A Politically Motivated Impeachment Is No Laughing Matter
Why do otherwise smart people say that impeachment has nothing to do with crimes but is rather a brute political calculation?
As one example out of many, Kimberley Strassel of the Wall Street Journal said Wednesday on “Tucker Carlson Tonight” that Congress “could impeach the president for laughing the wrong way. They can impeach for anything they want.”
Well, actually, no they can’t. Not unless they pass a law first that says “laughing the wrong way” is either a high crime or a misdemeanor. Assuming that “high” is not an early constitutional reference to cannabis, then laughing is unlikely to be a crime of any sort, yet our pesky Constitution does insist that impeachment shall proceed only on the basis of “Treason, Bribery, or other high Crimes and Misdemeanors.”
The notion of impeaching a president — any president — on the basis of a political disagreement is unconscionable, or should be. Yet we have watched Democrats and the media scurry from one “impeachable” offense to another over the last three years, hoping that one might stick. It has all the appearance of being a punishment in search of a crime to justify it.
So now we come to WhistleblowerGate and the Ukrainian corruption scandal. Let me see if I have this right: We are going to impeach President Trump because he asked the Ukrainian president to look into allegations of corruption involving a former vice president of the United States — and possibly a former secretary of state, Hillary Clinton. That, to me, is weird. You would think we would all want to know if there was anything to the complaint against Joe Biden for pressuring Ukraine to fire a prosecutor who had oversight of the investigation of Biden’s son Hunter. Likewise, it is reasonable to think that if the Deep State coup against President Trump in 2016 had an outpost in the Ukraine, we would like to know that too.
But no, apparently not. Instead we are told that Biden has bought himself immunity from any future investigation by the executive branch on the grounds that he is running for president, and therefore a political opponent of the current president. According to Swamp logic, it is a political dirty trick for President Trump to alert the Ukrainians to our national interest in knowing whether our former vice president was a crook. Likewise, we don’t want to know whether Clinton launched any attacks on Trump with phony evidence manufactured by Ukrainian agents eager to curry favor with the presumed winner of the 2016 election.
By staking an impeachment claim on the phone call President Trump held with the Ukrainian president, the Democrats in Congress are essentially declaring that the president doesn’t have the power to negotiate with foreign leaders, he does not have authority as commander-in-chief to make deals, and he can neither cajole nor chide foreign nations to do our bidding without being brought to heel by the terrible oversight powers of Lord Congress.
But that describes a world that doesn’t exist, and can never exist. Instead, Congress is constrained not by the imaginings of political pundits, not even by the wishes of our Founding Fathers, but by the hard black letters of the Constitution. I am aware that impeachments have indeed been used for political purposes before, but I am arguing for a return to the plain language of the Constitution as a safeguard against chicanery. If Congress tries to stretch a friendly phone call between the presidents of two friendly nations into an impeachable offense, it will lose not only its credibility but also its own legitimacy that is granted by the Constitution.
Were a president to be threatened with impeachment for “laughing the wrong way,” he should immediately laugh himself right over to the Supreme Court for a ruling on whether laughing is a high crime or misdemeanor on the same level as treason and bribery. The same goes for asking an ally for information on potential crimes committed by or against Americans. That should be considered an obvious duty of the executive branch. And if the Congress proceeds with impeachment on such a flimsy predicate, then it should be subject to the same judicial review that all legislative action has undergone since Marbury v. Madison.
For remember, the Constitution says that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” By including the word “other” in the formulation, the document is informing us that treason and bribery are examples of high crimes and misdemeanors and set the bar very high indeed for what other offenses might be deemed appropriate for removal of a president. It’s no laughing matter.
The court might take the cowardly way out and say only the legislature can make a decision on the limits of its own power, but as we have seen repeatedly in the last three years, the judiciary has felt no such compunction when asked to rein in the executive branch; nor should it hesitate to correct the legislative branch when it goes astray. Moreover, impeachment is a quasi-judicial proceeding, and the president should quickly file a motion to dismiss the charges against him if they were based on a political rather than criminal foundation.
No guarantees about the outcome of such an action, but since impeachment is so rare, one cannot consider any precedent to be set in stone, and for all we know, an activist judiciary might jump at the chance to correct the wrong of an unjust impeachment whose sole purpose appears to be to prevent a gadfly president from being re-elected.
If so, President Trump may have the last laugh.