House Speaker Nancy Pelosi is in a bind. A restive, and growing, number of Democrats are clamoring to impeach President Trump. Pelosi, the street-smart operator that she is, believes this is a political trap and so far has managed to keep impeachment confined to talk shows, not congressional hearings. But now outgoing special counsel Robert Mueller has — wink wink, nudge nudge — effectively invited Congress to impeach the president. After all, Mueller didn’t have to say anything as he closed up shop. He certainly didn’t have to make a point of saying that he hadn’t cleared Trump of obstruction of justice. And he certainly didn’t have to make a point of saying that Department of Justice rules forbade him from indicting a sitting president. And he definitely didn’t have to point out that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
If this isn’t an invitation for Congress to pursue impeachment, it’s hard to know what would be. Must it be engraved?
So what should Pelosi do? She can count. She knows polls shows most American believe Trump has committed crimes, but most still don’t want him impeached. Now, the public’s mind might change, but politicians’ minds probably won’t. She knows the U.S. Senate — 53 Republicans, 47 Democrats — will never muster the two/thirds majority required to remove Trump from office.
Some impeachment hardliners say that shouldn’t matter. They insist it’s important for the House to declare for the historical record that Trump has committed impeachable offenses, lest future presidents try to emulate his behavior. Pelosi, though, remembers what happened the last time the House impeached a president — it backfired politically. In that case, in 1998, it was Republicans who had impeached but failed to remove Bill Clinton — and Democrats who subsequently defied historical trends to pick up seats in the House elections that fall. Pelosi likes her party’s majority in the House and would like to keep it. The speaker thinks the best way to remove Trump is by defeating him in 2020, and fears that impeachment would only make that harder. Trump declares the Mueller Report exonerated him, but it certainly did not (on collusion with the Russians, yes, but not on obstruction of justice). When the Senate votes by a slim majority to reject the House impeachment charges, Trump would then be able to declare that he had been “cleared” of obstruction, as well. For him, impeachment would result in a rhetorical victory and Pelosi sees this more clearly than many Democrats. For her, practicality triumphs over idealism.
So how can she hold the impeachment enthusiasts at bay? She could call up one of her former colleagues, Rick Boucher, who was from 1983 to 2011 the Democratic congressman from Virginia’s 9th Congressional District. Why Boucher? Because back in 1998, it was Boucher who advanced an alternative to impeaching Clinton. That alternative was censure.
Back then, it was Republicans who were gung-ho to impeach Clinton and Democrats who were keen to avoid it. Boucher proposed that the House censure Clinton instead. Definition time: Censure is a resolution with no force of action, but it’s meant to be a weighty judgment, not a routine declaration of National Pickle Week. Censure resolutions are not passed lightly. Only twice has a chamber of Congress ever censured a president and both times were in the 19th century.
In 1834, the Whig-controlled Senate voted to censure Andrew Jackson — a Democrat —for failing to turn over certain documents that the Whigs felt they were entitled to see. (Sound familiar?) Jackson, as tempestuous as our current chief executive but lacking a Twitter account, railed that the action was unconstitutional because it was never mentioned in our founding document. (True, but neither are lots of things.) The censure resolution roiled the politics of the country; the backlash against it is said to have contributed to the Democratic takeover of the Senate in the next elections (another cautionary tale). One of the first things Democrats did was to take a controversial vote of their own to expunge the censure from Senate records.
A lesser-known presidential censure came in 1848. The Whig-controlled House voted to censure James Polk — another Democrat — for “unnecessarily and unconstitutionally” starting the Mexican War. One of congressmen promoting censure was a freshman from Illinois who would figure later in American history — Abraham Lincoln. In theory, violating the Constitution would constitute an impeachable offense; however, the Whigs also knew impeachment wouldn’t go anywhere because Democrats controlled the Senate. So they censured Polk instead. Some politics don’t really change. It’s unclear why that censure never created the controversy the Jackson one did; likely because Polk was a more temperate personality who could bask in this knowledge: The U.S. won that war and not many complained about the results. California, Arizona, New Mexico, Nevada and Utah were worth a censure.
For Democrats in 2019, a censure resolution offers a middle ground: They could state for the historical record that they believe Trump has committed impeachable offenses — those obstruction of justice issues Mueller referred to — but not actually have to go through with a no-win impeachment case that might cost them at the polls. For those who fear that no action means setting a precedent about future presidential conduct, this would be an elegant solution. What few moderate Democrats who remain might embrace this as a way to pacify their more liberal colleagues. Historical irony: The liberal group MoveOn.org started in 1998 as a result of a petition in support of censure — basically censure and then move on. Republicans back then had no interest in Boucher’s resolution; they wanted impeachment and got it. Still, it’s worth reading Boucher’s rationale for censure, which ran in an op-ed in The Roanoke Times in 1998: “The president has diminished his personal dignity and that of the office of the presidency, brought the presidency into disrepute, impaired the image of the president as a role model for younger Americans and generally caused enormous embarrassment to himself and the nation.”
Boucher was right about Clinton in 1998. Do those same words apply to Trump in 2019? If so, Democrats have a way out of impeachment — if they really want to find one. Trump probably secretly hopes they don’t.