Elizabeth Warren is making a specious argument for impeachment. She is smart, well-versed in the Constitution, and my favorite U.S. Senator. But her argument in this case short-circuits the debate about removing Donald Trump from office.
I’ve provided a link to her remarks on C-Span. (Note: Filter by Speaker and select Elizabeth Warren for her remarks.) She has much to say that’s sound and well-supported. I agree with almost everything in her May 7 remarks. But I will concentrate on two places where her argument misfires. I’ll quote several sentences, to give context, and then focus in each case on a single sentence – critical to her argument – to show how things go wrong. Senator Warren concludes her remarks with these words:
This is not a fight I wanted to take on, but this is the fight in front of us now. This is not about politics. This is about the Constitution of the United States of America. We took an oath not to try to protect Donald Trump. We took an oath to protect and serve the Constitution of the United States of America. And the way we do that is we begin impeachment proceedings now against the President.
“This is not about politics.”
This is flatly, undeniably wrong, virtually by definition. When the senior Senator from Massachusetts – and a declared candidate for the Democratic nomination for President – speaks on the floor of the U.S. Senate about Constitutional responsibilities and impeachable offenses by the President of the United States that is political. It is absolutely about politics.
And that’s fine: that’s how our Constitution and elected government is supposed to work – through the political process. That’s exactly what the founders had in mind and that, in the best sense of the term ‘politics,’ is how democratic institutions work. Impeaching a president – as laid out in Article 1 of the Constitution – is a political process.
But of course Senator Warren is using ‘politics’ as a slur, not as a straightforward, literal description of democratic processes. (And that’s okay. She’s running for President. I readily grant her ample leeway to make her political points. But this doesn’t keep us from logically examining what she has to say.)
Senator Warren said on the floor of the Senate (as she has said publicly on other occasions) that there is no “political inconvenience exception” to the Constitution:
I took an oath to uphold the Constitution of the United States, and so did everybody in the Senate and the House, including the Majority Leader. And now we must act to fulfill that oath. There is no political inconvenience exception to the United States Constitution. If any other human being in this country had done what’s documented in the Mueller report, they would be arrested and put in jail.
“There is no political inconvenience exception to the United States Constitution.”
That sounds good, doesn’t it? But it is not defensible – by itself – as justification for impeachment.
A simple thought experiment will illustrate this point:
Which is better (1) or (2)?
- The House of Representatives impeaches Donald Trump in 2019 or 2020; the Senate fails to convict; Trump is reelected and serves until January 20, 2025.
- Donald Trump is not impeached, is defeated in his reelection bid, and the Democratic nominee for President takes office on January 20, 2021.
Now, we can disagree about the consequences of impeaching Donald Trump. Senator Warren and all defenders of impeachment can reject choice number (1) because they believe that things will turn out differently if the House impeaches Trump.
But that’s my point: The consequences of the steps political actors in the U.S. Congress choose to take are critically important in making a judgment. Rejecting a disagreement about impeachment as political inconvenience is a specious argument. If you want to make the case for impeachment, you must be prepared to engage in a discussion about how this course of action is likely to play out.
It is unfair to imply that Congressional opponents of Trump lack principle and are evading their responsibilities when they oppose impeachment. To the contrary: it is their Constitutional (and moral) responsibility to weigh the consequences of their actions clearly and carefully. (It is a requirement for all moral agents that they don’t blithely ignore the foreseeable consequences of their actions.)
There is no political inconvenience exception to the Constitution. Neither is there an injudicious clause to the Constitution that requires Congress to hide its eyes from the consequences of its actions. Or, more precisely: … for Congress to act without even considering the consequences (which we can’t know for certain, but which deserve clear, careful consideration).
Article 1 of the Constitution authorizes Congress to act. It grants the House “the sole Power of Impeachment.” It does not require impeachment. That’s a political judgment for the House.
Senator Warren can do better than this. Actions have consequences. Consequences matter in judging the right course of action.
In a future post, I will spell out the fraught considerations that come into play in assessing the likely consequences of impeachment.