Has a mental smog descended on certain socio-political tribes in the American population? It’s a kind of groupthink, and each group with shared interests and much else in common is smothered by it. Is it present at National Review, both online and print? The editors and many of the contributing writers seems to have taken for granted that “impeachment is political”, as if it is “only” political. But is it? I think not.
Ramesh Ponnuru, senior editor, in his piece , “Rush from Judgment” in the October 28 issue, repeats the boilerplate. If we accept impeachment as being political, I recoil in horror for its vicious consequences.
Impeachment wasn’t always considered such. It mustn’t have been since there were so few, and only 3 presidential ones in 230 years. “Political” impeachments would have to be, by necessity, partisan in nature, especially since the onset of political parties nearly at the gitgo (Federalist, Democrat-Republican). Still, the fact is, we didn’t have our first presidential impeachment till 1868 and it was under freak circumstances. The 40th Congress in the wake of the Civil War was awash in Radical Republicans waving the bloody shirt (Republican campaign tactic to remind voters of Southern and Democrat perfidy). 45 of the 53 Senators were Republican. The R’s dominated the House 143 to 45.
Yeah, the episode was political in a narrow sense but even the firebrands, chomping at the bit to get Andrew Johnson, had to pay heed to statutory violations, all emanating from the recently passed Tenure of Office Act, over Johnson’s veto. Certainly, the Act was an impeachment trap, but even they couldn’t rely on Johnson’s alleged drunkenness and overall instability in office to remove what they considered to be a huge political obstacle. There’s something about impeachment that Ponnuru and company miss. Our current chattering classes omit an earlier and widespread understanding that politics wasn’t nearly enough.
It can’t be boiled down to Ford’s specious dictum: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford was foolish, and so would we be to take it seriously.
Today, it’s become fashionable to reduce impeachment to politics, the easier for our social betters, deeply entrenched in our cultural centers and DC, to get Trump. If you think about it, the “politics” of impeachment stare at you in the face. The two political houses of the first branch get to pass judgment on the second political branch. They are political in nature, with their political parties and partisan fights, and are given the power to remove a president. The situation lends itself to political shenanigans; however, there’s more to the story.
Government cannot avoid “politics”, despite the progressives’ futile crusade to insulate as much of the state from the grubbiness of politics. As we learned recently, all they succeeded in doing is creating a political and unaccountable administrative state. Politics never disappeared; it just entered the bloodstream of the ever-expanding Leviathan.
Come to think of it, the third branch (judiciary) isn’t above the muck of the political sewer since many state and local judicial posts are elective posts and the federal judiciary all the way up to the Supreme Court is caught up in the power of legislating. Speak “government” – any part of it – and you will be bellowing “politics”.
“Politics” is not all there is to government, though. We get a hint in our professed belief that we are a nation of laws, not men. Overhanging the messiness of the politics of law-making is the principle of equity (basic impartiality), and after the the law is produced, the law’s adjudication demands more equity in the form of due process. We’re not perfect in our legislation. Samuel Johnson exclaimed that sometimes the law is an ass. Nevertheless, bounds are placed on our penchant to enlist the state in service of our demands at the detriment of others.
Similarly, bounds are placed on the act of impeachment. The actors are political but the process isn’t. The thing shadows normal jurisprudence. The charging power (impeachment) is in the House and a trial is conducted in the Senate. The Constitution outlines the statutory violations of “treason, bribery, or other high crimes and misdemeanors”. At the time of the Constitution’s writing, the new federal Congress didn’t exist and therefore it hadn’t produced a single word of statute. Thus, the list of transgressions had to be general in nature, but are still statutory nonetheless. As in a regular court hearing that it adumbrates, regular due process can’t be ignored. Congress can’t do whatever its little political heart desires.
Yet, Ponnuru tries to bolster his case for “political” impeachment by dredging up the 1804 impeachment and removal of Federal District Court Judge John Pickering. Ponnuru gets the incident wrong by distilling the case against Pickering to one of “low character”.
