Impeachment won't answer the questions we need to ask
So, the House has voted to open an impeachment inquiry against President Trump. In practice, this means that more of the hearings will be public, and that House Democrats are a step closer to considering formal articles of impeachment.
In many ways, we don’t know a lot about what happens now. We’ve seen only a few presidential impeachments in this country, and each one had its own quirks. I said to a group of colleagues the other day that we probably do have a fair amount of relevant knowledge – historical precedent, theory – but what we don’t know is exactly which pieces of information are relevant to these circumstances. What we do know is that we are moving into a highly partisan impeachment process, in which politics have been bitterly polarized for at least a decade. Cornell University political scientist Tom Pepinsky warns of a deepening divide over institutions in the U.S. His observations link impeachment politics to the questions of when partisan polarization gives way to the breakdown of legitimate opposition, and how the kind of “constitutional hardball” that characterizes fragile democracies might apply now.
Where I want to intervene is to think through how these “hardball” dynamics play out in our specific place and time. The place and the time are linked. The distinct history, particularly where race is involved, the size of the territory and population, and the institutions (presidency! Federalism!) combine to make the American case a function of particular features.
The nature of the American presidency is obviously a central factor in the current situation. Let’s start with the question in front of us: impeachment. Opponents of impeachment (including, but not limited to, House Republicans) have suggested that the process seeks to invalidate the 2016 election. They also argued, some on the House floor, that Democrats have sought to remove Trump since the election, and have never accepted the legitimacy of his presidency. A variety of critics have taken down these arguments, pointing out, for example, that any impeached president would have to first be elected. But if we take these seriously for a moment, starting with the second point, we can uncover some useful ways to think about the situation.
For whatever they may be wrong about, Trump’s congressional defenders are not wrong that at least some Democrats have never been eager to lend a lot of legitimacy to the 45th president. Sure, this reflects the 2016 election result, in which Trump won fewer votes than his opponent, and subsequent suspicions about Russian involvement in the election. But the real force of gravity pulling away from treating Trump like a standard political opponent lies in his statements during the campaign: those that attacked democratic institutions, denigrated the press, and insulted people by group on the basis of religion and ethnicity. This isn’t an exhaustive list of things that made people oppose Trump. But these are the things – magnified once in office – that have created real barriers to Trump’s opponents accepting him as a standard opposition party president (and led to a number of high profile defections from party ranks).
No one really knows what impeachment is or what “high crimes and misdemeanors” means. What we do know, if we’re honest about it, that impeachment is a phenomenally inadequate Constitutional provision for resolving the challenges to which it has been applied. This is really what I meant when I wrote a couple of years ago that impeachment is political and not legal. Of course, impeachment is also a legal process. But it plays out in a political arena, and the problems it seeks to solve are, in practice, fundamentally political. It’s this latter point that I want to dwell on.
First, we need to think about why some presidents face impeachment while most do not. We’ve had a lot of terrible presidents, and while some of them didn’t get reelected or re-nominated, very few of them have been impeached. But between slave-owning and other forms of racism and unauthorized wars and just downright bad decision-making, pretty much no one’s favorite escapes unscathed. The two presidents who went through the entire impeachment process, Andrew Johnson and Bill Clinton, were both acquitted in their Senate trials. Both impeachments were regarded as partisan circuses in some ways. And both were terrible in specific ways that got obscured, not addressed, by their impeachment processes. Andrew Johnson was a racist and wanted to empower the South to reestablish a racial hierarchy. Bill Clinton had an affair with an intern half his age in the Oval Office, a disgraceful abuse of power that would get you fired from many jobs in the private, non-profit, and government sectors. I guess reasonable people can disagree about both of these things, but I’m getting to that in a bit.
The Nixon case almost brings these procedural and substantive considerations together, but it has also spurred almost 50 years of debate about whether it was about the cover up or the crime. The Watergate burglary got to name the event, rather than the lawless move of using the government to go after political adversaries. Ideally, presidents would misuse the resources of the state to play hardball politics in an iconic hotel whose name contains an easily appended syllable.
