changer. Holding U.S. foreign policy hostage to personal benefit would be serious enough in any case, and becomes clearly impeachable when the advantage sought is to one’s own reelection.
Worse still, the President Trump’s troubling phone call with Volodymyr Zelensky, in which he requested the “favor” of an investigation into Joe and Hunter Biden (with circumstances suggesting that he held out military aid as reward for that favor), is not the only instance of Trump violating the law or norms surrounding U.S. elections.
Perhaps Trump was joking (as some of his supporters insist) when he urged Russia to find Hillary Clinton’s missing emails and China to investigate Mr. Biden. But there was nothing jokey about his hush money payments to Stormy Daniels and Karen McDougal to prevent the dissemination of information about his alleged extra-marital affairs shortly before the 2016 election. These apparent violations of campaign finance law constitute more than a technical crime: Their purpose and effect was to keep from the American people information that might have affected the election. We have the makings of a pattern: Trump’s willingness to act improperly to secure victory at the ballot box. When a president continually engages in inappropriate behavior to win an election, the election itself ceases to be a reliable way of removing him.
Of course, not every violation is of equal magnitude. For example, withholding lawfully appropriated military aid from foreign leaders unless they investigate Mr. Biden is probably not as bad as breaking into Democratic National Headquarters. Even if Trump’s chat with Zelensky wasn’t quite the “perfect call,” he claims, it was hardly the most egregious interference with a U.S. election. Should we give Trump the benefit of the doubt that he wishes to root out all corruption, not simply that which benefits him politically? Here we might heed the wisdom of Mitt Romney, who observed that Trump seems obsessive in pursuing Biden’s alleged corruption while showing little eagerness to combat corruption more broadly.
Even so, we could give him the benefit of the doubt. In my book I argue for a presumption against impeachment: “When in doubt, don’t throw him out.” But here too, I noted that the rule is not categorical. I call one exception the “rotten store” factor, reference to a comment by a U.S. senator at the time of the Nixon impeachment inquiry. Senator Paul Sarbanes imagined someone sifting tomatoes in a supermarket and finding that one after another was rotten. If we then sift different vegetables, and find the same thing, at a certain point we ask, “What kind of a store is this?”
Sarbanes and others eventually concluded that Nixon must go not only because he had committed high crimes and misdemeanors but also because his administration was rotten to the core. I noted in my book that the rotten store metaphor might apply to the Trump administration, citing a range of dubious conduct by President Trump, including “seeking to prevent Muslims from entering the country . . . attacking the Justice Department, FBI, and individual federal judges, downplaying the actions of white supremacists, and waging an assault on the media (including calling them ‘the enemy of the people’) and threatening to restrict their freedom.”
The sense that an administration is rotten does not suffice for impeachment: There must be high crimes or misdemeanors. However, where there is an impeachable offense, but members of Congress consider honoring the presumption against removing the president, the rotten store may be decisive. A president may forfeit the presumption against impeachment.
When a rotten administration repeatedly seeks to gain an improper advantage at the ballot box, it no longer makes sense to regard the ballot box as the only means of removing the president from office.
Alan Hirsch, Chair of the Justice and Law Studies program at Williams College, is the author of Impeaching the President: Past, Present, Future (City Lights, 2018) and A Short History of Presidential Election Crises (And How to Prevent the Next One) (City Lights, forthcoming in 2020).
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