Cass Sunstein: “Pelosi’s Stance on Impeachment Needs Some Explaining”
The Constitution grants to the House of Representatives the “sole Power of Impeachment”. And later in Article II states that the President, Vice President, or any officer of the Executive Branch “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.
In the history of the United States, only two Presidents have suffered impeachment and a third came pretty close – Andrew Johnson, Bill Clinton, and Richard Nixon, respectively.
One thing I feel a lot of people forget about the Constitution is simply that it grants powers and lays a framework for the Federal government. Granting that power, however, does not imply an obligation to exercise it – but when does a government ever refrain from exercising power it’s granted (and even power it isn’t legitimately granted)? There is very little of Congress’s enumerated powers that it is obligated by the Constitution to exercise. As an example, Congress was under no obligation to declare war against Japan following the Pearl Harbor attack. And Congress, conversely, could declare war on anyone absent any justification if it so desired.
Yet when it comes to impeachment, in particular impeaching President Trump (and previously with President Bush), suddenly this power becomes an obligation, merely because those wanting to see Trump impeached are declaring it such.
Recently Speaker Nancy Pelosi said this about impeaching President Trump:
I’m not for impeachment. This is news. I’m going to give you some news right now because I haven’t said this to any press person before. But since you asked, and I’ve been thinking about this: Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.
Cass Sunstein, widely recognized as a constitutional expert, doesn’t seem to think the House of Representatives has any choice in the matter. That having the power to impeach the President means they have zero discretion and must act.
Yet when they must act is largely up to interpretation!
Under the Constitution, the grounds for impeachment are “Treason, Bribery, or other high Crimes and Misdemeanors.” Suppose that a president commits a clearly impeachable offense — by, say, committing treason or by using the apparatus of government to violate people’s rights and liberties. Suppose, too, that the president’s party remains intensely loyal to him, thinking, “True, he’s a jerk, but he’s our jerk.”
In those circumstances, the Constitution does not license members of the House of Representatives to refrain from impeachment, on the ground that it would not be “bipartisan” and would “divide the country.”
The Constitution absolutely and always licenses the House of Representatives to refrain from impeachment. They are POWERS, not obligations. And exercising power requires a degree of responsibility.
Let’s go back to the idea that Congress could declare war against any foreign power, for any reason or none. The Constitution doesn’t say Congress has the power to declare war only with sufficient justification. It says simply that Congress has the power to declare war. Full stop. Exercising that power is entirely up to Congress and their discretion.
In this light, it defies belief to think that the impeachment process is purely “political” — or that the House of Representatives may decline to proceed against a president who has engaged in treason, produced “the most extensive injustice,” or otherwise committed a clearly impeachable offense.
Except the impeachment process IS political since it is entrusted to a political branch rather than the Courts. In the two instances in which it has been exercised against a President, it occurred for political reasons, regardless of the evidence or justification behind the charges.
President Clinton demonstrably perjured himself, but his impeachment is continually misrepresented as having been about his affair with Monica Lewinsky. Despite the demonstrable perjury, though, that it was a Republican-led House that impeached him shows it was political. A Democrat-led House would not have considered impeachment.
Republicans in both instances of impeachment passed articles against a Democrat President. And a Democrat-led House pursued impeachment articles against Nixon. In no instance has a House of Representatives considered impeachment articles against a President with the same party.
So how is impeachment not political? Though I’ve said that impeachment is not to be used as a substitute for political or electoral failure, it is wielded by a political branch of the government, making it de facto political.
This is beyond true with Trump given that Democrats have been talking impeachment since before he was even inaugurated!
And to say the House of Representatives has zero discretion when it comes to impeaching a President goes against the very wording of the Constitution. Nowhere in the Constitution does it say the House has any obligation to impeach a President who has committed “treason, bribery, or other high crimes and misdemeanors”, only that they have the power to do so.
Power does not mean obligation.
Just as prosecutors are free to exercise discretion in whether and what charges are brought against a particular defendant, and generally won’t bring charges unless they feel they have a very high chance of securing a conviction. Since prosecutors know the same standard for bringing charges (“probable cause”) is not the same standard needed to convict (“beyond reasonable doubt”). So why bring charges without the evidence needed to convict? That is the prosecutor’s discretion.
So too the House has discretion in whether to let certain things a President does just go. That President Clinton perjured himself regarding an affair was not enough reason to see him removed from office. Borrowing Speaker Pelosi’s words, it was not “so compelling and overwhelming”, and it was far from “bipartisan”. And impeachment articles should really never have been brought against him since conviction was never going to happen. The impeachment and trial were colossal wastes of time.
And let’s go one step further: the Senate is not under any obligation to convene a trial on any impeachment articles the House passes. Again power does not mean, nor does it even imply, obligation.
It is hardly crazy to insist that if it isn’t clear whether the president has committed what the Constitution deems to be an impeachable act, the House is entitled to refrain from acting, at least when the nation is sharply divided along political lines.
You mean like it is currently? Yet your opinion piece implies the current Democrat-led House has an obligation to impeach Trump, and the Republican-led Senate has an obligation to try and convict him.
If a president has committed a clearly impeachable offense, the House of Representatives is obliged to impeach him — even if the process turns out to be “bipartisan” or “divisive.”
There’s one word missing from this sentence: provably. If a president has provably committed a clearly impeachable offense. But even then, again, the House is never under any obligation to impeach him. Just as no prosecutor is obligated to bring charges for any offense.
Power does not mean obligation. Indeed if there is any obligation the Constitution puts on the House of Representatives regarding impeaching a president, it is to decline to act where there is uncertainty.
The left and Democrats are so, so certain that Trump colluded with Russia to… convince tens of millions of voters to vote for him or refrain from voting for Clinton that they want to see him impeached. Because they desperately want to their belief to become reality. And Sunstein is no different in declaring the House has an obligation to impeach Trump and, by extension, that the Republican-led Senate has an obligation to try and convict him.
Yet no such obligation actually exists beyond mere assertion.
I’ve joked before that Trump merely being alive is an impeachable offense to Democrats. And now that the Mueller report has apparently not lived up to leftist expectations, I think we’re back to that particular standard again. Or they’re going to act like anti-vaxxers and keep peddling the “Trump colluded with Russia” narrative despite nothing concrete backing it up.
