RUTHFULLY YOURS

Our system is based on separation of powers, because liberty depends on preventing any component of the state from accumulating too much authority — that’s how tyrants are born. For the system to work, the components have to be able to check each other: The federal and state governments must respect their separate spheres, and the branches of the federal government must be able to rein in a branch that oversteps its authority.

The steady federal encroachment on state authority has created an imbalance that probably cannot be rolled back. I want to focus on the collapse of inter-branch checks in the federal government.

This was the issue I dealt with in Faithless Execution. The thesis was that the Framers feared an agglomeration of power in the presidency they were creating, so they endowed Congress with significant checks on the executive. The ultimate one was impeachment. But this was supposed to be reserved for truly abominable misconduct. Though Madison concluded that impeachment was “indispensable” in light of the damage a rogue president could do, it also came with its own set of problems. Not least, impeachment might give Congress too much power over the executive. It might be invoked out of partisan mischief, rather than serious maladministration. Consequently, impeachment was made to be really hard to do.

The Framers were sophisticated men, who saw themselves as both students and victims of executive power run amok (as about two minutes’ perusal of the Declaration of Independence elucidates). They understood that governance would involve tussles between the political branches and episodes of overreach — whether out of incompetence, malevolence, or urgency — for which the extraordinary impeachment remedy would be gross overkill. Routine disputes involving the propensities of both the legislature and the executive to act outside their authorities would be handled by lesser remedies. Congress, most importantly, was given the power of the purse and significant power over executive agencies (to create them, to limit their authority, and, in the Senate’s case, to approve their leaders).

My argument in Faithless Execution was that this system has broken down, with no repairs on the horizon. The Framers naturally thought congressional control of the executive budget would obviate the need to resort to impeachment. Lawmakers could defund dubious executive initiatives and withhold funds necessary to carry out the president’s priorities; this would pressure the executive branch to comply with statutes as well as congressional demands for information and policy modification. The ultimate question of a president’s fitness would be left to the sovereign — the American people, exercising the franchise.

In the last century, however, the federal government and the administrative state have grown enormously, vastly increasing executive power. Meanwhile, congressional funding processes have descended into dysfunction. Rather than budgeting programmatically and with an eye on individual outlays, Congress does mammoth omnibus funding. Spending grows on autopilot, with both the president and lawmakers fearful of being seen as slashing dollars from what the media portray as critical federal functions. The power of the purse is no longer a practical check on executive overreach.

That would seem to make impeachment even more indispensable. In the absence of a credible threat of impeachment, lawmakers would have no real check on presidential misconduct — other than Congress’s capacity to embarrass the administration politically with public hearings and commentary. That is, unless impeachment is a real possibility, presidents are limited only by their own sense of what they can get away with politically. That is barely a check in day-to-day governance. It leaves a wide berth for presidential legislating, lawlessness, and flouting of congressional mandates.

Impeachment is a political remedy, not a legal one. With Donald Trump in office and impeachment in play, that adage is repeated so often it seems platitudinous. But it states a vital truth: The mere existence of misconduct that the House might judge impeachable does not mean the Senate — by a two-thirds supermajority — would remove a president over it. That fact, coupled with the inherent societal discord impeachment is bound to cause, has historically discouraged the House from commencing impeachment inquiries, even for arguably impeachable offenses.

The upshot is that impeachment can never be successfully invoked — in the sense of both filing articles of impeachment and ousting the president from power — absent a public consensus, cutting across partisan lines, that a president needs to be removed. Only such a consensus would move members of the House and Senate, who must face voters. Therefore, a public political case has to be made for impeachment. It is not enough to show that a president has overstepped here or there. The public must be convinced that these excesses are so serious, so indicative of unfitness, that it is worth putting the country through the trauma of removing the chief executive.

Significantly, I contended in the book that the goal is not necessarily to remove the president but to change presidential behavior. To be sure, if misconduct were sufficiently egregious that the president could not credibly carry out his responsibilities any longer, removal would be the only option. But with the power of the purse falling into desuetude, impeachment could address less serious misconduct, too. If a president who is not otherwise unfit pursues unlawful or harmful policies, a credible threat of impeachment might be enough to persuade the president to reverse course – obviating the need to impeach.

