What Rises to the Level of Impeachability?

Photograph Source: Mike Maguire – CC BY 2.0

Despite Nancy Pelosi’s “prayerful” concerns and the cowardice of the party she leads, impeachment time has come at last! Republicans must now decide whether to flee their Dear Leader, like rats on a sinking ship, or to stand by his big and very stable brain.

As of now, the smart money has them remaining on board – agonizing over their own fates.

Agonize away, miscreants! When bad things happen to bad people, it “proves the heavens more just.”

Republican – that is, Trump Party — strategists, in the White House and Congress, know that defending Trump on the merits, on any merits, is out of the question.

They have also come around to the realization that, even with Fox and Worse behind them, they can no longer defend him by complaining about the procedures Democrats have put in place in their impeachment inquiries – not with “the revolution,” or whatever it is, about to be televised.

And so, by all accounts, they are about to concede that, yes, Donald Trump is guilty as charged. Since there will soon no longer be any remotely plausible way to claim that the Democrats have not been fair to a fault, they will stop harping on that too.

What they will do instead is insist that the case against Trump somehow doesn’t “rise to the level” required for impeachment.

But for the fact that hardcore Trump supporters are unmoved by reason and could care less about evidence, that line of defense would qualify technically as a “hail Mary pass.” Anyone who doesn’t know what I mean by that should check with the Chamber of Commerce or, better yet, the hapless mayor of South Bend, Indiana, home of the Fighting Irish.

Republicans, especially the Republican Senators now gearing up to keep Trump in office after the House impeaches him, seem to think that they can ride out whatever comes their way as long as the economy doesn’t turn south in time to matter in next year’s election.

They are also counting on the suckers Trump has bamboozled – in America, it seems, there really is one born every minute — hanging onto the belief that even if their man is an asshole, a swindler, and a moral reprobate, at least he is their asshole, swindler and reprobate.

Their expectations are not unreasonable. Evangelicals have been with Trump, the personification of all they supposedly abhor, since Day One; why not the rest of his vaunted base as well?

They will also argue, of course, that the Democratic nominee is too far out in left field to win.

That will be their contention even if, through some aberration in the light of reason, the Democrats nominate Joe Biden or that ridiculous South Bend mayor or any other “moderate” – in other words, anyone who defends the status quo within the Democratic Party and in the larger society by seeming to oppose at least some of what is driving the views of many potential Democratic voters far to the left of their party’s leaders.

Our “democratic” institutions make a mockery of such core democratic notions as political equality, equality of political influence, one person one vote, and so on; they also make it extremely difficult to reverse bad electoral choices, regardless what most citizens demand.

In line with that, Republicans, finding all other avenues exhausted, now want Trump’s fate to hinge on what counts as an impeachable offense. The trouble with that is that everything or nothing could, as it were, “rise” to that level.

What is impeachable is whatever the House and Senate say is impeachable. According to any remotely plausible reading of a Constitution that all sides claim to regard as the supreme authority on the matter, there is no principled way to gainsay their judgment; they are, for all practical purposes, more infallible than the Pope.

There has long been ample evidence supporting Samuel Johnson’s claim that “patriotism is the last refuge of scoundrels.” In the Land of the Free, we have scoundrels aplenty; in recent years, the escapades of George W. Bush and Dick Cheney, his éminence grise, produced a bumper crop.

But because Trump makes everything worse, Johnson’s contention must now be revised. Patriotism is no less noxious than it used to be, but, in our time and place, it is no longer the very last refuge of scoundrels. Lawyerly gobbledygook is. Who’d have thunk it?


When first developed more than a century ago, the jurisprudential doctrine now called “legal realism” was of a piece with the pragmatist philosophies of the time. Like the pragmatists, legal realists were naturalists. Thus, in their view, laws are not grounded in any special rationally accessible or theologically prescribed authority; they are, and ought to be, based on empirically accessible matters of fact.

As such, they are, in the final analysis, neither more nor less than, as Oliver Wendell Holmes famously put it, “predictions” of what courts will do.

