In the debate over whether Donald Trump deserves impeachment, a curious partisan reversal has taken place. Trump’s opponents are suddenly constitutional originalists, seeking to ground their case for impeachment in 18th-century history and founding-era rhetoric. Meanwhile, his most persuasive defenders are more likely to invoke a kind of living constitutionalism, in which the limited, sporadic way that impeachment has been actually used over the centuries matters more than what the founders contemplated.
Thus the House Democrats’ brief for impeachment is studded with 18th-century quotes to prove that “high crimes and misdemeanors” covers all manner of corrupt uses of official power, easily encompassing Trump’s sordid behavior with Ukraine. And legal scholars have rushed to point out that in the English tradition the founders drew upon, the impeachment power was used for what legal historian Frank O. Bowman III calls “a striking array of abuses of office,” not just a few specific crimes.
Skeptics of the impeachment push, meanwhile, have pointed to the striking absence of presidential impeachments across the Republic’s subsequent history. Did James Madison favor an expansive understanding of the impeachment clause? Maybe so, but as an editor of his papers pointed out in The Washington Post, as president, Madison engaged in a dodgy, Trumpian scheme to use State Department money to buy documents purporting to prove his Federalist opponents were conniving with London; the Federalists cried foul, but there wasn’t even the beginning of an impeachment proceeding.
As with Madison, the anti-impeachment argument goes, so with most presidencies since. Yes, impeachment in theory covers all manner of sins. But though presidents have hardly been shy about pushing the limits of their power, impeachment in practice requires supermajorities and national consensus, which is why only one president in all our history has been pressured into resignation, and none have been removed.
In a Times op-ed last week, Josh Blackman of the South Texas College of Law Houston argued that this narrowing of the impeachment power reflects the difficulty of defining when politicized machinations shade into the abuse of power. Allowing that Trump is particularly crude about it, all presidents conflate their own political self-interest with the national interest — and so deciding when a president crosses the line and betrays his office is almost always a task best left up to the voters.
Both the strengths and limits of Blackman’s argument are distilled in one of his historical examples: Lyndon Johnson’s appointment of Supreme Court Justice Tom C. Clark’s son Ramsey Clark as attorney general, part of a maneuver to induce Clark’s resignation so that Johnson could then appoint the first African American justice and consolidate African American support.
This is a useful example because it’s been apparent for a while that Trump doesn’t want to be an American Mussolini so much as he wants to be a less legislatively minded LBJ — meaning that his conception of the presidency belongs to the middle of the 20th century, when a casual corruption was more commonplace, and presidents routinely used their powers to spy on political opponents (as LBJ did to Barry Goldwater) or undermine them, enable their private appetites (cough, JFK) and cover up their scandals. In this sense, Trump’s conduct is indeed more historically normal than the twilight-of-the-Republic rhetoric of his impeachers would suggest. But this defense weakens when you consider that post-Watergate America very clearly tried to establish rules against precisely the sort of behavior that was normal for JFK and LBJ.
How well those norms have held is a matter for debate, but there’s a reasonable case that presidents have been constrained by them. Clinton’s presidential priapism was less egregious than Kennedy’s and he got impeached for it; no modern president has imitated the Kennedy seraglio. The FBI’s misconduct in its investigation of the Trump campaign was still nothing like the FBI’s misconduct under J. Edgar Hoover. And despite Trump’s nepotistic impulses, even he hasn’t yet imitated Kennedy’s elevation of his own brother as attorney general.
So the more modest case for Trump’s impeachment isn’t that it upholds a standard that’s been honored since the founding. It’s that after Richard Nixon we made an effort to limit the space for presidents to abuse their power, such limits are good things, and letting Trump get away with his Ukraine maneuver would be a form of backsliding — one that would encourage further abuses from a presidency whose direct power over policy now arguably exceeds its powers in any era in the past.
And since Trump presumably will not be removed, in practice we’re testing a more modest argument still: that whether it’s perjury or a “perfect phone call” with Ukraine, impeachment-without-removal can function like an act of censure, a punishment that restrains misbehaving presidents without actually removing them.
As a system, this obviously pleases nobody. But in the debate I’ve just sketched it does offer something to both sides. The power to define and condemn an abuse of power rests with the Congress, as Madison and Hamilton imagined. But how severely to punish the offender will usually be — as it will be this November — for the voters to decide.
Ross Douthat writes for the New York Times. His syndicated column appears on Wednesdays.