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December 18, 2005

The bar stays put

Nicholas Beaudrot writes:

Like Hilzoy, I think that the Clinton impeachment has raised the bar for what ought to be an impeachable offense. Politically, if the opposition party calls for every President's head, we will have turned what ought to have been a very solemn process into nothing more than a political tool. From a policy perspective, the impeachment process will stall all other legislative and policy work for at least two years of each Presidency, which might be a good while reactionaries are in office, but bad when the reactionaries hold Congress and decide to investigate a reality-based President.

The Clinton impeachment raised the bar for impeachable offenses? How is this even possible?

Either the Republicans were within their rights to impeach Clinton, or they abused the impeachment process. Either way, Clinton's impeachment shouldn't affect what constitutes an impeachable offense for Bush.

Fairness requires that standards be upheld over time. What was impeachable for Clinton should be impeachable for Bush and all who come after, unless Clinton's impeachment was an aberration.

If anything, the Clinton impeachment drastically lowered the bar relative to historical standards. Clinton's offenses were a far cry from high crimes and misdemeanors as Americans previously understood them.

However, those of us who considered Clinton's impeachment to be an abuse of power shouldn't demand impeachment for equally trivial offenses. To do that would be to concede the legitimacy of the standard set by the Republicans in impeaching Clinton.

Perhaps by reverting to historical standards for impeachment, the Democrats would be raising the bar relative to the the artificially low standard set by the Clinton fiasco. However, some Democrats seem to be arguing that Clinton's impeachment raised the bar relative to some other standard. For example, it has been argued that the recency of Clinton's impeachment raises the severity standard, i.e., that we should think more carefully about subjecting the country to two impeachments so close together. Personally, I don't think that's relevant. Presidents deserve to be rebuked for high crimes, regardless of the fate of their predecessors.

Nicholas is arguing that we should raise the standard for impeachment to prevent the process from being hijacked by political partisans. He thinks the Democrats should set a good example. It's absurd to think that Democrats can set any kind of example for Republicans at this point. The Republicans invented the nuisance impeachment, and they aren't going to be shamed into refraining when it's their turn again.


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» Impeach Bush from Dadahead
The point of impeachment isn't to score political points for Democrats; it's to hold a criminal accountable for his actions. Its justification is deontological, not consequentialist. We have a duty to prosecute Bush for his crimes. [Read More]


Impeachment is largely unprincipled by design, so it's dangerous to try to make principled arguments about how it should work. Still, I think there are a couple areas on which your logic is a bit shaky.

Let's start from the premise that the "high crimes" definition is mostly nebulous and open to be filled with whatever content the relevant trying Senate prefers. This seems like a defensible position, since a successful removal from office wouldn't be judicially reviewable. If, then, it's a definition that is filled provisionally and strategically, then the Clinton impeachment seems to have genuinely raised the bar simply because it failed so embarrassingly. I'm not convinced that Republicans didn't just luck out of it doing more long-term damage than it did, and I know Republicans who feel the same way. So, prior to the Clinton impeachment, there seemed to be a stronger case for the proposition that it was wise to impeach a President for perjury in a sex harrassment investigation. Now, I don't think there's a lot of support for that proposition. So, in that sense, the bar is raised.

Basically, I doubt the assumption that there even exists a workable standard for abuse of power in impeachment. Early in the republic, impeachment of judges was regularly tossed around as a threat for entirely political reasons, and no one seemed incredibly troubled by the legitimacy of that that I know of. The different environment now seems to flow from changes in public perception, not any kind of doctrinal evolution, because impeachment continues to be pretty much a doctrinal void. The Clinton ordeal both changed and revealed public attitudes, and that is why it's relevant.

Eli, very interesting analysis. Thanks.

What do you make of Democrats who argue that the Clinton impeachment would make it harder (or harder to justify) impeaching W. for a public spying scandal?

I agree that Democrats should set a good example, but that doesn't mean abandoning impeachment when the bad act of a president warrants the process. The bar is fixed by the Constitution.