For a long time now, most legal theorists have distanced themselves from views like Holmes’, arguing, in various ways, that reasons to respect laws and follow their dictates are defensible in their own right, irrespective of contingent matters of fact.

This is not the place to engage the several debates that raged around these issues, except to note that everyone involved in them took for granted the basic probity of the legal system itself.

Those who held that legal arguments are ultimately mere formalities that are justifiable or not depending on facts about human nature, the human condition, and the circumstances at hand, and those who claimed that they articulate rationally defensible substantive constraints on what courts my rightfully do, agreed that, for the most part, the American legal system could be counted on to do the right thing.

The American public thought so too.

Not only did confidence that this was the case run deep; for a long time, it seemed entirely justified. It survived Nixon and Reagan and the Bushes diminished, but still basically intact. The judges that Republican presidents nominated, retrograde as they often were, were still, for the most part, faithful guardians of the rule of law. Even the diminution of privacy rights and the attacks on civil liberties brought on by the Bush-Obama “war on terror” changed nothing fundamental in that respect.

But Trump makes everything worse. With the villainous Mitch McConnell doing the heavy lifting, and with the Republican Senate in tow, he has made assumptions about the basic probity of the federal judiciary a lot harder to sustain.

McConnell has done his level best to pack the federal judiciary with troglodyte judges, and the Trump-Barr Justice Department cannot be counted on to uphold anything like the rule of law, at least not when the matters in dispute involve Trump himself.

With two Trump appointees now joining the rightwing menagerie already there, the Supreme Court itself could soon follow suit. For years after Trump is gone, the consequences will reverberate.

What to do about this is among the most important questions of this historical moment; its urgency will become acute if all goes well, or at least not too disastrously, next November.

But with Trump’s defenders now reduced to playing a legalistic jibber-jabber card of their own contrivance, a low-grade battle is already on.

It has therefore become timely to ask what does “rise to the level,” as they say, of an impeachable offence? Liberal columnists in the “quality press” and the talking heads featured on the liberal cable networks – most of them former Republicans or unreconstructed Democratic centrists – nowadays write or talk about little else.

What they have to say, however, is not exactly clarifying.

For one thing, they tell us that impeachment is a political, not a legal, process. What might that mean?

It could mean that it is not about following precedents or legal principles, even if there were suitable ones to follow, but about doing what legislatures are supposed to do. On some not too outlandish views, that would involve trying to figure out what would be the best thing to do.

Engage that issue and it becomes glaringly obvious that it should be easy, not practically impossible, to get rid of a sitting president as awful and dangerous as the one with whom the United States and the entire world must now contend.

To hear leading Democrats and their media flunkies tell it, impeachment is such a monumental act that Nancy Pelosi and other Democrats who think like her, or say that they do, are, or claim to be, reduced to fear and trembling by the gravity of their task, even to the point of prayerfully asking (or, in case there is no one there to answer, thinking that they are asking) God for guidance.

The gravity of the situation is not caused just by the Constitutional strictures that make the impeachment process hard to execute. Democrats are at fault too; for their role in the bipartisan effort to take up where the Constitution leaves off – by turning impeachment into a quasi-legal process, after all.

This makes the whole business a lot like going after Al Capone for taxes. Capone, by the way, must be turning over in his grave, seeing a man not half the crook he was, getting away with whatever it is he is keeping the IRS from revealing. How ironic!

It was like that with Nixon too. Much of what he did was a lot worse than what he would have been impeached for, had he not resigned first. The disparity is even more extreme in Bill Clinton’s case. In his circumstances, can anyone really blame him for falling for Monica Lewinsky or even, to save his ass, for lying about it.

Now it is Trump’s turn. Reasons why he should be removed from office are as plentiful as the stars in the sky. If not quite with every breath he takes, then with every barely literate rant he tweets, he adds to their number.

But count on him being impeached for almost none of it, and certainly not for the worst things he has done. Indeed, Pelosi and Company seem about to insist that the House Judiciary Committee go no farther than some comparatively harmless extortion and obstruction of justice offenses.

