I am pleased to welcome to ELB Book Corner Victoria Nourse, writing about her new book, The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (West 2021). Here is her first of three posts:
I was unexpectedly conversing at the French Ambassador’s residence last week (not exactly a habit), when one of the participants dismissed American “impeachment” as a failure. Having just finished what may be the first-ever casebook on the subject, The Impeachments of Donald Trump, I bristled. Trump’s insurrection was the closest the country has ever come to a coup. We should never forget.
I wrote The Impeachments of Donald Trump because it bears witness to one of the most horrific events in the life of American democracy. I wanted people—pre-lawyers, political scientists, law professors and citizens—not to forget. And if you think impeachment is a constitutional failure, you will simply put it all in the failure drawer and forget it.
Here’s why the failure theory is wrong: presidential impeachment is part of a larger electoral system. It operates like a democratic “fire alarm” or perhaps, in Trump’s case, like a constitutional “primal scream.” Impeachments are high-powered media events engaging an otherwise disengaged electorate. We are in danger! Democracy in peril! Coup around the corner! That, in turn, shapes presidential elections. From that perspective, the electoral informing function of impeachment the Trump Impeachments cannot be denominated a failure. More people voted in 2020 than had ever voted in a presidential election in American history. Donald Trump lost the 2020 election. And his actions inspiring an insurrection proved the The First Impeachment managers warnings—he will do it again–were right.
To be sure, many wish that Trump had been barred from future office. But that would not have stopped him from holding rallies or spreading disinformation or claiming election fraud. Removal by impeachment is always something of a fantasy. Impeachment is an extreme form of congressional oversight. Hearings and a trial before the next election can focus the collective public on democratic danger. But no one should ever think that removal is likely. Read the rules. It takes a 2/3 vote in the Senate. That may just seem like a number, but if you have ever worked in the Senate (as I have), where 60 votes are the rule, you know 2/3 requires super-bipartisan support. Even in the worst cases, like Trump or his evil 19th century twin, Andrew Johnson, removal is entirely unlikely—whoever is impeached and for what. My point: the rules tell us that the process is as important as the result.
Impeachment only happens if the entire Congress stops and calls on the nation to listen. Think of the electoral incentives of those who control impeachment. Only when extreme fear motivates a wide spectrum of the public is the House ever likely to vote for Impeachment Articles. The impeachment of Bill Clinton is the exception that proves this rule. We know how that went: it burned those who pushed impeachment because personal conduct, however problematic, does not imperil a nation. The country’s fear level must be palpable enough so that it is just as important for representatives to stop everything they are doing to impeach as to tend to their constituents’ business by legislating. The Members must feel that they can explain to their voters why they had to impeach.
This is what my book calls the “political safeguards” of impeachment, which explains the tiny absolute number of presidential impeachment Articles voted by the House and the tiny number of impeachment trials of Presidents in the Senate (4 over 200 plus years). Numbers and what David Mayhew called the ”electoral connection,” go a long way to explaining the simple fact that presidential impeachment is a deservedly rare bird. But its rarity is its power. Only if unusual would it create a media frenzy, arousing the dormant public to democracy’s scream. Only if a last resort, would it bear witness to grave dangers that history should not forget. And, as we know from many of our most grave errors, from genocides to slavery, bearing witness is often the best and most important task at hand. That is what Congress did in the Impeachments of Donald Trump.