I suppose the concern now is that any impeachment process now will look like Democrats engaging in political revenge for the last one and that impeachment, intended to protect the system of checks and balances, will become little more than an exercise in political power and a regular event to be endured by 2nd term presidents.

However, that perception is the fault of the Republicans who impeached on the flimsiest of excuses, not to bring an out-of-control president to heel, but out of pure bloody-mindedness. It was a temper tantrum, pure and simple. The outrage over Clinton's actions which led to impeachment was disingenuous, to say the least. Viewed from outside the US, it was hard to believe the energy being wasted on such a ridiculous case. (Oh, that's right... It was about the lying; not the sex).

The Democrats (or more correctly, Congress as a whole), have a duty to make it clear that any decision to engage in impeachment procedures is based on this president having violated the basic tenets of the Constitution. He has intentionally ignored his oath and committed illegal acts. It's about the Constitution, the law AND the lying.

The bar doesn't move.

An impeachment is like an indictment. People who have a lot of evidence against them deserve to be indicted. Whether their cases are heard before a grand jury (or the Senate) shouldn't depend on whether it's expeditious to enforce the law in this particular case.

George W. Bush is an American who broke the law and broadcast his confession to millions of viewers. He violated the law, and probably the Constitution as well. We can't just let that go. If we did, we'd be admitting exactly what Bush is claiming: That the president is above the law.

I think I disagree that the Clinton impeachment was an "embarrassment" to the Republicans. Yeah, they lost the case. But I think they won the war by painting Democrats as immoral, weak-kneed wimps. And Clinton will forever be footnoted.

I think the Clinton impeachment definitely lowered the bar. But. It's a moot point because the "bar" is not set by law. It's set by politics. The comparisons of Bush's abuses vs. Clinton's is proof of that very fact.

There will always be those who will wring their hands about putting the country through the "trauma" of another impeachment. And true, it would make it seem as if we're unstable, but if he's guilty of delibrately violating the constitution to spy on his own citizens, it would be worse not to hold him accountable. Concerns about the public's psychological state are overblown anyway. You're so right: setting an example for these Republicans? That's a laugh.

Hear, hear.

It is widely held that the frivolous impeachment of Clinton was an act of revenge by the Republicans for what many of them (particularly the Reagan-Bush coterie) saw as an equally-if-not-more-so frivolous impeachment of Nixon.

Which ought to give a hint as to why so many conservative Republicans are not screaming bloody murder about Bush II's overreaching, either.

I think the Clinton impeachment certainly creates an obstacle because it created an environment of skepticism surrounding the impeachment process. But I don't think it'd be an insurmountable obstacle, because this violation of law is of such a different character. It involves behavior that's more central to the president's actual duties, it involves a pattern of repeated violations, and it wasn't created in the course of a separate investigation.

I can't think of a more paradigmatic situation for impeachment than the discovery of a major pattern of violating the law in a way that only the executive could. So, though the votes aren't there, I'd at least provisionally say that this would be a good flap to do it over.

All this is simply anticipatory quailing, anticipating a Republican counterattack on what the GOP will perceive as a political attack.

The most ridiculous thing about the modern Democrat is that when a Republican raises the cry, "You attack us for something we've done? That's Shocking! And Partisan! And Frankly, I'm Appalled," so many Democrats say, "Oh, dear. The Republicans say I'm doing something Shocking. Heavens to Betsy. I should back off." Of _COURSE_ the Republicans will say that! It's a political tactic. If the Democrats are doing the thing based on a principle instead, then that's enough. Unfortunately, too many Democrats, like too many Republicans, can't think about whether to blow their nose without holding a finger to the wind first.

"But I think they won the war by painting Democrats as immoral, weak-kneed wimps. And Clinton will forever be footnoted."

Recent Republicans are well-served by an "Imperial" presidency, and whatever mysticism and symbolism is invested in the office and the man. It is always:"Reagan won the cold war." This is why the Nixon Impeachment was such a trauma for the party, why they tried to impeach Clinton, and why they continue to support Bush even after differences on policy.

