The old case for the impeachment of President Trump has languished for lack of evidence that he conspired with the Russians, Robert Mueller not having tied together the dots, even though there were so many of them. Why so many contacts with the Russians that Trump’s aides and associates lied about? What was to be found in his tax returns or in Deutsche Bank records? Mueller said that he didn’t go into either one because it was outside his purview, but I don’t see how that could be the case. Those records could show if there was any financial advantage for Trump in cooperating with the Russians or any disadvantage if the Russians did not see him as cooperating with them. There is also the legal question of whether there can be obstruction of justice when there is no proof of any underlying crime. And so the various House Committees try to unearth what Mueller did not. It seems a futile quest and unnecessary if the election of 2020 will unseat him even if Jerry Nadler insists that he is indeed engaged in an impeachment inquiry and more than half of Democratic House members think Trump should be impeached.
There is, however, a new cause for impeachment which has arisen very starkly in the past few months, and here we enter into uncharted territory. The first issue is Trump’s treatment of refugees at our southern border. The gravamen of charges that could be leveled against him is that he has engaged in willful child abuse and even negligent mansslaughter and all this has been done in violation of numerous statutes on the books concerning not just those crimes but also the treatment of people seeking to enter the United States to seek asylum. So he is in violation of the law, even if his policy has the support of the Republican led Senate. He is also violating the law in that he made money from the July Fourth Celebrations that he ordered and that he has also ordered people to defy legitimate Congressional subpoenas.
But it is more than the law that he is violating. He is in defiance of long held American values. He wants to divide Americans across racial lines even though he denies that is the case. He uses the same kind of talk in his tweets and speeches that a white terrorist does in his manifesto just before the terrorist went on a rampage in El Paso so as to kill Mexicans. Trump goes after politicians who have the temerity to disagree with him, even as he is on an airplane tour of cities hit by violence. He is not a comforter in chief and he is not legislator in chief because he does nothing to achieve his own announced policy of creating background checks. He is both incompetent and a disgrace to the country over which he presides. Even his supporters will agree that he is not an admirable man.
Moreover, El Paso reminded the citizenry of just how toxic it is to have a racist in the White House. I will not quibble over whether we know him to be a racist in his heart rather than someone who finds it useful to mouth racist phrases. A duck by any other name is still a duck. The American people may think his racism is salient today when it was just a diversion when he was elected, as if we didn’t know from history that when leaders say vile things about ethnic groups, believe them. Is there no legal remedy to this problem? That is the true essence of the quandary which the American people now face.
All previous impeachments have been based on the violation of law, even if it was a stretch to say that Clinton had violated the law in that he testified truthfully about what “having sex” meant in Arkansas. It meant trying to give pleasure to your partner, which is not what he was doing with Monica Lewinsky. Here, the basis of the case about Trump is that he is mean and ignorant, that he has contempt for his fellow politicians, and that he is not to be trusted with the levers of power. These are not violations of law, though they are violations of what we think of as the grandeur of the Presidency. He is not to be trusted with the office and should be gotten rid of because he might get us into serious trouble with his reckless ways. That is the real case against him: that he is unsuited for office even if the people at one time thought he was and only the impeachment process is available for that purpose because the Twenty Fifth Amendment was designed to get rid of a President because of an incapacity such as Wilson’s stroke, not for political reasons. Is there no relief from someone who is simply a bad man who diminishes us all by his presence in the office?
But to impeach him without a legal case, just a moral case, endangers the idea that a President is elected for a fixed term and that he can be replaced after one term with an election. Otherwise, we would be making the President subject to a popularity vote in the legislative branch, which is the equivalent of a vote of no confidence in a parliamentary system, and that is precisely what the Founding Fathers were out to avoid when they established the three branches of government. (It is also the case that the English Parliament had not at that time yet evolved to the point of having votes of no confidence.)
The Constitutional phrase “high crimes and misdemeanors” is murky. Does an action have to be either a crime or a misdemeanor or both to qualify for impeachment? And what does “high” mean? It could mean that ordinary crimes like murder do not qualify even though it probably does mean that parking tickets do not. The phrase, taken as a whole, was understood at the time it was put into the Constitution as a term of art, but what were its parameters? In English law, it could cover misappropriating funds, appointing unfit subordinates, not spending allocating money, or other deeds that would not today seem to meet the standard for impeachment, requiring instead some legislative reaction to provide a check on Presidential bad deeds. The Founding Fathers are not very helpful in providing parameters. Ben Franklin thought the phrase referred to when a Chief Executive had “rendered himself obnoxious”. That could be taken to mean that the President had become unpopular rather than guilty. Hamilton set a higher standard, the phrase applying to “injuries to the society itself”, those supposedly ones that could be spelt out in detail and, therefore, subject to rational discussion.
I turn for the elucidation of the high crimes and misdemeanors clause in the U. S. Constitution to Woody Allen’s movie, “Crimes and Misdemeanors” rather than to some legal tome. In that movie, the protagonist has his mistress killed because she is about to spill the beans to his family. He comes to feel remorse but there are no other consequences. In a parallel plot, a nebbish played by Allen doesn’t understand why he misses opportunity after opportunity to make something of himself as a documentary filmmaker. He gives up on a film about a wise man patterned after Primo Levi when he learns that his subject had committed suicide. Nothing bad happens to him, but nothing much good either. So the Allen doctrine is that people commit crimes, which are discrete bad events, and that they can be forgiven for that, while other people commit misdemeanors, which are failures of character, and there is no forgiveness for that because that is just the way they are. All people can do, Allen imagines, is to be serene, accepting that crimes are forgiven, misdemeanors are not, and that serenity can also be achieved by people who have to face adversity through no fault of their own, like the good man who goes blind but dances with his daughter at her wedding.
Apply this logic to Trump. He may or may not be guilty of the crime of conspiring with the Russians and his attorneys argue that the Trump Hotel in Washington does not violate the Emoluments Clause. But he is guilty of a misdemeanor, which is a set of character flaws that make him unable to be either comforter in chief, because he cannot but take on political squabbles when visiting a site of mourning, or negotiator in chief, because he doesn’t really have a clue to what tariffs are, or even politician in chief because he doesn’t know how to work the levers of power that would get what he wanted done rather than what his Senate and House allies want. He cannot get over these deficiencies. We go back to the question of what would happen if there were a real crisis to manage. We cannot expect him to do what lackluster predecessors did, which is to rely on their Cabinets. Is there no remedy but the next election?
I am afraid not. The Founding Fathers supply us with no relief, however foresighted they were in other matters. We will have to wait it out until the next election, keeping our fingers crossed, and then the result will depend on the Democrats uniting well enough so that they can beat Trump rather than squabble among themselves. They are the ones who will have to take Trump as a threat to our political society and address him as such and for the moment only Joe Biden is putting the election on that level, as the final recourse of a people for whom their President has become obnoxious.