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The following is presented as part of The Columbian’s Opinion content, which offers a point of view in order to provoke thought and debate of civic issues. Opinions represent the viewpoint of the author. Unsigned editorials represent the consensus opinion of The Columbian’s editorial board, which operates independently of the news department.
News / Opinion / Columns

Feldman: Impeachment inquiry marks low point in history

By Noah Feldman
Published: September 16, 2023, 6:01am

The decision by the House Republican leadership to open an impeachment inquiry into Joe Biden — without any evidence of wrongdoing — marks a low point in the mis-deployment of the Constitution’s mechanism for removing a sitting president. Bad as it is, however, the inquiry itself won’t put the nail in the coffin of the impeachment process. Impeachment will only be dead as a useful constitutional tool if House Republicans actually vote to impeach Biden without any credible proof of high crimes and misdemeanors.

The reason the framers of the Constitution gave Congress the power to impeach the president and the Senate the power to try the impeachment was that they feared the dangers of the sitting president manipulating the electoral process to stay in office. As William Richardson Davie of North Carolina put it at the constitutional convention in 1787, if the president couldn’t be impeached, “he will spare no efforts or means whatever to get himself reelected.” Impeachment, Davie concluded, was therefore “an essential security for the good behaviour of the Executive.”

In practice, putting elected politicians in charge of removing an elected politician was always going to be political.

Yet the framers, who didn’t care much for political parties, still thought that impeachment could be an effective remedy against a president who tried to corrupt the democratic process. That’s because they believed the republic rested on a bedrock of political virtue — in essence, the basic goodwill of citizens who care about the common good and want the Constitution to be upheld.

That idea of virtue made the framers think that impeachment could work even in the face of potential partisanship. Similarly, they didn’t expect that impeachment would be used as a purely political tool to harass or embarrass a sitting president.

They were right, at least for most of U.S. history.

If Biden is impeached without indication that he’s done anything wrong, it will demonstrate that Republicans have decided to use impeachment as a tit-for-tat weapon, unmoored from its original purpose of protecting the democratic process. Virtue won’t have anything to do with it. Impeachment will have become a purely partisan game.

That ultimate partisanization of impeachment would make it all but impossible for future Congresses to express genuine condemnation of a sitting president’s corrupt conduct. The entire impeachment process would likely turn into just another quotidian tool of gaming the system for political advantage. If any president can be impeached without real reason, it is likely that every president will be impeached so long as the opposing party controls the House.

The loss of impeachment as a meaningful mechanism for restraining a sitting president would weaken our constitutional system. On its own, though, it wouldn’t sound the death knell of the Republic. If the framers had left impeachment out of the Constitution in the first place, the United States would doubtless still be around today, in much the same form that it exists.

Yet transforming the Constitution’s break-glass emergency solution for removing a corrupt president into just another tactic of political aggression would represent a serious loss — the loss of the kind of political virtue that enables Americans to agree that some conduct by a president is generally beyond the pale. In that world, a future Richard Nixon would tough it out, gambling that members of his own party wouldn’t vote to remove him from office even if he were impeached by the House. We would be a step closer to becoming a banana republic, where corruption and coups are everyday occurrences, not outlying outrages condemned by we, the people.

Noah Feldman is a Bloomberg Opinion columnist and professor of law at Harvard University.

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