It does not serve the Democrats as well to have the President be the symbol and focus of the Party. A weak President will lead to a stronger Congress and especially a stronger bureaucracy and professional executive branch. I do not understand why we take impeachment so seriously. I see it as little different than a vote of "no confidence" in a Parlmentary system.
We certainly see Blair and Sharon as in political difficulty, but we do not see their nations as in a state of catastrophe because of a possible change of leadership.

>I see it as little different than a vote of "no confidence" in a Parlmentary system.

Agreed. And a well-earned vote of "no confidence," in my opinion.

the bar is exactly where it always has been, and always will be--an impeachable offense is whatever 2/3 of the Senate says it is. It goes without saying that Bush hasn't reached that standard, so what's the point?

I see a considerable difference between a vote of "no confidence" and impeachment. No crime is necessary to precipitate a non-confidence motion. Impeachment is restricted to specified bad acts and crimes.

In a constitutional republic, particularly where the head of state and the head of government are vested in the same seat, failure of the legislative body to approve an annual budget or other money bill will not necessarily bring down the government. In a parliamentary democracy, the same failure requires the head of state to either reform government or issue a writ of election.

I'm not sure that I am saying anything substantively different than come of the above comments, but . . .

I think the bar is raised to the extent that the Republicans trivialized the impeachment process. In order for the Democrats to create an appearance of a legitimate and non-trivial accusation/process the accusation must be self-obviously a high crime and misdemeanor. This is to say the accusation must be so very serious and obviously appropriate that the voters (the ultimate tribunal) should not be inclined to associate or equivocate a Bush impeachment with the Clinton impeachment.

This is a wholly political consequence of the Clinton impeachment. There is no Constitutional basis for saying that the impeachment bar has changed. For the time being, however, the crime/evidence on which a Bush impeachment might be based must clearly outstrip the crime/evidence used in the Clinton impeachment. This is only an issue of appearances and electoral consequences.

The very act of impeachment may well de-criminalize the illegal acts of a criminal Bush administration by associating them with the non-criminal acts of the Clinton administration. At least in the minds of the voters.

Lindsay: "the bar" I referred to in my post was the one (in my mind) that determines whether I am going to call for impeachment. I basically think that impeachment is a horrible thing for the country, especially if it is trivialized, and thus that it's the right thing to do only if the alternative is even more horrible. (One of many reasons why I thought the impeachment of Clinton completely and totally wrong.)

Rightly or wrongly, I think that impeaching two Presidents in a row is even more horrible, and thus the bar got higher. As I said in the post on WM, I realize that this rewards the very people who gave us the impeachment of Clinton. It's not fair. But I think that there would be cases in which I would think: OK, I would call for impeachment over this if it were 1990, but I won't now.

Of course, in the original post, this was all a preface to saying: However, this NSA story, in which the President orders people to break the law, vaults over even my new, higher bar.

I think it's a political calculation. You're right that Bush should be impeached. I just suspect that the media will use a Bush impeachment as an opportunity to paint Democrats as playing partisan politics when we're at war. Unfortunately, that's a story that would have traction in the American imagination, even as it's untrue.

The problem with impeachment is that a simple personnel action (this clown was a mistake, dump him) should have been formulated as a vote of no confidence, but instead was encoded into the Constitution as a criminal procedure. Due to this, the process is far more emotionally charged, which makes it far more manipulable, and consequently it develops a far larger energy barrier and inherent momentum.

Which is to say, once you get the votes for an impeachment, you have to sell it with character assasination. By trivializing impeachment in the Clinton fiasco, the Republicans have probably made it radioactive for at least 20 years.

All this talk of impeachment warms my heart, but then I feel a chill. Because if Bush is impeached, we get [shudder] President Cheney. Unless he was also indisposed (on trial for something related to the Plame leak, perhaps) in which case we'd get...President Pelosi? That would be kind of a cool result.

>President Cheney.

Woah. _I_ just shuddered.

