Impeaching Trump Would Constrain Democrats Too Much

(Bloomberg Opinion) -- Democrats are again being tempted to move toward impeaching Donald Trump. It’s still the wrong call to make, at least so far. Yes, there’s a good case — a very good case — an extremely good case — that Trump has acted contrary to his oath of office and deserves impeachment and removal. With his attorney general pitching the preposterous idea that the president can just pull the plug on any investigation of his own actions, and with the president actively resisting normal congressional oversight, it's clear that the House should be fighting back as strongly as it can. But for now at least, Republicans are not going to vote for impeachment, and so we’re talking about a partisan impeachment and a partisan acquittal.

That’s a path that has no advantages for Democrats before, during or after impeachment.

The “before” question is whether to continue investigations and hearings as part of regular House oversight, or as part of an explicit impeachment inquiry.

Are there advantages with the latter? Not really, I don’t think. Whether it’s called impeachment or not, what matters at this stage is whether Democrats can find ways to publicize Trump’s malfeasance, in hopes of both hurting Trump’s popularity and of finding new allies among any weak Trump supporters among congressional Republicans.

One reason that doing that in the context of impeachment is harder is that it makes some potentially unpopular Trump actions irrelevant — that is, if they aren’t specifically among the impeachment charges. Some of that material, including all those contacts between the Trump campaign and Russians detailed in the Mueller report, may still make Trump look bad. It might reflect very poorly on him and his associates. But if it’s not relevant to impeachment, no one is going to pay attention to it once the question becomes one of removing the president or not. The impeachment context robs Democrats of the flexibility to pick and choose which things to highlight.

Impeachment also creates a framing of the question that makes it easier for Republicans to remain unified, and may even lose support among some neutral outside opinion leaders. It immediately changes the overriding question from whether Trump (and others within his campaign and his administration) behaved well or badly in any actions the Democrats choose to publicize — a framing which may make it difficult for people to stick with Trump — to the question of whether actions are worthy of removal. The Bill Clinton impeachment demonstrated how easy it is for a party to stick together even if they disapprove of the president’s actions once removal becomes the only important question.

What about the next step after a partisan vote to impeach? During the impeachment process, the question moves out of the House, where the Democrats control procedure, and over to Mitch McConnell’s Senate. The Senate, and not the House, would set the rules under which a trial was held, subject only to McConnell’s ability to hold his majority together. We’ve seen repeatedly that’s not much of a constraint. A Senate trial of Donald Trump might well wind up dominated by Republican conspiracy theories about the Department of Justice and the FBI, supported by “evidence” from witnesses selected by the president’s lawyers, with rules for questioning that tilt strongly toward Trump and the Republicans.

And after a party-line vote to acquit? Trump would surely take that as an indicator that he could continue with every one of his assaults on the rule of law and the Constitution, not only safe from an implausible second impeachment, but with the assurance that the Senate had certified all his actions to date as perfectly acceptable. Even continued oversight hearings on any Trump abuse up through the impeachment would be difficult to justify after bringing him to trial and losing.

It’s true that failing to use the congressional power of impeachment under current conditions would reveal it to be a very weak power indeed. But very weak isn’t the same thing as totally useless. Keeping the threat of it alive, even if it’s not much of a threat, is still better than removing it as an option altogether, which would be the case following a partisan impeachment and acquittal.

Meanwhile, House Democrats have other options. They can continue to dramatize ways in which Trump has proven himself unfit for office. They can try to enforce subpoenas. They can think about creative riders on must-pass bills, including appropriations bills, to constrain or punish the White House.

In doing so, they can seek allies among Republicans where they can find them — perhaps never for removing the president, but perhaps for criticizing some of his actions, and perhaps at least for standing up for the rights of the chamber and of Congress.

It’s hard to make analogies to the Watergate case because partisanship was so different in the 1970s. What we can say is that in 1974, Democrats waited until they reached a point in which liberal Democrats in the House all supported impeachment and the swing groups, conservative Democrats and moderate Republicans, were on the fence. The equivalent situation these days would be if the dozen or so Republican senators who have spoken out most strongly against Trump and voted against him on such things as the border wall emergency were already declaring themselves impeachment-curious. We’re far from that point right now, and moving ahead prematurely is more likely to delay or prevent ever reaching that point.

Make no mistake: It is quite dangerous to have the president of the United States abusing the power of his office, especially with a special counsel report on the table that details actions that warrant his removal. But like it or not, impeachment is no magic pill that achieves anything just by invoking it. The fight for the Constitution and the rule of law is the correct fight for the House to take up, but so far impeachment just isn’t the right weapon to be using.

Indeed there’s been some discussion of whether McConnell could just refuse to hold a trial at all. I doubt McConnell would go that route, but it does seem to be clearly the case that the Senate has full authority to structure a trial however they would choose to do it – and McConnell and the Republicans have hardly been shy about violating procedural precedents and norms when they believe it’s in their interest to do so.

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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