Dear Reader (including all the haters and losers who are angry that I dared to have a good time on my podcast),
I wrote a column arguing that I think the allegations against Trump are true and that they’re impeachable, but I am less sure that he should be impeached for it. And just as I predicted in the first sentence, no one likes my take.
But I really don’t want to write about Trump or Ukraine or whether the transcript is white and gold or blue and black—oh wait, that was that dress. But the argument feels the same.
Instead, I want to write about impeachment and how it might illuminate the still smoldering French-Ahmari wars. Will I succeed in the amount of words I have available to me? Let’s find out.
As I keep saying, echoing everyone from James Madison to Andy McCarthy, impeachment isn’t a criminal or legalistic mechanism. It’s a political one. That’s why Madison passionately opposed having the Supreme Court handle impeachment trials. The Chief Justice may preside over impeachment, but it’s the Senate that acts as the real judge and jury.
Criminal acts are obviously impeachable, but so are all manner of perfectly legal acts as well. Prior to the 25th amendment, if the president went bonkers and only wanted to spend his days eating cat food, the only way to get him out of there was to impeach him. There’s nothing illegal about spending all your time eating cat food, but it’s not something we look for in a commander- in-chief. If the president started saying that he kind of thinks ISIS has the better argument and that we should be aiding it every way we can, I can imagine some people wanting to impeach him. That’s because, as Andy has written many times, impeachment is ultimately about remedying a breach of trust with the American people.
Let’s stay on that for a second. Let’s imagine the president—and I don’t mean Trump, but any president—announced shortly after being elected that he had actually been a secret Muslim all along. Would that be impeachable? Yes. Should he be impeached for it? Well, that’s a subject for debate. There’s nothing illegal about or wrong with being a Muslim. Lying about it is a problem, but maybe he or she had a good reason. If the newly elected president were a truly radical Muslim with sympathies for terror groups—again, nothing illegal there—I suspect that president would be and should be impeached. But if this president were just a peaceful and patriotic Muslim (like the majority of American Muslims are), I think the case for impeachment is much, much weaker. Why not just wait and see what the president does and let the voters render their verdict in four years?
Now imagine it’s not 2020 but 1920 or even 1820. My hunch is that this wouldn’t even be up for debate. Articles of impeachment would fly out of Congress like an angry cat out of a clothes dryer. Forget being a Muslim. Imagine it’s the 1850s, during the height of the Know Nothing era, and a newly sworn-in president revealed that he was a Catholic. Hearings on whether someone could be president and loyal to the Pope in Rome would start the next morning.
Again, there’s nothing illegal about being Catholic (sorry Jimmy Blaine). And while it might say something unpleasant about America that people would want to impeach a president for being Catholic (or, back then, secretly mixed-race), there’s nothing stopping Congress from impeaching a president for any damned thing it wants, including violations of cultural norms or moral taboos.
This is one of the things that always bothered me about the Clinton impeachment. Because we treat the law as a kind of secular theology, the Lewinsky scandal was contorted into a perfectly legalistic affair. Whether or not Clinton should have been impeached is a complicated argument with pros and cons on each side. But the idea that his conduct in the Oval Office—while perfectly legal—wasn’t impeachable always struck me as absurd. (Judge Bork agreed with me, by the way.)
One of the funny things about how people have changed in the last two decades is that back then, religious conservatives were adamant about this point and feminists were outraged by it. Now, if we had a replay of the same fact pattern, in the wake of Trump and #MeToo, the arguments would also surely be completely reversed.