Why impeaching Trump would be worse than leaving him in office

Donald Trump appearing at a rally in December (Drew Angerer/Getty)

From Congress to newsrooms to social media, a type of impeachment fever has taken hold. Various proposals have been put forward for removing Donald Trump from office, with reasons ranging from alleged "collusion" with Russians to the president's response to Charlottesville. One poll shows support for impeachment at as much as 40 percent. Newsweek ran a headline proclaiming, "Trump Is Just Six Senate Votes Away From Impeachment," and Slate has a running feature called "Today's Impeach-O-Meter."

While such talk may be therapeutic for those still suffering post-election stress disorder, it is a dangerous course that could fundamentally alter our constitutional and political systems. Even if one were to agree with the litany of complaints against Trump, the only thing worse than Trump continuing in office would be his removal from it.

There is a mechanism under which a head of government can be removed midterm. Parliamentary systems, like Great Britain's, allow for "no confidence" motions to remove prime ministers. Parliament can pass a resolution stating "That this House has no confidence in Her Majesty's Government." But that's not our system, and it's doubtful that the members of Congress calling for Trump's impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn't necessarily the only politician to go. If the existing members of parliament can't form a new government in 14 days, the entire legislative body is dissolved pending a general election. And that's leaving aside the fact that Trump is still more popular than Congress as a whole: In the Real Clear Politics polling average, his job approval rating is under 40 percent while Congress's wallows at around 15 percent.

The Constitution's framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution. Instead, the House of Representatives would have to impeach and the Senate convict (by two-thirds vote) based on "Treason, Bribery, or other high Crimes or Misdemeanors."

The Framers were wise in this regard. Consider Rep. Steve Cohen's, D-Tenn., statement, in the wake of Charlottesville, explaining why he supports impeachment: "If the president can't recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us." Cohen doesn't articulate a high crime or misdemeanor, let alone prove one. He appears willing to impeach Trump because the president is viewed as insufficiently opposed to far-right or racist groups. If that were the standard, any member of an opposition party could cite unacceptable views as the basis for removal from office. Cohen's reasoning is no better than that of former congressman Kerry Bentivolio, R-Mich., who was quoted in 2013 telling a constituent that if he "could write a bill" to impeach then-President Barack Obama, "it would be a dream come true."

Though clearly farcical, the suggestion by USA Today's Jill Lawrence that "Trump is doing an excellent impression of a president who desperately wishes to be impeached" - that his comportment in office is some sort of thinly veiled cry for help - obscures the gravity of what's at stake with impeachment. Lowering the standard would fundamentally alter the presidency, potentially setting up future presidents to face impeachment inquiries or even removal whenever the political winds shifted against them.

Especially alarming is the argument that, "Yes, Trump Could Be Impeached for Pro-Nazi Talk." This week, the Daily Beast's Michael Tomasky evaluated the impeachment of Andrew Johnson to demonstrate why some experts believe presidents can be impeached over purely "political disagreements" - more or less reducing impeachment to the equivalent of being voted off the island on an episode of "Survivor: Beltway." Johnson was a thoroughly obnoxious president who took office after the assassination of Abraham Lincoln. He was opposed by the Radical Republicans in Congress who sought to extend voting rights to freed slaves and limit the political power of former Confederates. Johnson was impeached by the House, but he was spared conviction (by one vote) in the Senate, which recognized, properly, that however valid opposition to the president was, in the end it amounted to a political disagreement. Had he been removed from office, it would have been an abuse of Congress's power; and while abuses can happen, they remain abuse.

As the last lead counsel in an impeachment case - I defended U.S. District Judge Thomas Porteous in 2010 - even the theoretical revival of Johnson's impeachment is chilling: There is no clear way to defend against having insufficient values. Tomasky quotes constitutional lawyer Bruce Fein, who floats the possibility that a president might be impeached for views demonstrated to be "sabotaging, not defending the Constitution - including its separation of powers, due process, and equal protection - by applauding the ideas or actions of tyrants from his bully pulpit." But imagine what could happen if that were true. Any presidential remark deemed objectionable could be characterized as "sabotaging" constitutional values. Rather than requiring unconstitutional acts, we would impeach for unconstitutional thoughts, even though our Constitution's standard certainly isn't high thought crimes and misdemeanors.

This can seem weirdly incongruous, given the other presidential impeachment in our history: Bill Clinton was impeached for lying under oath about something relatively trivial; many view Trump as opposing fundamental American values. But Clinton deserved impeachment because he lied under oath. I was one of the experts who testified before Congress during Clinton's impeachment hearings and, despite voting for Clinton, I maintained that perjury clearly fell within the standard regardless of the subject. Presidents don't get to lie under oath any more than Congress gets to choose impeachment standards depending on the president. While this may be frustrating and inconvenient, there is no proof Trump has committed any crime or otherwise impeachable offense.

Impeaching a president on the grounds of high contempt or misbehaviors would leave the presidency weakened. Trump won't be our last president and we shouldn't count on making the presidency great again if we add a no confidence option to impeachment.

Washington Post