In Faithless Execution, I laid out various instances of presidential misconduct which could be used to try to build a political case for President Obama’s impeachment. I did it, though, with these caveats: 1) a president should not be impeached in the absence of a public consensus for his removal (an unsuccessful impeachment is likely to encourage more abuse of power); 2) if making the political case induced a president to cease and desist the misconduct, an impeachment effort should generally be aborted since the credible threat of impeachment had served its purpose; and 3) if Congress concluded that impeachment would be so unpopular that a president’s opposition party would suffer politically for invoking it, then it was a rational choice not to seek impeachment — but a choice that came with the price tag that a rogue president would be encouraged to continue abusing power.

In the case of President Trump, Democrats are doing what I suggested should be done with President Obama — building a political case for impeaching a president they deeply oppose. They certainly have the right to do this, yet there is a problem. I may have been right that this revival of impeachment as a credible threat is necessary (in the absence of any other realistic alternative for addressing presidential overreach), but it is also causing serious governance problems. Ignoring them would be irresponsible.

To be sure, the Democrats’ underlying rationale for impeachment is different from mine. Democrats decided Trump was unfit before he ever entered office and have been seeking any ostensibly plausible reason to vindicate this predisposition in articles of impeachment. By contrast, while I was never an Obama fan, my argument was not that he came to office as an impeachment waiting to happen; it was that, for years, he governed in a manner intentionally designed to undermine the Constitution’s structure, and that he had elevated the interests of foreign powers and actors over the interests of the American people and our security.

Those differences aside, however, we can see that relying on impeachment as the go-to response to presidential overreach — real or alleged — has manifest downsides.

To build their political case, Democrats frame every dispute with President Trump in dire terms: proof of his unfitness and the imperative of removing him. No misstep is too trivial. The president’s supporters, to the contrary, are incentivized to defend the president, even when they should be trying to convince him to change course. They do not want to be seen as implicitly supporting the impeachment effort, so every misstep, even ones that are serious though not egregious enough to warrant impeachment, must be defended rather than corrected. And the president — especially one with Trump’s persona, which is always to attack and never to confess error — is encouraged to double down on his mistakes, lest his changing course be seen as an implied admission of misconduct that strengthens the impeachment case.

The Democratic base demands impeachment. Recently, Speaker Nancy Pelosi has come around to the conclusion that it can be done quickly and with minimal political damage to Democrats who hold seats in pro-Trump districts. It thus appears highly likely that the president will be impeached in the coming weeks.

The Democrats’ euphoria will be short-lived. There will be deep, bitter public protest because impeachment, on the facts before us, is objectively foolhardy. Trump’s missteps do not rise to the level of impeachable offenses. If they did, Democrats would not fear voting to conduct the impeachment inquiry, and they would proudly hold their hearings in public with due process, rather than behind closed doors with selective leaking.

Moreover, we are just one year out from an election in which, if Trump is as bad as Democrats say, the voters will remove him. Yet, Trump’s approval rating hovers at around 43 percent, close to what Obama’s was a year before his reelection. Trump could certainly lose, but he stands a decent chance of being reelected. Hence far from a strong consensus for his removal, there will be zealous protest against impeachment by a significant segment of the public. Consequently, the Republican-controlled Senate will swiftly reject the House Democrats’ impeachment articles as a partisan stunt — as precisely the abuse of power the Framers feared. And woe betide the next Democratic president seeking the bipartisan cooperation needed to govern.

Our constitutional system will be damaged because impeachment will be discredited. That will not make it any less indispensable than Madison judged it to be. Yet its invocation will be even less likely in some grievous future instance, when a presidential abuse of power actually does imperil the nation. We will have a virtually omnipotent president. As a practical matter, there will be no viable congressional check — no impeachment, no power of the purse — to rein the president in. The powers of the competing political branches will be in gross imbalance, making functional separation of powers impossible.

As the Framers would tell us, that is not a prescription for the preservation of liberty.