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On Impeachment, Fast Is Fine

A slower impeachment process may uncover more facts. But a fast impeachment may be more constitutionally prudent.
December 13, 2019
On Impeachment, Fast Is Fine

As the fastest-ever presidential impeachment process speeds toward its climax, several conservative critics of President Trump have called on House Democrats to extend their timeline, allow the facts of the Ukraine scandal to sink in, direct more time and effort toward making their case to the American people, and fight the Trump administration’s obstruction of the investigation in the courts.

These arguments are strong. By moving to impeach the president without an exhaustive factual record or a slew of court rulings against him, Democrats may be throwing away their one shot at removing him from office. And even though articles of impeachment have been drafted and the Judiciary Committee has already begun its markup hearings, there is no reason the evidence-gathering phase need be considered closed. Important new facts may yet be brought to light.

But a more drawn-out impeachment process would involve some tradeoffs worth thinking about.

It helps to begin with this observation: What was unimaginable three years ago is fact today. The idea that a president of the United States would strong-arm a friendly government into intervening on his behalf in an election would have been a wacky conspiracy theory in 2016. Now, it’s at least the overwhelmingly likely explanation for the administration’s bizarre shadow foreign policy.

Likewise, what’s politically unthinkable today may become fact in a few years. If it seems impossible to you that presidential power could be any more heinously abused than it has already been—well, that’s just a failure of imagination. The primary goal of impeachment should be to prevent even more serious presidential malversation in the future.

With that goal in mind, Congress should signal as strongly as possible that President Trump’s Ukraine scheme is unacceptable. But given the heightened partisanship in both chambers, it seems certain that the full House vote on impeachment and the Senate vote in the subsequent impeachment trial will be almost entirely along party lines. The best scenario within the realm of plausibility would involve a (slightly) bipartisan majority of senators voting to convict President Trump, even if the number falls short of the two-thirds supermajority required for his removal.

But even this outcome would have real value. It would establish that the present scandal is broadly unacceptable behavior. Seeing that the Ukraine scandal escalated from initial reports to impeachment within four months would make a future president think twice about emulating the Trump administration.

The quickness of the timeline indicates congressional seriousness. Impeachment is always an option. It can happen very suddenly (by congressional standards). And the factual requirement for an impeachment isn’t at the level of the Starr Report or even the Mueller Report—the facts compiled in the Schiff Report are sufficient.

The alternative to a fast impeachment—that is, one with a more thorough investigative process, perhaps requiring a series of court fights over subpoenas—arguably would not establish as clear a precedent of robust congressional indignation at the president’s malfeasance. Yes, a series of court rulings against the president could, in theory, strengthen the legislative branch against the executive in this particular instance. But it would also establish an unwise precedent: that Congress has to team up with the courts for any impeachment. That requirement is found nowhere in the Constitution, which gives the House of Representatives “the sole Power of Impeachment.”

There’s no reason why impeachment should require the courts to intervene. While inter-branch disputes often end up in the courts, impeachment is rightly viewed as a political process that merely imitates some judicial processes.

Besides, the judiciary tends to be much slower than Congress. If Congress were to petition the courts to enforce its subpoenas of senior administration officials, it would stand a good chance of winning—but the whole process could take many months. Even on an expedited schedule, it took more than eight months for the courts to enforce the subpoenas against Richard Nixon. A similarly accelerated schedule would double the length of the current impeachment process.

Not every impeachment should proceed at rocket speed, but the minimum timeline for impeachment should be kept short. The Ukraine scandal is the perfect example why.

One reason the Trump-Ukraine plot so clearly merits impeachment is that it threatened the integrity of the next election. If the minimum time for both chambers of Congress to process an impeachment is, say, about five months, that effectively gives any president five months before an election in which to cheat without the repercussion of impeachment. This effect would be felt even more severely in a president’s second term, in which he’d have a free hand to interfere in the election of his successor.

Impeachment is a loaded gun, held by Congress alone, to be used (probably just once) against a president manifestly unfit for office. The constitutional safeties—treason, bribery, or high crimes and misdemeanors, plus the supermajority of the Senate required for removal—discourage its abuse. But if Congress is unwilling to use it, it will cease to be a credible threat.

Maybe the commentators who have criticized the high-speed impeachment are right: Maybe Congress should slow down, steady its aim, and give itself the best shot possible at its target. Maybe the strongest, most meticulously prepared case against the president may set the best precedent if it’s able to unite Congress, the courts, and public opinion. But if it can’t, a fast warning shot from the hip may have more effect than an errant shot taken with care.

Benjamin Parker

Benjamin Parker is a senior editor at The Bulwark.