Wait what? The last time we heard from Speaker of the House Nancy Pelosi (D-Calif.), she was saying that whether President Donald Trump was indictable was “an open discussion.” Now, she’s apparently against even the less controversial concept of impeachment. “Nancy” (as I like to call her) is treading on dangerous territory here. She sat down for an extensive interview with The Washington Post, in which she said the following:
Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.
While Pelosi’s statement that Trump “isn’t worth it” has the ring of taking some imagined high road, the reality is that impeachment is a custom-tailored solution to our collective Trump-shaped problem. Realistically, the only people for whom impeachment “isn’t worth it” are those – like Pelosi—who measure value in political capital. It may not be justifiable to her, or to anyone who seriously fears becoming the next Newt Gingrich – but plenty of Americans are at the “any means necessary” phase of ousting Trump.
Let’s just recap the impeachment v. indictment relationship – because TBH, it’s a little weird that Pelosi would be open to indictment, but not to impeachment.
Because absolute presidential immunity from criminal prosecution was almost always assumed, it was rarely discussed until Donald Trump’s presidency. The DOJ guidelines explicitly forbid the indictment of a sitting president, and all signs certainly do point to Robert Mueller’s plans to follow those guidelines.
In that way, Rudy Giuliani’s declaration that, “all [Mueller’s team] get[s] to do is write a report. They can’t indict,” is true. Sort of. The DOJ guidelines are not law. Under a legal – specifically Constitutional analysis, Pelosi’s statements back in January were exactly right. Presidential immunity is an open question – one that has been asked, but never answered.
During the Watergate scandal, the issue of presidential immunity from criminal prosecution was raised, briefed and argued before the Supreme Court, but the case was decided on other grounds, leaving the issue dormant. As with any ambiguous legal matters, the experts disagree; many believe indictment is possible, while others believe it’d contradict the Framers’ intent. But the popular refrain from those pro-immunity experts goes as follows: “a sitting president cannot be indicted, because the proper remedy is impeachment.”
It is in this context that Pelosi’s statements seem incongruous. If she’s in the land of “maybe” for something as novel and momentous as presidential indictment, it makes little sense that she’d be solidly against impeachment without further discussion.
We’re in what many Americans feel is the most divisive political climate of our lifetimes. Nancy Pelosi herself said today that Trump is responsible for, “a very serious challenge to the Constitution of the United States in the president’s unconstitutional assault on the Constitution, on the first branch of government, the legislative branch.” Terrible and dramatic as all that sounds, it’s “not worth” expelling him from office using the exact mechanism created by the Constitution for that exact purpose? Help me out here, Nancy.
Realistically, presidential impeachment, by its very essence, will always be divisive. For impeachment to be in play, we’d be necessarily talking about a person who won a presidential election. American voters, who are predictably hell-bent on maintaining a binary us vs. them mentality, will never be thrilled about impeaching a president for whom they voted. But that fact alone cannot be the reason why we hang on to a deeply dangerous president.
Call me crazy, but I believe that our legislative branch has an actual responsibility to do that whole checks-and-balances thing. And if a president has committed an impeachable offense, the process should be seriously considered, regardless of the fact that it’ll annoy cable news viewers. None of that means that every potentially impeachable offense should lead to an immediate drafting of articles; the process should be undertaken soberly, with allegiance to law, and serious consideration of consequences. But a flat refusal to even consider the process is as short-sighted as it is dishonest.
Nancy Pelosi isn’t the sole arbiter for what’s “compelling and overwhelming” enough to warrant the start of impeachment proceedings. Her declaration of Trump’s inconsequentiality, while a great sound bite for the they-go-low-we-go-high crowd, attempts to obscure the real reason why Pelosi and others would opt out of impeachment: their own political futures.
I spoke today with CNN legal analyst, attorney and impeachment expert Ross Garber, who put it similarly bluntly, saying, “Pelosi and other Democrats want to run against Trump, who they view as both predictable and politically vulnerable.” Trump is the ultimate villain for any Democratic candidate. In her WaPo interview, Pelosi declared Trump “a great organizer for Democrats, a great fundraiser for Democrats and a great mobilizer at the grass-roots level for Democrats,” and of course, she’s correct. But what that means is that impeachment would deprive Congressional candidates the opportunity to run on an anti-Trump ticket; that loss is likely a more powerful motivator for Pelosi’s position on impeachment than is the painful ordeal that it would likely be for our country.
Garber also gave me his take on the effect impeachment would have on Congress.
“The impeachment process is perilous to Congress. It is all-consuming and will suck up the oxygen otherwise available for other issues. It will motivate Trump’s base, who will view impeachment as a partisan coup,” he said. “And it will attract increased focus on how Congress is performing.”
There are some really good arguments against presidential impeachment – and at the top of that list is that there simply aren’t enough senatorial votes to convict. Nancy Pelosi isn’t an attorney, but I really wish she’d taken a page from the books that lawyers use all the time. When declining to prosecute or bring a lawsuit, attorneys will often clarify that the admissible evidence simply wasn’t enough to warrant bringing a case.
There’s no shame in admitting that a verdict isn’t predictable enough to justify the litigation. But the suggestion that Trump or his presidency is somehow too insignificant to rationalize Congress’ meeting its constitutional mandate is unacceptable.
The common thread running through the Trump presidency is the unprecedented nature of it all. From his questionable business holdings to his assault on the First Amendment to his circumvention of the judiciary, Trump presents novel questions of law on an almost daily basis. If Congress chooses to abdicate its (admittedly difficult) responsibility, I’d prefer if it came up with a better explanation than, “Oh don’t worry about that terrible Trump man. He doesn’t matter anyway.”
[image via Zach Gibson_Getty Images]