art_impeach_cole

By Robert A. Strong

Strong is the Wilson Professor of Politics at Washington and Lee University and is completing a book on the presidency of George H.W. Bush. Find more at strong.academic.wlu.edu.

There is a Republican talking point about the impeachment of Donald Trump that we now hear every day: “Partisan Democrats are trying to undue the 2016 election.” The Republicans are right. If the House of Representatives votes for articles of impeachment, with all or most of the Democrats voting yea, those Democrats will be seeking to change the results of the last presidential election.

But there’s a problem with this Republican complaint.

The whole point of impeachment is to make it constitutionally possible to remove from office an elected president. If it’s wrong to ever undo an election result, it’s wrong to have impeachment in the first place.

The Founding Fathers were smarter than the authors of Republican talking points (admittedly a low bar for them to cross).

The Founders considered eliminating presidential impeachment and allowing elections, and elections alone, to be the mechanism for the removal of a defective chief executive. The leading advocate for this position was Gouverneur Morris, a prominent Pennsylvania delegate to the Constitutional Convention. His argument was simple. A presidential impeachment would be disruptive, and it might be better to let the next election remove a flawed or failed president. Moreover, if the president’s appointees could be impeached, Congress would still have the power to tie the hands of a dangerous leader.

Morris listened to opposing points of view and changed his mind. He eventually joined the other authors of the Constitution in fulsome support for an impeachment clause in the Constitution.

There were compelling reasons for making it possible to remove an elected leader. Elections can be corrupt. They might be corrupted by a foreign power. A president could be on the payroll of some special interest. And then there’s treason. Not treason as that word is loosely used by Donald Trump, but actual treason as defined in the Constitution. The nation shouldn’t always abide by the results of the last election, or wait for a new one to occur, if presidents have significant power and ample opportunities to misuse it.

The Republican talking point against using impeachment to undo the last election is not just unfaithful to the preferences of the Founding Fathers. It has additional problems.

The argument that it would be undemocratic to overturn a presidential election skips over the fact that members of Congress are also elected. Do congressional elections not matter? There would be absolutely no talk of impeaching President Trump if Republicans held the majority in the House of Representatives. But they lost 40 seats in 2018. Surely some of the voters who produced the new majority in the House wanted congressional checks on Donald Trump and his administration.

The constitutional impeachment process pits one elected branch of government against another. It is not fundamentally undemocratic. It is part of the American political practice of making democracy complicated.

Government should serve the people and the nation, but the Founders never assumed that elections would always produce those good results. They understood that people — both those who govern and those who are governed — make mistakes. Leaders can do things that justify their removal from office; voters can be fooled when they choose such leaders. Elections need a backstop and that is what impeachment provides.

Moreover, the Founders fully understood that the Congress could misuse the impeachment power. They talked about that possibility at the convention. Because they feared an overbearing Congress, they made impeachment difficult to carry out. The House impeaches with a simple majority, but the Senate convicts with a super majority. Because partisanship — or factionalism as the Founders more commonly called it — could gum up the impeachment process, no president can be removed unless two-thirds of the Senators present find the president guilty.

Are super majorities democratic? Of course not. But they are part of the complicated version of democracy that the Founders favored.

The authors of the Constitution would not be surprised by Donald Trump (though they might have trouble figuring out Rudy Giuliani). They knew that George Washington would not always be president. Someday an anti-Washington would win an election. Then we would have problems. They would not be surprised by the narrow-minded factionalism of Trump’s defenders and critics. They predicted it, and created convoluted governing processes designed to limit the defects of parties and partisanship.

The Founders were realistic about human nature and about the virtues and vices of democracy. But they were not cynics or advocates of the systems of government that were clearly worse than representative democracy.

They tried to form a more perfect union and hoped that their complicated Constitution would facilitate enough serious deliberation, honest representation and responsible action to keep the republic alive.

We may soon see how well that hope holds up.

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