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.