Pelosi’s Stance on Impeachment Needs Some Explaining

(Bloomberg Opinion) -- In an important statement, House Speaker Nancy Pelosi said, in response to an interview question, “I’m not for impeachment.”

She explained: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.”

There is a lot of sense in her comment. But it can easily be read in a way that puts it at odds with the Constitution itself. It’s best to assume that Pelosi did not mean it in that way. But on such a fundamental question, we should get very clear on the constitutional responsibility of the House of Representatives.

With impeachment, let’s insist on a firm commitment to political neutrality. If you like a particular president and agree with his policies, you should assess an alleged basis for impeachment by asking: How would I evaluate that claim if I disliked him and disagreed with his policies? 

It’s at least as important to say that if you dislike a particular president and abhor his policies, you should assess an alleged basis for impeachment by asking: How would I evaluate that claim if I liked him and loved his policies?

Under the Constitution, the grounds for impeachment are “Treason, Bribery, or other high Crimes and Misdemeanors.” Suppose that a president commits a clearly impeachable offense – by, say, committing treason or by using the apparatus of government to violate people’s rights and liberties. Suppose, too, that the president’s party remains intensely loyal to him, thinking, “True, he’s a jerk, but he’s our jerk.”

In those circumstances, the Constitution does not license members of the House of Representatives to refrain from impeachment, on the ground that it would not be “bipartisan” and would “divide the country.”

No one should forget that the impeachment clause was written against the background of the American Revolution. The clause was specifically designed as a response to those who feared that by establishing a powerful president, the new Constitution would re-create a kind of monarchy, and thus betray the principles for which the Revolution had been fought. (The Declaration of Independence reads a lot like Articles of Impeachment.)

A reading of the debates in the founding era suggests that without the impeachment clause, the nation would have refused to ratify the Constitution. To those who are inclined to take Pelosi’s words at face value, it is worth pausing over George Mason’s critical words at the Constitutional Convention:

No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?… Shall the man who has practiced corruption & by that means procured his appoint in the first instance, be suffered to escape punishment, by repeating his guilt?

In this light, it defies belief to think that the impeachment process is purely “political” -- or that the House of Representatives may decline to proceed against a president who has engaged in treason, produced “the most extensive injustice,” or otherwise committed a clearly impeachable offense.

If Pelosi meant to say otherwise – to suggest that the House can refrain from acting unless impeachment is “bipartisan” or not “divisive” – she was speaking in patent defiance of the constitutional plan.

But it would be possible to understand her words more narrowly.

In some cases, reasonable people might agree on the constitutional standard while disagreeing on the facts. Pelosi might have meant that impeachment isn’t a good idea unless there is “compelling and overwhelming” evidence that the president actually engaged in actions that would amount to an impeachable offense. If so, her position is perfectly sensible. 

In other cases, reasonable people might agree on the facts but disagree about whether the constitutional standard is met – about whether a president’s actions count as a “high crime and misdemeanor.” It is important to note that in their context, those words are far less ambiguous than they seem. They establish a pretty clear legal standard.

Some cases do fall within a gray area. (Article 3 of the impeachment articles against President Richard Nixon, pointing to his failure to comply with congressional subpoenas, is an example.) It is hardly crazy to insist that if it isn’t clear whether the president has committed what the Constitution deems to be an impeachable act, the House is entitled to refrain from acting, at least when the nation is sharply divided along political lines.

There is a much larger point here. During the outrage and battles of the moment, the Constitution provides a lodestar, focusing us instead on enduring ideals.

In the 18th century, a lot of people put their lives on the line for those ideals. In the founding document, they turned one of their ideals into a principle, which deserves to be put in bold letters: If a president has committed a clearly impeachable offense, the House of Representatives is obliged to impeach him -- even if the process turns out to be “bipartisan” or “divisive.”

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

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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