In fairness, we do not yet know what the articles of impeachment that the House will finally settle on will be. But it is far more likely than not that they will barely scratch the surface of Trump’s iniquity. If Pelosi gets her way, they could well involve nothing more than Trump’s efforts to extort Ukraine for help in smearing the Bidens, Hunter and Joe.

One of the myths surrounding Trump is that he is, or was, a great businessman. What he was great at is taking advantage of the political juice bequeathed him by his father, his father’s cronies, and sleazeballs like Roy Cohn, weaseling out of debts to creditors, stiffing contractors and workers in his employ, and using bankruptcy laws to his advantage. Yet the myth survives, no matter how often and how compellingly investigative journalists make mishmash of it.

Another myth is that the Donald is a great political tactician. If he were, why would he target the one Democrat with any chance of becoming the Democratic nominee who could blow an easy victory in 2020 just as surely as Hillary Clinton did in 2016?

Biden is cut from the same center-right cloth as Clinton. The difference is that he is goofier and even more inept. He is also more “moderate” and “pragmatic – in other words, more rightwing.

It took a Clinton to lose to Trump; what kind of “very stable genius” could think that Biden, a lesser Hillary by any measure, is the biggest threat to his reelection now?

Democrats who favor Biden because they consider him more electable than Sanders or Warren or any of the other contenders seeking their party’s nomination are not exactly geniuses either. They are all confounding the skills of a political tactician with those of a snake oil salesman running a con.

That is what Trump is. That is how he built his base and how he keeps the thirty-five to forty percent of Americans who still support him on board.

He is not half bad either at recruiting and retaining his marks; for that, he is more than cunning enough. But if he thinks Biden is all that stands between him and a second term, he is even more of an idiot than he seems.

Meanwhile, Pelosi has taken the place formerly occupied by G-man Mueller in the imaginations of liberals and others who cannot wait for Trump to be gone and for the Trump era to be over.

The consensus among them is that, unlike Trump, she really is a master tactician. Apparently, Steve Bannon thinks so too. That is a good sign. Bannon is evil but, unlike nearly everyone else in Trump’s camp, he is capable of thinking clearly.

If the consensus view is sound, then, since removing the menace Trump poses – or, failing that, hobbling him beyond repair — is the most urgent task at hand, accepting Pelosi’s leadership on impeachment may actually be wise.

As a good liberal, she is useless for addressing systemic causes. But she can be good for dealing with some of their effects. Until the ambient political culture radicalizes a good deal more than it already has or soon will, there really is no alternative but to make common cause with her and her cohort, and to make the best of it.


This is not incompatible with also addressing matters beyond the liberal ken.

It would be a shame, after all, not to take advantage of the opportunity impeachment presents for making the impeachment question less about what Southern planters and wealthy merchants in the Mid- Atlantic and New England states thought some two and a half centuries ago, and more about what makes the most sense here and now.

If there is bipartisan agreement that impeachment should be treated as a legal, or quasi-legal, proceeding, despite all the talk about how it is a political, not a legal process, then now is a time to expose the incoherence of the consensus view, not to embrace it.

After all, unlike in true legal contexts, there really are no precedents that could plausibly be considered binding; there are no overarching principles that could be appealed to either.

Therefore, even if our legislators and others who talk about what does and does not rise to the level of an impeachable offense, are, for whatever reason, intent on mimicking proceedings in American courts, they are nevertheless free to create relevant precedents and principles as they go along, whether they realize it or not.

Now is therefore a time to go on the offensive against those who, whenever Constitutional issues arise, gravitate towards the “originalism” of the Scalias and the Kavanaughs and others of their ilk. What a strange bunch those bozos are! How odd that so many of them are Catholics defending what is essentially a Protestant ethos, according to which a sacred text, though susceptible to countless interpretations, is nevertheless deemed inerrantly correct.

