The president of the United States routinely orders his subordinates to subvert the law. He believes that the Justice Department should comport itself as his personal detective agency — and that the attorney general’s first responsibility is to protect the White House from legal accountability. And he has used one of his office’s most extraordinary powers — the authority to pardon convicted criminals — to undermine a federal investigation.
These realities were already apparent before Robert Mueller’s report was released Thursday. But they have now been formally confirmed by federal law enforcement. The branch of government responsible for enforcing the rule of law is led by a man with contempt for that very concept. Congress’s constitutional obligation in this circumstance is unambiguous. The president swore to “faithfully execute” the duties of his office. He has not. Thus, Congress should evict him from that office.
This would be true even if Donald Trump displayed no inclination to persist in his lawlessness. But he is displaying the opposite. Impeachment is therefore required not merely to punish the president for his past indiscretions — or to deter a future president from emulating them — but to halt the rampage of a serial offender. During his press conference (and/or lurid apologia for the president) on Thursday, Attorney General William Barr suggested that Trump’s various attempts to undermine the Russia investigation were understandable responses to an unprecedented situation. But the president does not defy the law exclusively in self-defense. Just this month, Trump fired the secretary of Homeland Security because she refused to entertain extralegal options for deterring undocumented immigration. More audaciously, the president also (reportedly) instructed Customs and Border Protection commissioner Kevin McAleenan to deny Central American families their legal right to seek asylum — and promised to pardon the CBP chief should anyone try to hold him accountable for this crime.
There is no defensible argument against impeaching this kind of president as a substantive matter. The only debate worth having concerns the political merits of such an endeavor.
House Democrats appear to believe that, in the present context, upholding their constitutional duty — by voting to remove a lawless president from office — would be politically unwise. Their reasoning goes something like this: Recent polls suggest a majority of the public wants Congress to “move on” from the Trump-Russia saga and opposes impeachment. Meanwhile, the impeachment process would eat up precious space in the legislative calendar, which could otherwise be used to hold public hearings on more politically resonant aspects of executive-branch malfeasance, and pass popular legislative proposals. And, most important, there is every reason to believe that a push for impeachment will end with the Senate acquitting the president. Which is to say: To the extent that the impeachment process would register at all with low-information swing voters, it would likely register as an unresolved partisan squabble. Trump’s malfeasance is surely a political asset for Democrats. But the president’s lawlessness isn’t subtle. Anyone who is willing and able to see that Trump is a crook already has. Better then to focus the party’s messaging on bread-and-butter issues that might speak to voters who are indifferent to Trump’s corruption.
I’m not sure that I accept this argument. But it strikes me as plausible. And if we stipulate that the president is a criminal (in spirit, if not legally provable fact) — and that Senate Republicans are, nevertheless, opposed to removing him from office — then the Democrats’ overriding civic obligation is to maximize the probability of their victory in 2020. All else being equal, it is more important to actually remove a would-be autocrat from office than to formally demonstrate one’s commitment to doing so.
All of this said, if House Democrats are taking the position that the Republican Party is so corrupt — and our system of checks and balances so obsolete — it isn’t even worth trying to uphold their constitutional responsibility to impeach a lawless president, then they need to acknowledge the radical implications of that stance.
If there is no bipartisan consensus on upholding the rule of law, then bipartisan consensus is not an end worth pursuing. If the Republican Party can’t be trusted to even consider putting its allegiance to lawfulness above its fealty to Donald Trump, then the GOP is a cancer on the body politic. And if our Constitution has brought us to the point where a non-democratically elected president can promise “Get Out of Jail Free” cards to anyone who violates laws he does not like — without facing any serious threat of removal from office — then our Constitution is obsolete and there is no cause for treating that document, or the established norms of our institutions, with reflexive reverence.
This is not an idle point. In recent weeks, many moderate Democratic senators have argued that their party should never abolish the legislative filibuster — because the Senate’s 60-vote threshold is a well-established institution that combats political polarization by forcing lawmakers to embrace bipartisan compromise. This argument fails on its own terms: The automatic 60-vote requirement for nearly all legislation is an invention of the 21st century, and its establishment has not coincided with a golden era of bipartisan compromise, but rather of gridlock and dysfunction.
But let’s ignore that for a minute. Let’s say the legislative filibuster (as it currently exists) is an age-old institution. Let’s say it effectively requires all major legislation to have some measure of bipartisan buy-in. If our established institutions have proved incapable of disciplining a president who disrespects the law, why should we presume the propriety of those institutions? And if there is no bipartisan consensus against allowing Republican presidents to flout the law, then what good is bipartisan consensus? Why should Democrats be compelled to forever and always give the GOP input on making laws when the two parties do not even share a commitment to the rule of law?
In other words, congressional Democrats’ fatalism about impeachment — and their reverence for institutional norms and the ideal of bipartisanship — are irreconcilable. And that has implications for much more than the debate over filibuster reform. It implies that commitment to small-r republican values requires prioritizing the GOP’s disempowerment over the preservation of institutional norms. If Democrats have the power to reduce the Republicans’ structural advantage in the Senate by granting statehood to D.C. and Puerto Rico on a party-line vote, they must do this. If the conservative judges continue to abet the GOP’s efforts to insulate itself from popular rebuke through voter suppression and gerrymandering, then Democrats must be prepared to reform the judiciary.
Democrats can insist that impeachment is a hopeless cause. And they can sing paeans to congressional norms and bipartisan comity. But if they do both, they will confirm that their party is just another one of our republic’s failing institutions.
