Impeachment, R.I.P.

Year by year, Congress has destroyed itself as a check on the executive—after the Senate conviction vote, there’s virtually nothing left.

It’s worth remembering that the American Constitution almost didn’t get ratified. The document signed at Philadelphia may have patched over the worst of the framers’ disagreements, but it elicited significant backlash in the states. In Alexander Hamilton’s home state of New York, one prominent anti-federalist writing under the pseudonym “Cato” railed against the draft, criticized the proposed new president in particular as a quasi-monarch with the power of “oppressing his fellow citizens, and raising himself to permanent grandeur on the ruins of his country.”

Hamilton hit back in Federalist No. 69, published a few months after Cato’s shot across the bow. This president, a monarch? Quite to contrary, the American president was a mere “officer elected by the people for FOUR years” who remained “amenable to personal punishment and disgrace.” The American president was emphatically not a “sacred and inviolable” monarch, like the King of England the fledging American nation had fought to free itself from.

Today, no one actually squints at the president and sees a monarch, but many do worry that the American president is, in some troubling sense, “above the law.” They probably should, as the historical record reveals a consistent and growing trend of Congress’s inability—or refusal—to exercise its prerogatives as a coequal branch of government in order to check the president.

This weekend, the United States Senate voted 57-43 (ten votes short of the two-thirds majority needed to convict), to acquit Trump on a single count of insurrection. The vote raised an important question: If a president can go on the record attempting to steal an election, incite a violent insurrection against Congress, and still get acquitted, is the office of the president actually “amenable to personal punishment and disgrace” at all?

Saturday’s vote is not as surprising when viewed against the unprecedented expansion of the presidency over the past decades, and the concomitant recession of Congress as a capable coequal branch. However, this acquittal demonstrated one significant fact: Impeachment power, the most powerful check on executive overreach in Congress’s arsenal, may be a dead letter as well.

The twentieth century made the president more powerful than ever before. As America’s role in global politics grew, the executive’s foreign affairs and war powers became all the more important. The president’s domestic toolkit likewise grew, with executive actions opening up all sorts of domestic policy areas, from health care spending to criminal justice to environmental policy to education. The world also got faster, privileging the rapid response capabilities inherent in the executive: Today, the president can almost instantly deploy weapons to Africa, order a freeze on an accused terrorist’s assets, or respond to cybersecurity threats. In these situations, and others, a deliberating Congress is just too slow.

Then, of course, is the fact that the constitutional checks on the president have gotten weaker, notwithstanding halting efforts by Congress to rein the office in.

During the Vietnam and Nixon eras, when alarm about an “imperial presidency” was rampant, Congress responded with all kinds of slaps on the president’s wrist. Laws restricted the president’s ability to take America to war or to make independent use of appropriated funds. Campaign finance disclosures were mandated to avoid a repeat of Watergate. A special prosecutor was appointed to investigate the president himself, and inspectors general were seeded throughout the bureaucracy to keep an eye out for ethics violations. Congress even gave itself the power to veto, by a single chamber, executive branch decisions over governmental reorganization, immigration deportations, national emergencies, presidential papers, and many other areas.

However, most of these restrictions ended up more in the “bark” category than the “bite.” The Supreme Court invalidated the legislative veto in 1983, and presidents have overrun many of the others, formulating covert national security policy during the Iran-Contra scandal; essentially ignoring the War Powers Resolution during the Bosnian War, in Libya in 2011, and in Syria in 2014; and firing executive branch watchdogs and undermining the special prosecutor during Trump’s four years. Ultimately, form couldn’t change function: As the 20th century gave way to the 21st, it became clear that Congress was no match for the president.

Compounding the problem today is an unprecedented degree of political polarization, now at its worst levels in decades. The deeper the partisan divide gets, the less Congress resembles a seat of representative government, and the more it resembles a pendulum swinging violently between presidential cheerleader (when the president’s co-partisans have a majority) and obstructer (when the opposition is in the majority). This matters for two reasons. One, because either version still has Congress playing second fiddle to the president, and two, because reducing constitutional checks to partisan hackery has instilled a deep cynicism in the public, and this is a big problem for checks and balances.

Some scholars argue today that the “imperial presidency” is not a true threat because public opinion always stops a lawless president in his tracks. But as the failed impeachment shows, polarization has by now rendered the idea of “lawlessness”—like other issues from gun control to climate change—a question of party affiliation. As a result, Congress’s ability to stop an abuse of office has been hollowed out.

Investigation and subpoenas of presidential information? Yes, they’ll exist, but to little end if investigations and reports produce nary a ripple in public opinion. Transparency laws? Again, same problem. Any disclosure requirements that Congress legislates won’t mean anything unless the information disclosed has consequences. And when it came to Trump, it didn’t. The 56 percent of Americans who supported conviction were clearly not a large enough bloc to move the needle for his party.

For some, like constitutional scholar Phillip Bobbitt, Trump’s second acquittal was the correct result, because the Senate has no power to convict a former president once they’ve left office. Almost all impeachment scholars disagreed with Bobbitt’s reading of Article II. Yet on Saturday, 43 GOP holdouts stuck to this procedural argument, rejected by the vast majorities of legal experts, and already rejected by their own chamber.

But let’s be clear: the Constitution gives the Senate almost unbounded power to set its own rules for impeachment trials, and nothing in the text forbids the Senate from defining its own jurisdiction to cover a president who’s still in office at the time impeachment proceedings are started. In fact, the Senate already did this, when it voted last Tuesday that the trial was constitutional.

After the vote, GOP Senate Minority Leader Mitch McConnell (who voted to acquit) went out of his way in an unprompted speech to call Trump’s acts a “disgraceful dereliction of duty”—a strong statement from the leader of the GOP in Washington. However, the fact remains that McConnell, and his Republican colleagues in the Senate, had almost complete power over Trump’s political fate, yet they chose to duck behind party lines, just as they did last January during Trump’s first impeachment trial.

Even if acquittal was the fairest reading of the text, and even if it leaves the path clear for future criminal prosecutions, the Senate blinked on Saturday when faced with an opportunity to exert a powerful check on presidential excess.

For some observers, the result was good enough from a practical point of view (however unjustifiable from a moral-slash-legal standpoint). In the future, we can, and we will, resort to criminal prosecutions to cover this sort of fact pattern. But criminal laws don’t cover ordinary abuse of office falling short of criminality, like Trump’s attempted quid pro quo with Ukraine. Worse still, a glaring “January loophole” seems to have been opened that allows a president to try to steal an election, then escape punishment as his term ends. Whatever the Constitution says, it’s hard to imagine it was meant to allow a president to attempt to overthrow the government, provided he times it correctly.

Saturday’s events prove that that impeachment is effectively a dead letter as a check on the presidency, if for no other reason than that, in our divided era; and with our gerrymandered institutions, it is unimaginable to consider a situation in which a sitting president’s party won’t retain at least one-third of the Senate.

Over a hundred years ago, a political scientist named Henry James Ford referred to the impeachment power as “a rusted blunderbuss,” an ancestor of the shotgun the U.S. military phased out of use well before the Civil War. Impeachment is a clunky, archaic tool, but it doesn’t have to be a dead letter, provided there’s the will to act. Sadly, under a “separation of parties, not powers,” there’s little incentive for Congress to push back at all. There is a name for this: legiscide, the act of undermining and perhaps eventually destroying its power to make law. As a constitutional check, little by little, Congress is ruling itself out. So what tools are left?

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Andrea Katz

Andrea Katz teaches Constitutional Law and Comparative Law at the Washington University in St. Louis School of Law.