Below is my column in USA Today on the recent statements by various Democratic leaders that they are unlikely to pursue impeachment because they do not have the votes in the Senate to convict. While many members pushed the impeachment angle during the campaign, there was a shift on the issue after the Democrats took office. Almost immediately after the election, senior Democrats changed course and began to dismiss calls for impeachment as “fruitless” and a distraction. Rep. Eleanor Holmes Norton declared impeachment to be “a useless waste of energy” and asked “Why would we go down the impeachment road when we cannot get it through the Senate?”
I have repeatedly said that I do not see the strong foundation for an impeachment against Trump. However, these comments raise a more fundamental question about how members should approach their duties under Article I irrespective of the President. Members often pull a bait-and-switch with gullible voters, but they should not manufacture a new constitutional standard. If they truly believe that any president has committed high crimes and misdemeanors, they have a sworn duty to vote for impeachment.
Here is the column:
With special counsel Robert Mueller’s report on the Trump team’s ties to Russia expected in a matter of weeks, impeachment is a hot topic in Washington despite obvious efforts by some Democratic leaders to tamp down such talk. While columnists and many voters view the impeachment of President Donald Trump as “inevitable” now that Democrats control the House, the one holdout group appears to be Democratic leaders themselves.
Ever since the election, senior Democrats have been raising doubts about the value and impact of an impeachment process. As Rep. Adam Schiff, now chairman of the House Intelligence Committee, put it this month on CNN: “If the Republican senators, some of them, are not on board, then all you have is a failed impeachment, and I don’t see how that benefits the country.”
While I continue to question the basis for an impeachment on the evidence available at this point, Democratic leaders are advancing a flawed interpretation to avoid their responsibilities under Article I of the Constitution. If they believe that Trump has committed impeachable offenses, they should impeach him, regardless of whether their counterparts in the Senate will fulfill their own sworn duties in a trial.
Democrats won the House last fall amid expectations among many voters that they would deliver rigorous oversight, up to and including impeachment. I disagreed with much of the campaign-season impeachment talk by advocates such as California billionaire and activist Tom Steyer and Rep. Maxine Waters, D-Calif. Some party leaders now clearly view impeachment as too risky a move heading into the 2020 election and prefer a Trump administration in free fall to a rising Pence administration. They are scrambling to find a way of supporting impeachment without actually impeaching Trump.
The responsibility for such an effort will fall primarily on the new chair of the Judiciary Committee, Rep. Jerry Nadler of New York. He is an ideal choice for the position: smart, seasoned and serious. However, Nadler drew a curious distinction last month on CNN’s “State of the Union” news show: “You don’t necessarily launch an impeachment against the president because he committed an impeachable offense. … An impeachment is an attempt to, in effect, overturn or change the result of the last election. And you should do it only for very serious situations.”
House Democrats can’t take the easy way out
I believe that the Framers viewed any impeachable act as a “serious situation.” When I testified during the Clinton impeachment hearings on the constitutional standard, I argued that lying under oath was clearly an impeachable offense. Despite my voting for Clinton and the testimony of other experts that lying about a sexual affairs was clearly not impeachable conduct, Clinton lied under oath while in office and the subject matter, in my view, was immaterial.
(A federal judge later found that Clinton committed perjury, a crime for which he was never charged despite thousands of Americans going to jail for the same offense.) The Democrats (and many experts) at the time tied themselves into knots to find an excuse for not voting to impeach. They were wrong then and they are wrong now in seeking an easy way out of Article I.
Under Article I, Section 2, Clause 5, the House holds “the sole power of impeachment.”
The standard itself is found in Article II, which says a president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
That’s “shall,” not “may, if convenient.” It is certainly true that House members, like a jury, are free to render their decisions as they feel proper, and that votes cannot be reviewed by a court. However, like jurors, members are expected to adhere to the standard laid out in Article II, which they swear to uphold with the rest of Constitution as a condition of taking their seats in Congress.
There is a reason for the mandatory language. Framers expected members to do their duties when faced with impeachable offenses. For House members, that duty is to impeach regardless if they believe that their Senate counterparts will be faithful to their oaths. This is not a version of “the prisoner’s dilemma,” where the two houses try to guess the other’s intentions as a condition for their own actions. The House is expected to act, to declare conduct as a high crime and misdemeanor when it is a high crime and misdemeanor. The decision is about the legal gravity of the act, not the political conditions of the vote.
Republican senators might uphold their oaths
During the Clinton administration, Democrats engaged in a form of “jury nullification,” in which they agreed that Clinton lied under oath but elected to ignore that crime by a president in office. Schiff’s approach would repeat the mistake by ignoring alleged criminal acts because the accused might not be convicted. Consider the impact on our legal system if grand juries adopted such a standard and refused to indict because they believed that a jury would likely deadlock. There is a value for declaring an offense to be a crime, or in this case an impeachable offense, regardless of the outcome at trial.
It is also wrong to assume that Republican senators will clearly violate their oaths. During the impeachment of President Andrew Johnson in 1868, multiple senators effectively ended their careers to vote to acquit the unpopular president because they swore a duty not to him but to the Constitution.
Nadler is right that some of the alleged conduct, if proven, could amount to impeachable offenses. Yet there are still major questions that weigh heavily on that question, including acts taken before Trump became president and serious questions of what constitutes obstruction or conspiracy. However, there should be no question of what should be done if such crimes are proven to the satisfaction of the House.
There is a Confucian saying that “the beginning of wisdom is to call things by their proper name.” Under our Constitution, the wisdom starts with the House in calling certain offenses “high crimes and misdemeanors.” Call it your duty. Call it constitutional Confucianism, if you wish. Just call it for what it is.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors, was lead defense counsel in the last Senate impeachment trial and gave expert testimony to Congress during the Clinton administration on the constitutional standard for impeachment. Follow him on Twitter: @JonathanTurley