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A Different Impeachment

Photograph Source: Phil Roeder – CC BY 2.0

For over two centuries, the American military has protected us by protecting our nation. Now it is time for the nation to protect the American military, by removing Donald Trump from the Presidency.

There are three schools of thought on impeachment. The strict legality standard holds that impeachment is the only remedy for punishing a sitting president (given his constitutional immunity), so removal should come whenever he or she substantially breaks the law.  The priority is to prove the president is not above the law.  Alternatively there is a long growing school that sees the US as an elective dictatorship and above the law, with only politics to hold back the executive branch.  In this view, an impeachment must be seen as, essentially, a special election with the Senate sitting as Electoral College.  Finally, it may be that impeachment does not exist to punish an individual for wrongdoing, but to save the nation from disaster.  Although I favor the first view, I will make the case for the third in order to show that removal should prevail by any standard.

 Strict Legality

Impeachment is justified by high crimes and misdemeanors, and two examples are specified, treason and bribery.  Mr. Trump’s proposal to the Ukrainian president falls in the latter category.  The facts are hardly disputed.  Indeed, he repeated the offense publicly.  The law is clear enough about foreign aid being public tax money, and campaign support being a private good, so there is no chance that this is ordinary diplomatic arm twisting.  Even Mr. Trump’s staunchest Congressional allies rely mostly on impugning the intentions of the opposite party, rather than denying actual guilt.

Remember, though, that impeachment is a constitutional process, not a criminal trial.  Even Neal Katyal, probably the most authoritative advocate for impeachment, concedes that severity of the crime must be weighed.  Actual criminal guilt does not require impeachment, any more than impeachment requires commission of an actual crime.  This is underlined by the fact that impeachment and removal carry no criminal penalty – no fines can be imposed and no jail time is possible.  Judging severity is part of the process.

Above the Law

If the president is above the law, the constitutional provision for impeachment merely describes the pretext for a special election.  The House acts as a yes or no cross party convention, and the Senate sits as an off year Electoral College, with everyone in Congress reading the latest polls to estimate the political implications for elections in the future.

During the last Bush administration, John Yoo and others attracted attention with the claim that the US president is an elected dictator.  The Founders were at some pains to prevent “elective despotism,” but Yoo would have it that they failed.  Actually, this school of thought descends from Carl Schmitt, whose “theory of the exception” holds that the future is too uncertain and dangerous for legal-rational government to handle, so the executive (or, in principle but rarely in practice, a collective body) must be excepted from the rules in order to respond.  Thin disguises for this reasoning include language like “presidentialism,” and “unitary executive,” and talk about “what we don’t know we don’t know,” or “unknown unknowns” that require a “decider” to lead us in a world that is no longer “reality based.”

Donald Trump is no philosopher, and the neocon advocates of rule by exception have often despised him.  But Mr. Trump’s most persistent trait is his determination not to be controlled.  This endears him to everyone tired of being guilt tripped by political correctness, but also makes him refuse to be held even to his own words.  His compulsively arbitrary behavior was bound to call for a philosophy that justifies arbitrary rule, and the exceptionist view was built for the purpose.

Yet even this standard cannot dismiss the legitimacy of constitutional impeachment.  To do so would mean ignoring the “elective” aspect of this supposed dictatorship.  If the president can ignore impeachment, he can just as easily cancel the election.  At that point, the argument falls completely into the hands of Schmitt’s authoritarianism.  His scholarship was impressive, but led him to conclusions his acolytes do not have the courage to admit are implicit in their own positions.  Despite considering himself a modern theologian, Schmitt revived the idea that any sovereign is God on Earth, and took his definition of politics as murder forestalled so far that he denied Jesus told us to pray for our enemies.

Either the above the law view admits election and impeachment, and arguments about how severe a situation must call for change, or they must admit being outright anti-constitution.  They may need to re-write the Bible, too.

Emergency

In this view, deliberation about impeachment and removal includes judgments similar to those a court makes about an emergency restraining order.  There must be evidence of misbehavior, or there is nothing that would bring the person before the court.  But injunctions are drastic interventions into the course of people’s lives.  They are not to be issued unless some imminent and irreparable harm will be averted.  Impeachment puts the nation, through its Congressional representatives, in the position of deciding whether to intervene in a President’s normal term of office.  Some major misbehavior must be found, but the question must still be asked, “Does this call for such serious action?”

However, that also means it is legitimate to weigh the future implications of failing to intervene.  Failure to intervene now would be catastrophic.  Mr. Trump cannot afford to stand for election unless he is certain of victory, and that certainty is almost impossible to achieve.  Therefore, he has been working steadily to undermine the separation of powers, and assert that his commander in chief status allows him to give the military illegal orders and demand that they obey.

There is virtual indictment waiting for Donald Trump whenever he is promoted from President to citizen.  His co-conspirator, Michael Cohen, has already been convicted.  The sentencing memo in Cohen’s case does not use the president’s name.  It identifies him as “Individual #1,” who later became President of the United States.  The statute of limitations on that charge ends after January 20, 2021, the date at which Mr. Trump will step down if not reelected.  Arguably, this virtual indictment “tolls” the statute of limitations, meaning that he could still be tried when leaving office in 2025.  Since it has never really come up before, it could also be that presidential immunity is so broad that it must itself toll the statute.  All of that is before considering the possible state charges.

Mr. Trump can solve this problem if he can get the military to break the law, and he is working on that steadily.  Ordering funds diverted from the military to wall building asserts that he can overrule Congressional budget authority and the military will obey.  Pardoning service people the military has found guilty of war crimes teaches the troops that they can break the law if he says so.  Announcing that he was planning to bomb Iranian cultural sites had no military or political point at all.  It only asserted that he could order commission of a specifically defined war crime.  The military pointedly announced it would not attack cultural sites.  In other words, had the Iranians reacted differently, the US would have been pulled into a war hobbled by an unstable chain of command due to the self-serving machinations of a lawless president.

Conclusion

The strict legal standard requires a judgment about severity of a presidential high crime.  The belief that the president is above the law calls for political arguments, the most profound of which must be the danger the nation faces if the president is not removed.  Therefore, both of those standards must concede some role for the emergency standard.

And the emergency is both massive and imminent.  Mr. Trump is actively seeking to persuade the military to be loyal only to him.  Their oath is to defend the constitution against all enemies foreign and domestic.  If not removed, will he relent?  No.  Will we leave the military, and therefore the nation, in this deep moral peril, or will we stand up and defend them now, while we can still do it without bloodshed?

Scott Corey received his PhD in Political Science from UC Berkeley, and now works for a nonprofit human services in rural California.

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