Let’s imagine that, halfway through his Wednesday testimony before the two House committees, former special counsel Robert Mueller produced a bombshell video. In it, President Donald Trump clearly and explicitly orders then-White House Counsel Don McGahn to create false evidence for the very purpose of sabotaging Mueller’s investigation.
Even if that happened, 20 Republican senators would still need to vote to convict Trump in order to remove him from office via impeachment. And if you think that’s going to happen, you haven’t been paying attention.
Republican members of the House committees just spent their Wednesday angrily denouncing Mueller. With few exceptions, Republicans in both houses were unmoved when a U.S. Attorney’s office implicated Trump in a crime. They were similarly unmoved when over a thousand former federal prosecutors joined a letter arguing that “the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”
Trump is immune from being stripped of his office via impeachment. That’s not a legal judgement, it’s an entirely political one. But it is an ironclad truth about American politics in 2019.
There is no way to remove the President of the United States without significant cooperation from many powerful members of the president’s own party. And if you believe that such cooperation is going to happen, then you’ll probably be very excited to learn about the educational opportunities available to you at Trump University.
There should be a way to remove a criminal president from office, but the impeachment power ain’t it. The power of impeachment is a paper tiger, largely unused throughout American history, and useless against officials with a significant partisan power base.
Indeed, the primary impact of the impeachment power in 2019 is that it’s divided Democrats into the camp that sees no value in an entirely symbolic impeachment proceeding, and the camp that is boiling over with rage against the first camp. Rather than offer a vehicle to remove a manifestly unfit president from office, the impeachment power makes the opposition look feckless and weak. It divides the unified front that could remove Trump the old fashioned way — through an election — and ultimately strengthens Trump’s hand.
Both several American states and many other nations have better systems to judge and remove officials who commit misconduct. The United States should adopt those systems.
But we shouldn’t pretend that the system we have offers any meaningful protection against criminals in high office.
The weakest power
The House impeached only 19 public officials during all of American history, and one of those was a former senator who’d already been expelled from the Senate and who was arguably beyond the scope of the impeachment power.
Of these 19 impeachments, only 11 were successful — in the sense that they either resulted in a conviction or the official in question resigned before they could be tried by the Senate. All 11 officials who lost their job after being impeached were federal judges, and lower court judges at that.
As a practical matter, in other words, the impeachment power is rarely used. And when it is used successfully, it’s only been to remove a particularly noxious judge every two decades or so. Unless you believe there have been fewer than a dozen American officials in the entire history of the republic who committed serious crimes and refused to step down on their own accord, impeachment is one of the most underused powers in the Constitution of the United States.
To be sure, many of those judges were quite deserving of impeachment and removal. Judge Thomas Porteous, who was removed from office in 2010, stood accused of concealing “the cash and things of value that he solicited and received from lawyers appearing in litigation before him.” Judge Samuel Kent, who resigned in 2009 before his Senate trial completed, was impeached due to allegations of sexual assault.
But it is far from clear why the complicated impeachment process — indictment by one house of Congress, and trial by the other — is needed to prevent such judges from continuing on the bench. In many states, the judiciary polices its own. Former Alabama Chief Justice Roy Moore, for example, was twice stripped of his judicial responsibilities by a special court that hears complaints against sitting judges and is empowered to remove them from office.
Courts, after all, have far more experience with weighing criminal charges and evaluating evidence than Congress does. They are inherently better suited to determine whether a particular judge committed an offense that warrants removal.
The problem of incompetence
Because impeachment is such a rare event, the impeachment of a partisan official — especially a president — takes on outsized significance. Imagine being the very first president in American history to be removed via the impeachment power. Imagine how much that would humiliate that president’s party. That’s, at least, a partial explanation for why the president’s co-partisans in the Senate can typically be relied upon to frustrate impeachment.
Consider, as well, another possibility. Imagine that the president is not a criminal, he’s just a fool. By its terms, the Constitution only permits the president to be removed for “treason, bribery, or other high crimes and misdemeanors.” But what if the president alienates our allies, endangers our economy, and even threatens to lead us into a disastrous war? Should the nation be doomed to four full years under a manifestly unfit president, simply because that president has not broken a criminal law?
It’s not like this in most democracies. The United Kingdom, for example, just swapped out former Prime Minister Theresa May for new Prime Minister Boris Johnson. Both are members of the Conservative Party. And while May’s resignation arose from her inability to mitigate the harms of a Brexit process that’s likely to prove disastrous, May leaves office without the taint of criminal misconduct.
