Around the time the Framers were writing the U.S. Constitution, there was a notable impeachment debate in England. Warren Hastings, the former Governor-General of Bengal, was being impeached in Parliament by a group of members led by Edmund Burke.
To remind, Burke is generally considered the father of modern conservatism. He is also known for his unique approach to the American Revolution (he wanted to grant the colonists full rights as British Subjects), later sounding the alarm on the revolution in France and promoting the idea of Burkean Representation, or the notion that you elect the mind of representatives, not their votes. To the say the least, in his day, Burke was an iconoclast.
Meaning of Impeachment
On the Hastings impeachment, Burke was no different. Even though Hastings had already left office, Burke insisted on pursuing the impeachment on the grounds that corruption in government is a matter of public policy that needed to be debated.
Burke believed that Hastings had used his position to enrich himself while abusing his Indian subjects. Burke’s concern for the rights of East India’s colonial subjects was way ahead of its time, and the idea that there was something wrong with the Empire enriching itself at the expense of its colonial subjects was laughable. However, Burke believed that impeachment was one way, perhaps the only way, to initiate a public discussion on such topics.
This incident, which was surely on the Framers’ mind in 1787, must cause us to reflect on the meaning of impeachment. Obviously, there are partisan and personal implications of impeachment and removal. But just as importantly, the impeachment process allows us to have a public and frank discussion about what constitutes corruption in the American government.
Trump’s Impeachment
Whether President Donald Trump was actually impeached and removed will, in the long run, be less important than the debate we had on what is right and proper behavior in the Executive Branch. And if this behavior happens all the time, as the Republicans have argued, then it is high time that we discuss whether this behavior is ever right or wrong, to what degree, and under what conditions.
Think of impeachment as part of Congress’ oversight function. Because the Constitution grants office holders set terms, if the concept of impeachment hadn’t existed in the 18th century, it would have had to be invented.
In a parliamentary system, there is a corrective for suspect leadership: new elections. But since we don’t have that in the United States, we need a way to remove malign public officials before the end of their terms. Granted, it is more important to have this authority as it applies to judges who serve for life.
But, on occasion, it might be necessary to apply impeachment to elected officials and their appointees. However, the argument that there is always going to be another election is a powerful one and certainly applies in this case.
And even if the president is exonerated in the Senate, we’ve had a public discussion on the proper role of the executive in government. Can the president refuse to cooperate with congressional investigations? Is it okay to run backchannel diplomacy through the use of private citizens? Can the president withhold appropriated funds for policy purposes not envisioned in the original law? Is it fair for Congress to investigate the president’s personal dealings, say, by requesting he turn over his tax returns? And these aren’t just questions of “either/or” but rather, these are questions of a matter of degree and under what circumstances.
Therefore, it is important to think of impeachment, as Burke did, as a public policy process.
Impeachment as Public Policy Process
Impeachment is not criminal trial. Had President Trump been convicted and removed, there would have been no criminal penalties. The president is not indicted in the manner of a criminal trial, nor is the trial in the Senate conducted under criminal procedure.
Indeed, the president doesn’t even have to commit a crime to be removed. But during the trial, we have at least had a frank discussion of what is right and wrong behavior of our public officials.
If we think of Trump’s impeachment as a public policy debate instead of a trial, here are some of the takeaways.
First, we’ve always known that impeachment is a political and not legal process. The Republican Party has reminded us of that.
Second, polarization makes impeachment more likely, but removal all but impossible.
Third, as a public policy debate, this impeachment is not precedent for anything. It is not the same as a Supreme Court decision, and if the shoe were on the other foot, and Barack Obama was president and had done exactly the same, Republicans would have been on board for impeachment. Indeed, the essence of the public policy process is to overturn precedent.
Is this a dangerous situation? It sure is. But as someone who lived most of his young life under the threat of Soviet nuclear attack, the prospect of a Trump dictatorship in the manner of the German National Socialism is just as unlikely and a lot less final. We’re still a long way from a dictatorship in the United States.
Finally, as a public policy process, the Trump impeachment has cast into stark contrast the philosophical gap between the Democratic and Republican parties. On the assumption that we are going to have a reasonably free and fair election in November, the Trump impeachment will help voters decide.
Obviously, given the charged atmosphere of the partisan debate, the impeachment process has generated a lot of heat and discomfort. But if we step back and look at impeachment as part of the legislative process, we can turn down the heat and consider an important policy issue, one that predates the Trump administration and has been brewing ever since the rise of the Imperial presidency.
Let us welcome the debate, and when it comes to our positions, give no quarter. Because what we are determining here, no less than in the passage of a law, is the future of our government.