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The Liberal Case Against Impeaching Trump

Throwing Trump out of office would make forging a consensus on anything in Washington even more difficult.

May 22, 2017

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

High among the growth industries sparked by the jobs-first presidency of Donald Trump are writing and organizing about impeachment.

Historian Allan Lichtman got things rolling last month with a book bluntly titled, The Case for Impeachment. Law professor Laurence Tribe responded to the defenestration of James Comey by producing two Op-Eds, one in the Washington Post (“Trump Must Be Impeached. Here’s Why”) and the other with two co-authors in USA Today ("After Comey firing, Congress must stand up to Trump.”)

And that was before we learned that Comey was such an assiduous memo writer about his private meetings with the president. Trump’s supposed words about the Michael Flynn investigation (“I hope you can let this go”) may not have the inherent theatrics of John Dean’s line, “There is a cancer growing on the presidency.” But for many anti-Trump militants, the Watergate years are about to be restaged tweet by tweet.

Talk about pump-priming the economy. The left wing of the Democratic Party from to Democracy for America is on fire with impeachment talk. National impeachment marches are planned for July 2. And this is even before Comey testifies before Congress about his meetings with Trump.

Whenever fantasies about impeachment circulate in anti-Trump circles, there is always the fallback option—the convoluted and never-used mechanism to remove a president under the 25th Amendment. As New York Times columnist Ross Douthat recently wrote, “Liberals need to accept that the strongest case for removing Trump from office is likely to be a 25th Amendment case: not high crimes and misdemeanors…but a basic mental unfitness for the office.”

I know that many (myself included) are suffering from a malady that was diagnosed immediately after the stunning electoral verdict on November 8—President Trump Stress Disorder (PTSD). But the resulting breathless haste to end our short national nightmare should not obscure the high stakes involved in any effort to, in effect, invalidate the results of a national election.

Without whitewashing Trump’s contempt for the norms of democracy, without exonerating him for whatever may emerge from the Russia investigations and without vouching for his sanity, I want to express the hope that the 45th president serves out his entire term.

My reluctance to get on the impeachment bandwagon or to construct 25th Amendment scenarios has nothing to do with electoral calculations. The times are too serious and the national mood too volatile to speculate about whether a President Mike Pence would be a formidable 2020 candidate.

What worries me instead is that a protracted impeachment battle in Congress is likely to be portrayed as a coup attempt by Trump supporters, whether it is successful or not. Removing Trump from office would likely make poison-gas warfare in Washington even more toxic rather than replicating the mood of national consensus that accompanied Gerald Ford becoming president. Somehow it wouldn’t be the same as 1974 even if Trump’s successor declared, “I’m a Pence, not a silver dollar.”

Whatever the definition of the charges or the nature of the evidence, impeachment is always a political decision dressed up in judicial garb. It can be justified in the case of Richard Nixon or it can represent a frenzied over-reaction as occurred during the House vote and Senate trial of Bill Clinton. But short of the president shooting someone in the middle of Fifth Avenue, it is never an open-and-shut decision that would win near unanimity in the Congress and the country.

Remember that 10 of the 17 GOP members the House Judiciary Committee voted “no” on all three impeachment counts against Richard Nixon. Trump, too, is likely to be backed by a majority of Republicans in Congress. Some of these legislators may be motivated by conviction and some may be motivated by a fear of the wrath of Trump voters in a GOP primary. But, under almost all circumstances, Trump will have defenders more credible than Sean Spicer.

Even more divisive would be an attempt to deploy the 25th amendment against Trump on mental health grounds. Picture the vote in the Cabinet to make Mike Pence the Acting President pivoting on, say, the views of Education Secretary Betsy DeVos about Trump’s grasp of reality. Or imagine if Trump refused to give up the controls to his 60-inch White House television and, as his right, fought the decision in the Congress.   

Don’t misunderstand: Mechanisms like the 25th Amendment are needed for extreme cases. But no one should glibly recommend it because Trump’s syntax is garbled, his attention span seems short or because a group of psychiatrists offers a diagnosis without ever examining the presidential patient.

Instead of impeachment or the 25th amendment, I have another fantasy about how the Trump presidency ends:

Our first (and hopefully only) reality-show president would leave the White House on January 20, 2021, with his approval rating at 11 percent after even Fox News has turned against him. Trump’s grandiose legislative ambitions have been stymied by the Congress. His ill-considered executive orders have been overturned by the courts. His intemperate foreign-policy instincts have been reined in by his top national security advisers. And the efforts of the Trump family to profit off the White House have been upended by consumer and investor boycotts.

Then we can say with pride—as we did after Watergate—"The system worked."