Jerry Nadler is Appropriately Cautious About Impeachment

There’s a long piece in The Atlantic by Russell Berman on Rep. Jerrold Nadler and how he feels about impeachment. I recommend you read it for several reasons, including that it’s very informative and quite likely predictive of what will happen if the Democrats take control of the House of Representatives in January. If the Democrats are running the House, it’s highly probable that Rep. Nadler will become the chairman of the House Judiciary Committee, and that’s the committee that would consider issuing articles of impeachment for the whole House to consider. Therefore, Nadler will have more say in what happens or does not happen than anyone outside of the leadership.

Hopefully, you’ll be comforted to know that Nadler is not prejudging the case. He’s not making any promises. Even if there are clearly impeachable offenses, he’s not committed to pursuing impeachment:

Nadler would not rule out an impeachment move even if a conviction in the Senate was unlikely. But, he said, it could not be a completely partisan effort; to move forward, Democrats should be confident that by the end of the process, they could convince at least some of the president’s supporters that impeachment was necessary. Without that support, Nadler told me, the effort would backfire. “You don’t want a situation where for the next 20 or 30 years, half the country is saying, ‘We won the election, you stole it,’” Nadler said. “You don’t want to tear the country apart.”

There’s a logical flaw in that response, but it doesn’t make it less appropriate as an answer. In order for the Democrats to be accused of stealing the election, Trump would need to be convicted by the Senate, and in that case it’s clear that many Republicans would have been convinced by the end of the process. The real point is that it could do more damage to the country to impeach the president and then have him acquitted than it would to let things go until the 2020 election. Of course, we could still assign more blame to the Republicans for acquitting than the Democrats for indicting, but we don’t want Congress setting the precedent that what Trump has done is not impeachable. And that puts Nadler in a possible quandary where he could create that precedent by not pursuing impeachment because he doubts the Republicans would back him up.

His first responsibility, then, is to not make himself a lightning rod. He will need to be seen, as far as humanly possible, as a fair judge of the facts and not someone pursuing a vendetta or a purely partisan cause.

In fairness, Nadler is being consistent. He was on the Judiciary Committee in 1998 when they voted out articles of impeachment against Bill Clinton, and at the time he characterized the effort as an attempted coup d’état.

As Nadler saw it, committing perjury to cover up a consensual sexual affair might have been a federal crime, but it did not rise to the level of an impeachable offense, which the Constitution defines as “treason, bribery or other high crimes and misdemeanors.” “The Framers of the Constitution didn’t think Congress should be in the position of punishing crimes,” he said at the time, at an anti-impeachment rally in New York. “Impeachment was seen as the defense of the republic and of liberty against a president or other high official who would abuse the powers of his office to make himself a tyrant, to undermine the other branches of government, or to undermine constitutional liberty.”

Clinton’s alleged crime—lying about sex—didn’t come close to meeting that standard, Nadler said. “When the president would misuse his power to become a tyrant, to subvert constitutional liberties, that’s when a president ought to be impeached,” he said at another rally, in front of the Capitol. “But not for this.”

Nadler correctly points out that there are some crimes that are not impeachable and some acts that are technically legal but would justify impeachment. Of the latter, abuse of the pardon power is one:

When I asked if there was a particular action Trump could take as president that Nadler would definitely call impeachable, he relayed a scene from the 1788 convention where Virginia ratified the Constitution. In discussing the unlimited presidential-pardon power, he explained, one delegate asked what would happen if a president engaged in a criminal conspiracy and then pardoned his co-conspirators. Nadler said: “And James Madison answered: ‘Well, that could never happen, because a president who did that would be instantly impeached.’

“They viewed the impeachment power as a limitation on the pardon power,” Nadler continued. “What that also means is if the president pardoned co-conspirators—if we concluded that he was in a conspiracy with various other people and the Russians to use foreign influence on the election, and in order to stop that investigation he issued pardons to his co-conspirators—well that, we are told, is impeachable.”

There are some other quasi-legal acts that will be difficult to arbitrate, like violations of the Emoluments Clause of the Constitution. A Democratic Congress would probably be most responsible on that issue if they first tried to compel the president to change his business practices and arrangements to bring them into compliance before leaping to include foreign governments’ payments to his hotels and resorts among the articles of impeachment.

Nadler understands that impeachment is ultimately a political rather than a legal act, although it also fills in for the lack of any other avenue for true legal accountability. It’s also one of only two ways (the 25th amendment being the other) that the country can rid itself of a president in the middle of his term if that becomes unavoidably necessary.

It may be less what Trump has done in the past that makes this necessary than what he’s incapable of doing in the present and future. That’s what Bob Woodward is saying here: “I’ve never seen an instance when the President is so detached from the reality of what’s going on. This has not been treated seriously enough. Some of the things Trump did and does jeopardize the real national security.” Overarching any argument over the particulars of collusion or bank, wire, or election fraud is the simple fact that President Trump cannot continue to serve as president because he cannot be trusted with the responsibility. In that sense, treating him like Al Capone and nailing him for the lesser crime to achieve the correct result would be justified on utilitarian grounds. But, truthfully, it’s the totality of the reality we’re facing that serves as the ultimate case against the president.

When Nadler says that impeachment is a way to come to the “defense of the republic and of liberty against a president or other high official who would abuse the powers of his office to make himself a tyrant, to undermine the other branches of government, or to undermine constitutional liberty,” he’s describing a standard that has already been met. Trump has undermined the intelligence community, the justice system, the FBI, and the courts, and he makes routine threats against the free press. He’s also undermined our system of free elections and done untold damage to our alliances and ability to project moral leadership on the world stage.

Despite all of this, Nadler insists that he has not yet seen a green light for impeachment: “I haven’t seen any information that is proof positive that he’s committed impeachable offenses. I’ve seen a lot of suggestive things.”

That might stick in your craw, but it’s the correct stance to take on pretty much every level. As a strictly political matter, the Democrats want to focus on what they can do for their constituents on issues like health care rather than what kind of fight they can pick with Donald Trump. They want to focus on what the Republican Congress is doing wrong, too, since the upcoming elections are congressional elections. As a strategy for actually having a successful impeachment process, it’s also imperative that Nadler sound as impartial as possible and even dubious on the merits. This is especially true because the hardest evidence against the president is still in the Special Counsel’s hands and Nadler shouldn’t prejudge what it contains. It’s also the right position to take on the merits. Nadler needs to lead a process but he’s not capable of leading Republican opinion. His job is to provide a platform that allows Republican lawmakers and supporters to come to the conclusion that has already been reached by many members of Trump’s inner circle. He cannot protect the country by failing to pursue impeachable offenses or by pursuing them and winding up with a Senate acquittal. Therefore, he needs to walk slowly so that others don’t fall too far behind.

Many skeptics think the Republicans in the Senate will stick with Trump no matter what. That’s not true. But they won’t turn on him unless or until they have much more cover to do so than they have now. If they see Nadler prejudging the evidence and making promises, they’ll close their ranks and lose confidence in the process. Remember, they want Trump gone too. Most of Trump’s cabinet probably is further along than the Senate. Things are moving in the direction of removal on their own, and part of Nadler’s job is simply to avoid impeding the progress.

And, of course, he needs the Democrats to win control of the House before any of this is relevant. We all need that.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.