Monday, January 27, 2020

Thinking about (what else) Impeachment

Mark Tushnet

Presidential impeachment is one of the processes we have for determining the outer boundaries of acceptable political morality for holders of that office.[1] That description raises several puzzles/problems for people who want to say something about an on-going impeachment process.[2] These are temporal and sort-of-normative.

(1) Temporal: Qua scholar of constitutional law (that is, detached from my present normative views about political morality), how do I think about the present impeachment process considered as one of determining political morality? And, related in ways I’ll explore, how do I think about past processes?

Begin with the past, and consider the Johnson and Clinton impeachments. What do they tell us about the process of determining political morality? The key point here is that what they tell us is not stable over time. In the 1950s John F. Kennedy (and Theodore Sorenson) taught us that the Senators who voted against Johnson’s removal were profiles in courage because (to summarize) they resisted the impulse to treat presidential impeachment as a means of imposing a purely partisan political program on the nation. They were in the shorthand, “statesmen.” Today there’s a competing view, not quite a consensus, I think, but coming on strong: Johnson should have been removed from office because he systematically obstructed a lawfully enacted congressional program of Reconstruction (and the fact that his vetoes of key statutes were overridden matters here) in an effort to preserve or reinstate a morally repugnant system of race relations.

Similarly with the Clinton impeachment. My sense is that as of perhaps a decade ago constitutional scholars took that process to have established that impeachment, much less removal, was inappropriate for what was then thought to be relatively low-level lying about what was then thought to be basically private conduct. Today, I think, there are different possibilities on the agenda: that he should have been removed for #MeToo reasons (as to which his lying was basically incidental, but perhaps the formulation should be “lying in connection with improper #MeToo behavior”); or, as has openly surfaced in recent days but was available earlier, that presidential impeachment is under contemporary circumstances one of the ordinary weapons a party can use to weaken the political strength of the president’s party. (On this, see Jack Balkin’s post.)

As I’ve noted, the key point is that impeachment, understood as a process for determining political morality, doesn’t have a stable meaning determinable either at the moment or even in retrospect. So, perhaps, the only thing we can note in our capacity as students of the U.S. constitutional system are things like, “Isn’t it interesting that … is happening? (e.g., the strength of party solidarity on both sides of the aisle), and then ask, “Why might that be so?” (that is, what are the socio-economic-political, etc. conditions that have brought about that degree of party unity).

(2) Sort-of-normative. Of course each of us might have a view about what contemporary political morality should be. (Actually, I think that as constitutional scholars we all should have such a view.) It’s not clear to me, though, why anyone (else) should be interested in our views on that question – and, in particular, why anyone should be more interested in the views of constitutional scholars than in those of political scientists, political philosophers, historians, or theologians (among other experts).

One answer might be that what distinguishes impeachment from other processes for determining political morality is that it has some degree of “law” built into it. Not that carrying through the process requires that either the public or our officials must come to some firm conclusion about whether something must violate a statute on the lawbooks to be a high crime or misdemeanor. Rather, at some times those engaged in the process believe that thinking seriously about legal matters is itself part of the process. And so, because we are (some of us, to some degree) experts about the legal matters thought to be relevant, our views are relevant data to be fed into the process.

Note several important qualifications built into what I’ve just written. (a) What matters are beliefs about the law’s relevance to the process, (b) the degree to which individuals hold those beliefs varies from one person to another (and in particular, Senators and members of the House vary in the extent to which they hold that belief), and (c) the degree to which law is believed to matter varies over time.

I draw two conclusions from that analysis. First, when I (or you, or … [another constitutional specialist]) try to explain our view of political morality with the aim of getting others to agree with it, we should know that we are engaging in a rhetorical practice (rather than [?] a scholarly one) – and, alas, that sometimes effective rhetoric requires that we present ourselves as detached scholars.[3] Second, these sort-of-normative questions return us to thinking about the conditions that create the current form of political discourse.

For me, for example, an intriguing question/observation is this: The current discourse seems to me to have become highly, perhaps overly legalized. Why? And, as the outcome and the process by which it seems likely to be reached have become increasingly clear, the degree of legalization seems to me to have decreased a bit. Again, why? My current quite tentative guess is that the answers have something to do with the instrumentalization of impeachment as ordinary political combat – what some have started to refer to, pejoratively (but perhaps the pejorative tone should be dropped), as the normalization of impeachment.: People are making judgments about the instrumental rhetorical value of the legalization of discourse.

[1] These reflections are provoked in part by my reading, for purposes of writing a review, Frank Bowman’s excellent High Crimes and Misdemeanors. A note on the ‘sociology” of impeachment discourse. Given the high quality of Bowman’s book (best of type, and matched in quality only by Charles Black’s little book on impeachment), why isn’t Bowman the universal go-to person for reporters, etc.? Two thoughts: Reporters gravitate to scholars (who know less about impeachment than Bowman) at higher status institutions. (I’m in that class.) And scholars differ in the degree to which they have character traits that make them comfortable with putting themselves forward as experts. I don’t know Professor Bowman, but I wouldn’t be surprised if he ranked low on the relevant scale. (I think of myself as somewhere in the middle, but I might be self-deluding – up or, more likely, down.)
[2] These puzzles/problems don’t arise when the person is expressly offering tactical advice to official participants in the process (e.g., advising a Senator directly or through a staff member), though a law professor doing so might wonder about his or her qualifications for offering such advice. I explore one aspect of that question – that the political process of impeachment is at various times “legalized” to different degrees – in the body of this post.
[3] I ended up being willing to sign a statement from scholars, in the drafting of which I had what I regarded as a sufficiently large personal role, that relied on our scholarly authority, because it was cast almost entirely in negative terms – that the position it criticized wasn’t supported by significant evidence. I wouldn’t have signed one affirmatively arguing for a particular vision of political morality because it’s unlikely in the extreme that such a statement would reflect my own view about political morality – “advancing the cause of democratic socialism,” and all that.

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