>Unless he was also indisposed (on trial for something related to the Plame leak, perhaps) in which case we'd get...President Pelosi? That would be kind of a cool result.

And I think Nancy Pelosi just shuddered :D

"President Pelosi? That would be kind of a cool result."

And I just shuddered. President Pelosi through an impeachment process? Would never happen. I leave why it would not happen as an exercise. Assassination is the least of possibilities.

I think that lying about intelligence which got 2100 U.S. soldiers killed and ~$330B squandered (assuming we get out by 2007), repudiation of the Geneva conventions, disregard for the Constituiton of the United States in violation of the oath of office, advocacy of torture, and the outing of a CIA WMD investigation team based at the Brewster-Jennings company is a far cry from lying about a marriage infidelity. Sounds like the latest Republican talking points again to equate Bush's situation with Clinton's. And remember, Libby's obstruction of justice has served to solidify the theory that Valerie Plame was outed in retaliation of Joe Wilson expose of uranium enrichment, but is not conclusive. What if the objective of the outing was to halt the WMD investigations of the other agents based out of Brewster-Jennings. This outing occured at a time when the administration was playing fast and loose with the facts regarding WMD, and there could have been a plan to plant WMD in Iraq to validate the war that required that the Brewster-Jennings fron be knocked out. This obstruction of justice has served to cause the public to believe the facts most favorable to the Bush administration, that the outing was merely retalitory against Joe Wilson for his expose in the New York Times.

Fairness requires that standards be upheld over time. What was impeachable for Clinton should be impeachable for Bush and all who come after, unless Clinton's impeachment was an aberration.

Does anyone here not believe that the same people painting any talk of impeaching Bush as partisan and treasonous will not be among the first supporting impeaching the next Democrat president (assuming there ever is one again given the Diebold factor)?

For anything? Unpaid library fines? A speeding ticket from his or her teens? Picking his or her nose on the subway?


I should clarify that my concerns here are mostly political. I don't really know enough to know whether the bar for impeachment should be raised, but I am inclined to believe that at present lots of things that partisans would like to view as impeachable offenses will be perceived by the public (and portrayed by the media) as part of the standard Washington Partisan Food Fight. Invoking the WPFF story increases the risk of political backlash in the 2006 elections. This is not about setting a good example -- this is politics, it's a contact sport, and you have to punch back. I just don't think the impeachment charge is an effective punch, or perhaps more properly, I think censure (or a reprimand) has almost as much benefit with lower cost.

Upon reflection, my "raise the bar" comment is clearly incorrect. The proper statement, as you say, is that the Clinton impeachment saga should be ignored. Politically, a recent botched impeachment may have some impact. But, after reading some the Federalists papers, it's pretty clear that the founders intended impeachment to be something of a political judgement.

I also agree that the "higher standard" argument doesn't really work. Public opinion data shows that people are pretty cynical about politicians. Just because the public thinks one party is totally corrupt and incompetent does not mean they think the opposition is a bunch of saints. Usually, "higher standards" argument will not be taken terribly seriously in the Court of Public Opinion.

>this is politics,

I don't think this is politics. I think looking at it that way would be a bad mistake. I think this is the forcible restraint of someone who's destroying our Constitution and our country.

"I think this is the forcible restraint of someone who's destroying our Constitution and our country."

The constitution envisions impeachment as such. It's basically a tool to give the Legislative branch another weapon in bureaucratic war with the Executive branch. Which is, of course, clever. In theory, Congress's institutional jealousy/pride will cause it to assert itself over the Executive when the Executive disregards its will. In practice, impeachment will bring out factionalism, which ultimately makes it political. In eras of high partisanship -- that is, when there the partisan axis of Congress aligns directly the ideological axis of Congress -- which happened during the Post-Civil War era, the Gilded Agem, and Today -- this makes it virtually impossible to obtain an impeachment conviction. As best I can tell, the founders came up with no workable solution, and said something to the effect of "yeah, the impeachment process is messy and imperfect. but it's something, and it's going to be hard to fashion a workable standard. So we'll call it good enough and work on some other stuff".

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