This is one thing that cannot be blamed on Trump. The oddness of their thinking predates the Trump era; it is one of the few facets of our political culture that he has had almost nothing to do with and has therefore been unable to make worse. But, in order to keep his Evangelical backers on board, he has done all he can to give them the retrograde judges they crave – effectively normalizing originalist nonsense and making it the dominant view.

Thus, across what passes for a political spectrum, nearly the entire political class is, or claims to be, determined to work within parameters set by social and economic elites in a pre-industrial era, structured, in both the North and the South, by the exigencies of the Atlantic slave trade.

Needless to say, The Federalist Papers are well worth studying; there is much in them from which readers today can learn many things, including much that is relevant to legislators about to impeach the worst American president ever.

But none of it justifies viewing what the authors of the Constitution wrote, including the Constitution itself, as if it were Holy Writ.

We are not dealing, after all, with revealed truths, but with a philosophically insightful and relevant, but nevertheless historically particular, line of thought.

From the sixteenth century until the early nineteenth, Topic A for many of the best political minds in Europe, in France especially, was the suitability of various forms of executive power for different kinds of emerging nation states. The contenders were essentially those that Aristotle had discussed nearly two millennia earlier.

The authors of the American Constitution were immersed in that literature.

How ironic that what gave them the leisure to philosophize and then to concoct “a nation conceived in liberty and dedicated to the proposition that all men (sic) are created equal” was a slave economy — directly in the South, especially in Virginia, home of the most gifted thinkers among them, and indirectly everywhere else.

How remarkable too that, even nowadays, in on-going discussions about grounds for impeachment, hardly anyone comments on this. Even Black Lives Matter militants seem, on this issue at least, to excuse those founding fathers of ours for being in the grip of contemporaneous norms.

Evidently, we Americans, like those Enlightened late eighteenth century Virginians, are good at compartmentalizing.

The consensus view among nearly everybody who thought about the issue in that long-ago historical period was that the larger the political community, the more concentrated and powerful, and therefore the less democratic, a state’s executive branch should be. In the same vein, it was widely believed that, up to a point, democracy does better the weaker the state is.

Updating these thoughts somewhat, we might say that empires need a strong executive branch, and that democracies do better when the executive power is weak.

As everyone knows, the founding fathers wanted a republic, not a monarchy.

Of course, the monarchies they had in mind were not the benign, effectively powerless, kind that can now be found in the UK – note the irony there! – or in Japan or in the Netherlands and the Nordic countries. What they opposed were the absolutist monarchies of the emerging Western European nation states of the early modern period.

The founders wanted a republic, but they could already see that the country whose institutions they were constructing would discover its “manifest destiny” expanding westward, eventually controlling large swathes of the North American continent. They could already see that the United States of America would not be a republic in the classical sense. If anything, it would be the antithesis of that; it would be an empire.

But not an empire of the kind found elsewhere, seemingly from time immemorial. It would however grow out of an imperial project and was therefore in need of an executive stronger than the kind generally deemed appropriate for a democratically governed republic.

No doubt, this consideration at least partly explains why those founders were so ambivalent about impeachment; why they thought of it as something that should somehow be, at the same time, both easy and impossibly hard to do.

In a parliamentary democracy, a vote of “no confidence” would suffice to make short order of a rogue executive branch. That can sometimes be difficult to pull off too, but the founding father’s way compounds the difficulty many times over.

Or, rather it does, when the consensus view has it that the words of the founders, like the word of God, must be called upon to deem an offense impeachable.

Surely, the time is past due to put that notion to rest. Should it really be necessary to fashion legalistic arguments, grounded in indefensible premises, to rid the world, as swiftly and thoroughly as possible, of a president who poses a clear and present danger to life on earth as we know it?

Shouldn’t those who, at least on this, are effectively founders themselves simply be free to do what is so plainly the right thing, the more democratic thing, just because it accords with what reason, not ersatz Scripture, demands?

What rises to the level of impeachability? The short answer is or ought to be: pretty much everything Trump does.

ANDREW LEVINE is the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).