But what of Pickering’s “low character”? The “low character” was one of observable deterioration of mental capacity, instability while performing official duties, rulings glaringly discordant with standards of jurisprudence, drunkenness behind the bench, etc. The guy was a mess and didn’t live up to his oath of office. The problem was so noticeable to staff and the other judges in the federal circuit that they acted to suspend him by moving his caseload to Circuit Judge Jeremiah Smith. Pres. Jefferson sent the evidence to impeach to Congress and it quickly became embroiled in the partisan food fight between Federalists and Democrat-Republicans. Still, if impeachment can’t be applied here, it can’t be applied anywhere, regardless of the spit and fuming of the parties.
The “low character” of Pickering is something far more than the bumbling and coarseness of Trump; something far more than a rambling phone call to the Ukrainian president.
I suspect that a residuum of animosity exists among the editors of the magazine against the “imperial presidency” (completely understandable) alongside Trump’s 2016 attack on the magazine. If so, I’m with you, but I can’t make my indignation a selective one. Essentially, all 20th and 21st century chief executives – with the exception of the 1920’s execs – abused their powers for over a hundred years, and so deserve the adjective “imperial”. Theodore Roosevelt saw himself as ringmaster of his own political Barnum and Bailey Circus. Woodrow Wilson gave us War Socialism, which was an extension of is own vastly expanded Leviathan. After a brief interlude in the 1920’s, the electorate foisted FDR upon itself for four terms.
And, ohhhh, there’s FDR. He presents a special case of defilement of the Article II powers. Not only was he given carte blanche to destroy something that was rationalized as farm “surpluses” (march livestock to the death pits, bribe people not to be productive) in the Agricultural Adjustment Act – thus giving “adjustment” a sinister ring – and to impose socialistic cartelization on nearly the entire American economy in the quasi-fascistic National Industrial Recovery Act, he was profligate in the application of his new-found powers for his personal political benefit. He was famous for lavishing taxpayer largesse on supporters and rejecting it for opponents. No wonder the guy got four terms.
We ought not to leave this very special political specimen without mentioning his persecution of Samuel Insull. Just like the Elizabeth Warrens of today, FDR wanted scalps for the Depression in a grotesque display of unrestrained reductionism and vicious class warfare. Insull was a successful businessman with his own holding company (the industrial equivalent of a broad-market mutual fund) that was responsible, by the way, for electrifying much of the country. It collapsed in the market crash, thousands lost their investments, and FDR was elected as the avenging demon. Insull fled. Our president-as-tsar went hither and yon to hunt him down, using his executive powers for a political vendetta in a manner that would make George III cringe.
Well, His Majesty’s imperial guard caught up with Insull in Turkey and brought him back in irons. Insull was soon marched off to 3 separate trials and before judge and jury was promptly acquitted of all charges. Is there a moral to the story? It might be that the innocently accused will win in the end (or, then again, maybe not), but not till after personal ruination. He died penniless in a Paris subway in 1938.
Do I need to mention LBJ, Nixon, and Clinton? Clinton had a hard time keeping his fly zipped, was caught in flagrante delicto with an intern, feebly tried to intimidate witnesses, and lied before a federal grand jury. He was allowed to finish his term, but a warning to minors was issued (probably unsuccessfully as per the Epstein case).
Going further down history lane and we arrive at Obama. Is it any surprise that a community activist would give us a community activist presidency? Let’s see, we had Fast and Furious, which was an attempt at entrapment of the Second Amendment. A border agent got killed in that one. Let’s see, there was the use of the IRS as an attack dog against Tea Party opponents. Let’s see, there was Obama’s discovery of his “phone and pen” to issue imperial decrees. And, finally, let’s see, we had the recruitment of the intelligence agencies and the FBI into his Praetorian Guard in a bid to defame Trump. A full accounting has yet to be written for that sordid tale.
And then there’s lowly Trump. He’s accused of soiling the office in a feeble and rambling conversation with the president of … Ukraine, of all paces. Trump comes off as a piker when compared to his predecessors.
Expect more excursions into impeachment-based political vengeance if impeachment is distilled to mere politics. Our penchant for divided government (different parties controlling different branches) would create a conga line down impeachment lane. Every two years could produce the precursors of impeachment lynch mobs. Is that what the Framers had in mind? Is it healthy for our system of governance to be constantly on the brink of volume 11? Once we become inured to the political cannabis high of impeachment, what’s next? The meth of civil war?
Nothing good can come of “political” impeachment. It’s not only wrong. It’s dangerous.
RogerG