If the Tories suffer a blow from their decision to replace May with Johnson, it will be because of bad policy choices. Not because they were humiliated in an extraordinary quasi-judicial process.
Or, for that matter, consider what happened in 1990, when Prime Minister Margaret Thatcher was so unpopular that her Conservatives were cruising towards a crushing loss against the opposition Labour Party. The Tories did not need to wait for that election, lose it, and then be reduced to the minority. Rather, the British system allowed the Tories to swap out Thatcher for Prime Minister John Major, and Conservatives retained control of government for nearly seven more years under Major.
The point isn’t that the United Kingdom was better off with more than half a decade of Tory rule. Rather, the point is that the British system makes it easier to remove a criminal, incompetent, or unpopular leader — and it also drastically reduces the cost of doing so. The decision to replace a prime minister isn’t a minor event, but it also isn’t the sort of world-historic ignominy that must be avoided at all costs.
As the late political scientist Juan Linz explained nearly three decades ago, parliamentary systems — that is, a system like Britain’s where the executive is chosen by the legislature — are inherently superior to an American-style separation of powers because parliamentary democracies are more stable. They avoid a situation where rival factions each control at least one veto point, and so must-pass legislation is never enacted.
Parliamentary systems also lower the stakes of elections. Because it is easier for the victorious party to govern after it wins an election in a parliamentary system, it is also easier for the opposition party to undo the majority party’s mistakes if the opposition wins an election. Bad policies are not entrenched because it is too difficult to dislodge a minority party from a malapportioned Senate.
And parliamentary systems also have another big advantage. Because executive power flows from the executive’s membership in a majority coalition — and not from the executive’s own success in a singular election — parliamentary democracies are far less likely to descend into a cult of personality. The majority party, moreover, has a strong incentive to remove executives who perform poorly. After all, doing so is relatively easy, and it can strengthen the party’s hand in the next election.
This is a far superior method of policing bad or even criminal executives than relying on the American impeachment process.
A few words about Nixon
If you’ve read this far, you’re probably asking a question: “what about Richard Nixon?” President Nixon was never impeached, but that’s because he resigned from office before the House could vote on impeachment. It’s reasonably likely that, but for the impeachment power, Richard Nixon would have served out his second term.
Fair enough, but there are a few related reasons why the circumstances that led to Nixon’s resignation no longer exist.
One is that the two major political parties are far more “sorted” than they were in 1974, when Nixon left office. In the 1970s, there were still very conservative Democrats and fairly liberal Republicans. And both of these factions wielded significant power within their partisan coalitions. Nixon’s successor, President Gerald Ford, chose the leader of the Republican Party’s liberal wing as his vice president.
Similarly, there were also lawmakers with ideologies that did not fit neatly into either the “liberal” or the “conservative” box. Many southern Democrats, for example, were vicious racists. But they also believed in an expansive regulatory state and a generous welfare state for white people.
Additionally, as the political scientist Frances Lee has explained, there was also far less partisan competition in Congress. Democrats, largely due to a core of southerners who had not yet decamped to the GOP, were overwhelming favorites to control Congress. That meant that Republican lawmakers had a strong incentive to cooperate with Democrats because bipartisan alliances were these lawmakers’ best path to relevance.
But none of these circumstances still exist. The most liberal Republican in the Senate is well to the right of the most conservative Democrat. The degree of ideological variance within each party is far less than it was in the 1970s. And nearly every election is an all-out battle where control of Congress is at stake. The circumstances that led Republicans to cooperate with Democrats over a potential Nixon impeachment no longer exist.
“There is nothing I dread So much, as a Division of the Republick into two great Parties,” future President John Adams wrote in a 1780 letter. Such system, according to Adams “is to be dreaded as the greatest political Evil, under our Constitution.”
Adams was hardly alone in this belief, and the men who crafted our Constitution believed that they’d built a system of government that would resist partisanship. Our “well constructed Union,” future President James Madison wrote in the Federalist Papers, would have a “tendency to break and control the violence of faction.”
But Madison was wrong. The framers built a constitutional system that depends on cooperation, but that does not necessarily foster cooperation. The premise of the Constitution of the United States is that we can all just get along, at least in times of great crisis such as when a criminal president occupies the White House.
But that premise is flawed. The impeachment power is fundamentally unsuited to the problem it is supposed to solve — ensuring that criminals do not continue in office even if they have a political power base.