The stories that are clear and legalistic enough for impeachment prevent the nation from discussing what actually happened. Trump will not be impeached for his administration’s separation of families at the border, policies in Syria or statements about Muslims, just as the Clinton impeachment was not about workplace sexual misconduct and the Johnson one was not about mishandling the post-Civil War period. And in any given situation we may be relieved not to have that difficult conversation, but in the long term we’re poorer for it. Impeachment just doesn’t have the institutional reach to address the real issues at stake.
This brings me to the point about impeachment undoing elections, but it’s going to be a long wind up. First we have to think about how legitimate opposition works. Legitimate opposition has been in the news lately and that, understandably, makes everyone nervous. First, we had some robust debate about a video of comedian Ellen DeGeneres and former president George W. Bush at a football game, followed by a video in which Ellen explained her friendship with Bush in terms of kindness despite political disagreements. Detractors suggested that Bush’s record on war and LGBT rights disqualified him from such consideration. Others argued that civility and easing of political differences are exactly what the current era needs.
A few weeks later, Trump was greeted with chants of “lock him up” at a World Series game and the world of internet commentary briefly disintegrated. Scholars and journalists registered deep disagreement over whether the content of the chant was anti-democratic or whether it is good to engage in this kind of protest. (Which has now also happened at a Bernie Sanders rally.)
Debates about civility and chants miss some of the important points, though. What we’re really debating about is when to treat a political opponent as someone with a difference of opinion and when those differences are too great, too fundamental, to be patched over with sports or politeness or displays of patriotic symbols. Furthermore, we all know some behavior and positions are outside the official bounds of consensus but are tolerated anyway. So we might more productively ask who gets to enjoy such an exception, and who gets to decide? Politics requires compromise, but it also requires drawing moral boundaries around unacceptable ideas and actions. The most robust institutions and meticulously followed norms will not eliminate this tension.
What is different now is the media environment and a changing society has meant that that a far larger group of people than ever before have been able to weigh in on the questions about what lies outside the boundaries of the political consensus, or who should be given a pass for violating shared standards. I would argue that this is not worse than arrangements in the past. But it does have more potential for instability.
It’s in this environment, then, that we move forward with the question of presidential impeachment and the looming questions about the 2016 election. As legitimacy has become more elusive in American politics, the emphasis on elections has increased. In perhaps some very abstract sense, both parties still embrace some kind of idea about the potential for elections to confer political authority. The 2016 election, however, turned out to be about process rather than substance. In other words, Trump won according to the rules as they are set out. But the electorate hardly rendered a verdict in favor of his ideas. And so his presidency has proceeded amid a number of unresolved questions about identity and values as well as policy preferences.
In other words, the current moment is unique, but not quite for the reasons that my comparativist colleagues keep pointing to. The emphasis of these comparative analyses has been the stability of institutions and their widespread acceptance, and the strength of the idea of legitimate opposition. I would argue that all of these have been consistently shaky in American politics, with the boundaries of institutions, opposition and discourse perpetually contested. It’s true that we don’t always have what Pepinsky calls “regime cleavages” at the center of politics. But the questions these cleavages represent – about who belongs and how we make decisions and distribute power – are usually lurking somewhere. They surface periodically. We might be better served to think about them as tensions that can be more and less visible, rather than conflicts that are sometimes present and sometimes not.
And now seems to be one of those times. The impeachment process, like the last presidential election, however, is likely to convey only the most superficial expressions of this conflict. Assuming impeachment goes forward in the House, the Senate will either convict or (more likely) not. And neither result will convey much meaningful information about the substantive questions that shape the real confrontation between Democrats and Republicans. As usual, the problem isn’t that our political system produces too much conflict. Rather, it deceives us with possibility of resolving our disagreements without ever really confronting what they mean.