Wednesday, November 13, 2019

Impeachment and the Presidency

Impeachment and the Presidency
Peter Schultz

            Like the presidency itself, the men who wrote the Constitution saw an impeachment process as necessary but dangerous. They knew that such a process could and would be used merely for partisan purposes and that such a process could and would cause intense divisions in the nation. On the other hand, they saw the necessity for providing for a constitutionally established process to remove culpable presidents or otherwise, as Ben Franklin noted, assassination would become a means of “removal.” If we look at the results of the impeachments of Andrew Johnson and Bill Clinton, it is safe to say that those men did their work well as both impeachments were intensely partisan attacks on presidents some thought of as illegitimate.

            Johnson, charged with a lot of things, most importantly chose to violate a law that was clearly unconstitutional, the Tenure of Office Act, passed by Republicans to keep Johnson from firing Stanton, his Secretary of War, as the Secretary of Defense was called when our politics was more honest. As John F. Kennedy wrote in his book Profiles in Courage, Johnson’s presidency was saved by the votes of seven Republicans who broke ranks with their colleagues, the most important vote – because it was most dramatic – coming from Senator Ross from Kansas. For his troubles, Ross had his reputation sullied and was not returned to the Senate. He even had to move from his home state to the New Mexico territory, where he was eventually made its governor. Eventually, people came to see that Ross’s vote was the right one and he regained his well-deserved reputation for integrity. The Tenure of Office Act was repealed twenty years later and it was declared unconstitutional by the Supreme Court in dicta when William Howard Taft was chief justice.

            Bill Clinton’s impeachment was even worse in that not only was he impeached and tried on trumped up – sorry for the unintentional pun – charges but the Republicans never actually intended to remove Clinton from office. That would have made Al Gore president and Gore would have run as an incumbent in 2000 and would have been entitled to serve two full terms as he would have become president more than halfway through Clinton’s second term. This impeachment was all smoke and mirrors and political theater aimed at allowing the Republicans to win the presidency in 2000. They weren’t even successful in that except that they had the Supreme Court and certain Florida officials on their side. The people, who chose Gore, weren’t fooled by the Republicans’ dog and pony show of an impeachment.

            And now we have the Trump impeachment, another attempt to remove a sitting president for merely partisan reasons. It will fail and it will in large part thanks to the process that was created in 1787 making the Senate the body to try impeached presidents. Senators have six-year terms, only 1/3 are up for reelection in any election year, and conviction requires a 2/3s majority. All of these provisions serve to protect Trump and rightly so insofar as his impeachment is as clearly partisan as were those of Johnson and Clinton.
            Two things are remarkable here. First, that the men who wrote the Constitution saw clearly the possibility that any impeachment process could and would be used for merely partisan purposes, arousing passions of such intensity that Franklin said would have led to assassinations were they not redirected into constitutionally approved processes. And, second, having seen these possibilities but still seeing the need for a removal process regarding the presidency, they were able to create a process that has, in at least two cases so far, worked as intended in short circuiting merely partisan attempts to remove sitting presidents. The Constitution is hardly a flawless document, especially when it comes to the presidency, but in this way it has proved to be more than adequate.

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