Democrats in the House of Representatives have decided they cannot ignore President Trump’s efforts to pressure Ukraine to produce dirt on Trump’s likely opponent in 2020. They have begun an impeachment inquiry, which may lead to the introduction and adoption of articles of impeachment in the House. Given the ample proof of Trump’s obstruction of justice in the Mueller report, resort to the impeachment remedy only now indicates how reluctant Democrats have been to take this step. There are huge political risks for the Democrats. Even now one can hear criticism of the move from those who ask why we just can’t wait until the 2020 election and let the voters decide whether Trump is guilty of a “high crime or misdemeanor?” But waiting until the 2020 election to deal with Trump’s conduct, up or down, would be a serious mistake. Here’s why.
Let’s first think about this idea in the abstract. Presidents are elected for four year terms. Much mischief can be done in that period. If a President commits an impeachable offense in the first six months of his tenure, the notion that the “trial” of this question should await the next election will enable him to remain in office for a lengthy period and commit offenses of the same or greater seriousness. And what of a President who commits an impeachable offense in the first six months of his second term? The voters would get no chance to remove him by way of an election.
In the current situation, there are thirteen months until the 2020 election. If Congress does not immediately deal with the allegations, one way or the other, there will be no constitutional brake on Trump’s behavior. He will get the signal that Congress does not have the resolve to check his behavior, even though it breaks all norms. He will have clear sailing for more of his efforts to use foreign assistance to undermine his opponent in the critical run-up to the election.
The impeachment process requires the adoption of articles of impeachment in the House of Representatives, which is like an indictment. The impeachment question is then sent to the Senate. Article 1, Section 3 of the Constitution says “The Senate shall have the sole power to try all Impeachments.” What would deferring to the 2020 election be if not a decision to use another mechanism – the voters – to try the impeachment question?
But suppose we wait until the 2020 election and Trump is defeated. We would never know whether pressuring a foreign government to interfere in our elections is a “high crime or misdemeanor.” It would be impossible to know whether Trump’s election loss was because of the people’s judgment on the offense of for other reasons. Likewise, if the President survived the election we would never know the people’s judgment solely on the offense. It is certainly possible that other forces and factors could prevent voters from even considering the offense. Take, for example, what would happen if we suffer another terrorist attack between now and November 2020. The American people usually rally around the President as commander-in-chief in those circumstances.
The Founders recognized the danger of submitting the question of impeachment to the public. In The Federalist No. 65, Hamilton said that impeachment questions
will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Here Hamilton was arguing that the innocence or guilt of a President should be determined in Congress, not dictated by the latest poll or the next election.
Some Democrats believe that the surest way of removing Trump from office is letting him stand for re-election in 2020. This is because he can be removed from office by slightly more than a majority of voters, whereas he cannot be convicted in the Senate on less than a two-thirds vote. The Republican-controlled Senate does not seem likely to convict, at least on the evidence we now know. But those of us old to have lived through the Watergate hearings will remember that it was believed unlikely the House would even pass articles of impeachment. Instead, as the evidence was revealed in the House hearings, Republican support for the President began to erode little by little. Nixon resigned because he was told he would lose the House vote.
But here should be the showstopper for Democrats who believe that removing Trump in the election is a better option. Article I, Section 3, Clause 7 of the Constitution says that impeachment and then conviction in the Senate means removal from office and permanent disqualification from holding any other federal office. On the other hand, if the way we get rid of Trump is by defeating him in the 2020 election after he has served only one term, he can – and will – run again.