Don’t Play Pelosi’s Game of Politicized Impeachment

House Speaker Nancy Pelosi speaks to reporters a day after supporters of President Trump occupied the Capitol during a news conference in Washington, D.C., January 7, 2021. (Erin Scott
/Reuters)

If there must be an impeachment then it should be a real impeachment, not a political exhibition and not a partisan scheme.

In a column yesterday, I observed that the Democrats may well be engaged in a political stunt rather than a good-faith effort to impeach the president. I said I’d address separately, so let me get on with it.

I believe the president has committed impeachable conduct. I don’t believe impeachment is necessarily the best way to handle the current moment in light of the fact that the president’s term ends in eight days. With that said, though, I can’t have it both ways: chastise the Democratic congressional majority, as I have done, for pressuring the executive branch to invoke the 25th Amendment (which does not apply); yet simultaneously criticize Democrats for resorting to impeachment, which actually is a constitutional power granted to Congress for the purpose of checking presidential misconduct.

Moreover, there is nothing in the Constitution that says Congress’s impeachment power hinges on when, during the president’s four-year term, an impeachable act occurs. There are at least two obvious reasons for this. First, if a president’s misconduct were sufficiently egregious, it would be necessary to remove that president even if there was just a day left in the term. Second, the Framers did not term-limit the president — the term limit was not imposed until 1951, when the 22nd Amendment was ratified. When the Constitution was first adopted, there was no assumption that the late stage of a presidential term was necessarily the end of that president’s time in office, and thus no notion of a point when the threat of impeachment would be of minimal value. (Relatedly, I think that is also why, though the Framers barred the president from pardoning himself from impeachment, they did not ban a self-pardon from criminal prosecution. Since a self-pardon could be an impeachable abuse of power, the Framers probably calculated that the possibility of being expelled from office would be enough of a disincentive. Of course, if the president is term-limited, then there is no possibility of staying in office, so the incentive to avoid impeachable conduct disappears.)

Consequently, if Democrats insist on pushing ahead with impeachment, I do not believe Republicans should oppose, provided that the impeachment article Democrats propose is an accurate description of the president’s misconduct. As I contended in yesterday’s column, I do not believe the currently proposed article is accurate; it is more a political narrative than a pleading. But putting that aside, the preliminary question is: Are the Democrats really pushing ahead with impeachment? That is, is this a good-faith impeachment or partisan gamesmanship?

Remember the first impeachment of President Trump a year ago? It was a nakedly political exercise. But the cherry on top was when Speaker Pelosi delayed in transmitting the impeachment articles to the Senate.

Beside the fact that the Ukraine impeachment episode was based on conduct that did not rise to the level of high crimes and misdemeanors, Pelosi rammed it through the House in a due-process-lite proceeding (albeit one that took several weeks, as opposed to the one-day “process” Democrats propose for the current impeachment push). The speaker claimed time was of the essence. It wasn’t. Democrats were operating on a political calendar. They rushed to get impeachment done before the holidays and the kick-off of their 2020 election campaign. Then, once the House approved impeachment along partisan lines, Pelosi suddenly decided that there was no rush after all. She delayed naming impeachment managers and transmitting the articles to the Senate, calculating that she’d do it at a more propitious time.

The point was not to remove the president; it was to maximize political advantage.

There are reasons to believe she is planning to do the same thing this time around, except even more cynically. Democrats, including the influential Representative James Clyburn, are suggesting that, after the House rams through an article of impeachment on Wednesday — in one day, with no hearings and no real debate, just a take-it-or-leave-it article drafted in accordance with the Democrats’ version of events — Pelosi will just hold on to the article. She won’t appoint managers or transmit the article to the Senate.

In explaining their thinking, Democrats say — as if this were the most natural thing in the world — that there should be minimal interference with confirmation of the new (Democratic) president’s cabinet, so the new administration can get up and running, tending to its aggressive agenda for the first 100 days. Then some time down the road, maybe in May, maybe even later, the speaker will deign to send the impeachment article and the managers over to the Senate for the purposes of prompting a trial. You know, at some time that President Biden, Vice President Harris, and Senator Schumer find advantageous.

That would not be a real impeachment. It would be a partisan stunt.

By acknowledging that there is no urgency to deal with an impeachment trial because Trump will already be gone, Democrats are implicitly conceding that there is no urgency in proceeding with impeachment in the first place.

Just like the Senate trial, the House approval of an impeachment article could wait until Trump leaves office. There is no justification for rashly pushing it through with no normal proceedings, no hearings, no due process, and no debate on the substance and articulation of the allegations. Indeed, I would argue, that there is no imperative to do it at all. The Congress could instead enact a joint resolution of censure that fully and accurately describes President Trump’s misconduct. Such a resolution could even include a finding that Trump would have been subject to impeachment and removal had the behavior not happened so close to the end of his term.

If there must be an impeachment, and there truly is urgency to do it because the Constitution’s defense purportedly demands it, then it should be a real impeachment, not a political exhibition and not a partisan scheme to spring a Trump Senate trial at some future date when it would be useful to Democrats.

Republicans should not be duped like they were last time. They should demand a commitment from Speaker Pelosi that, if the House approves an article of impeachment, she will immediately appoint managers and transmit the article to the Senate, whose rules require a trial forthwith.

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