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The Republicans’ Arguments Against Impeachment Are All Terrible

Also, let's talk about what 'high crimes and misdemeanors' means and doesn't mean.
September 30, 2019
The Republicans’ Arguments Against Impeachment Are All Terrible
Mitch McConnell. (Photo by Zach Gibson/Getty Images)

As the focus of impeachment talk has gone from the Mueller report to the potentially more damaging Ukraine scandal, many Republican lawmakers have gone from actively arguing against it to practicing “strategic silence,” but either stance is a betrayal of what conservatives claim to be deeply rooted constitutional principles. 

Impeachment is undoing the act of the voters, goes the argument. Yes, it is, and that’s exactly the purpose of it. As Republicans have said for decades, the United States is not a democracy but a representative republic. The purpose of the impeachment clause is precisely for the trustees of the voters in Congress to undo what the voters did.

What if the citizens who voted in Trump don’t care about his wrongdoing and, in fact, support him in spite of the many accusations against him? That’s not an excuse for legislators to ignore their sworn duty. In fact, conservative icon Edmund Burke touched on this in his “Speech to the Electors of Bristol”: Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

The question is not whether the constituents approve of impeachment of Donald Trump, but whether lawmakers judge that Trump should be impeached.

Should they judge so? Yes! These are the same people who argued that Hillary Clinton’s emails and the Clinton Foundation’s financial corruption made her unfit to be president. If so, then so does the Ukraine scandal.

James Madison spoke of impeachment to be “indispensable” to defend the community against “the incapacity, negligence or perfidy of the chief Magistrate.” In other words, incompetence is enough of a reason for impeachment.

“But what Clinton did was illegal, and this is not.” Wrong! The U.S. Code says that “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election” and “a person to solicit, accept, or receive a contribution or donation money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election… from a foreign national.” There should here be an emphasis on “thing of value.” And nobody can say that dirt on Joe Biden’s son is not a thing of value without stretching so far to dislocate a shoulder.

Besides, according to Federalist Paper—Federalist Papers are the very documents Republicans claim to love for the purposes of judicial originalism, written by the Founding Fathers they claim to love whose wisdom they often resort to—No. 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. 

There is so much to dissect here. First of all, legal or not, Alexander Hamilton makes a case that impeachment and conviction are political acts—the word “political” is capitalized in the original document. The process is a result of a public person’s misconduct (check), abuse (check), or violation (check) of public trust.

In the Constitution, the framers wrote that a president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The term had been used by the English parliament since the late 14th century and had been used to impeach officials for such offenses as “accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury” and others. So clearly the original intent was the literal meaning of the word: a nonindictable offense or a wrongdoing. Which means the judge of it is the member of Congress who’s casting the impeachment or conviction vote.

The second half is prophetic; creating parties (not necessarily political parties) friendly and enmious to Trump is exactly what has happened, and, in using talking points to defend the Trump, Republicans are preventing the litigation of guilt, something that Hamilton predicted would lead to “the greatest danger” of political wrestling.

Some Republicans have suggested that, since there are presidential elections in a year, impeachment is unnecessary; let people vote in a year. Again, this works against the notion that the Founding Fathers established a Congress to save the people from their passions. Besides, Trump has shown indifference to the Russian meddling in the elections and requested for Ukraine to do so. What is the evidence that he would not, once again, abuse his power to his own electoral advantage?

Which brings us to the last action of hypocrisy. In 2016, Trump’s supporters told their friends wary of Trump’s recklessness that constitutional guardrails would be the remedies that would save us, that the checks and balances provided by the other branches would save the Republic. What exactly is an impeachment inquiry if not a constitutional guardrail, a check, and a balance?

Shay Khatiri

Shay Khatiri studied Strategic Studies at the Johns Hopkins University School of Advanced International Studies. He’s an immigrant from Iran and writes the Substack newsletter The Russia-Iran File.