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The Prudential Case against Impeachment

National Review logo National Review 12/23/2019 Michael Brendan Dougherty
Donald Trump wearing a suit and tie: President Donald Trump boards Air Force One at Morristown municipal airport, August 4, 2019. © Yuri Gripas/Reuters President Donald Trump boards Air Force One at Morristown municipal airport, August 4, 2019.

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Editor’s Note: National Review has inaugurated a new feature, “To the Contrary,” where an NR writer dissents from NR’s official editorial line and another writer replies. NR opposes impeachment, but nearby, Ramesh Ponnuru makes the case for it. Below is Michael Brendan Dougherty’s reply.

Ramesh Ponnuru has been one of the most interesting voices on impeachment. His judgments about President Trump’s conduct seem to me well measured. And they are constrained by his appreciation of political reality. I part company with him just before his conclusion, where he treats the question of the prudence of removing the president and argues that Congress should vote for Trump’s removal. I’ll come back to that in a moment.

Ponnuru’s writing about impeachment implies that there may be an underappreciated wisdom in the constitutional design as it has evolved from the Twelfth Amendment. That is, the political bar for removing the president seems extremely high, much higher than the bar for electing one. But the punishment inflicted on the party holding the presidency is not nearly as grave as losing the presidency entirely. The president is removed, but the executive branch remains in the hands of his own vice president.

This is interesting as a matter of politics. Unseating the executive in an election is normal. Unseating him in an impeachment is extraordinary, though constitutional. This may explain why so many people — including Speaker Pelosi, until recently — perceive that launching an impeachment drive is hazardous for the president’s accusers in the House. You are using extraordinary means, but the political payoff may not be so extraordinary. This helps explain why Pelosi and others are so anxious to engage in this political process with the appearance of solemnity rather than of giddiness.

Back to Ponnuru’s case for impeachment. Toward the end he writes:

Whether Trump should be removed from office over the objections of nearly half the country is not an important question. He can’t be. There are better questions. Would it be good for the country if a large majority of Americans were to be persuaded that it is unacceptable for a president to use his office to encourage foreign governments to investigate his political opponents? Assuming that the necessary level of support to remove a president from office for that offense will not be reached, should we prefer that more elected officials go on record that it is unacceptable — or that fewer do?

My answers, like Ponnuru’s, are “yes.” Ideally, we would do that. We are in need of citizens and politicians understanding their responsibilities underneath the Constitution.

But I have more questions beyond these. Is the primary effect of impeaching president Trump to reestablish and enhance the operation of our Constitution and remedy his abuse of power? I wonder. Ponnuru’s case for Trump’s makes sense on its own terms, relating solely to Trump. But being a human being who remembers many other presidential offenses in his lifetime, I’m puzzled.

Much has been made of the fact that Trump delayed the dispersal of funds and aid duly appropriated by Congress. President Ronald Reagan boldly defied the Boland amendment, in which Congress prohibited funding of the Contras in Nicaragua, by secretly selling arms to Iran, then subject to an arms embargo. There were inquiries, but no impeachment.

Involving the use of the public powers and trappings of the office for private benefit ahead of an election, Bill Clinton’s Lincoln-bedroom scandal seems to me to have set an egregious precedent. As with Trump, the act did not involve breaking a statute, but it was deeply unseemly.

Modern presidents have routinely launched the United States into belligerency with other nations without congressional approval. Barack Obama had already put special forces into Syria before he asked Congress to approve of a more wide-ranging mission there. Congress refused to vote on it, given its unpopularity. The mission crept on anyway. If you want to go back much further, every American president who is connected to the Vietnam War must answer for grave lies to the American public, relating both to the cause of the war, its conclusion, and its scope.

You may dismiss all this as “whataboutism” – a recently coined term meant to name an evasive rhetorical technique. But I think Socrates was the first whataboutist philosopher, and he brought up his counterexamples in order to probe our standards for real coherence.

Would it be good for the country to impeach Trump for his Ukraine phone call, having not impeached his recent predecessors for graver offenses? If raising the standards means the standards would be kept there, perhaps yes. I believe Ramesh Ponnuru would keep the standards there. Would others? I also suspect that while Ponnuru might quibble with some of my examples of presidential abuses before, he generally agrees that modern presidents have been getting away with impeachable offenses.

My next question: Why isn’t Trump getting away with his? I suspect the reason is similar to the reason that Andrew Johnson was impeached. Clinton too. Offenses to the Constitution are routinely tolerated in presidents. but Trump’s Democratic opponents and Republican critics find themselves literally disgusted by him. I cannot prove, but I suspect, that it is this more visceral disgust — one that predated the release of the rough transcript of the Ukraine phone call — that is driving impeachment. Finding a tax-evasion charge on Al Capone may be expedient for imprisoning him. But finding a technically abusive request that was not carried out in order to effect the already desired impeachment is something less than constitutional hygiene.

The Republican talking point in defense of the president — you always wanted to impeach him, you only just now found your excuse — has some purchase. It’s not strictly logical. But neither has been the American practice for impeaching presidents. If I had some sense that the political effect was to restore constitutional good order, I would happily support impeachment. But the political effect of impeachment seems to me to be aimed at restoring a Washington consensus way of doing things, and a Washington culture, that has been indefensible for decades. That’s a project unworthy of support, and politically unwise to pursue.

This is the consensus and culture that Trump was elected to disrupt and destroy. I think many of his supporters acknowledge freely he’s not quite the perfect man for the job. And so my own political judgement is that the best course was for Congress to inquire about, investigate, and publicize his misdeeds — and thereby encourage Trump’s challengers to campaign on them in the next presidential election.

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