At one point, House Speaker Nancy Pelosi’s reluctance to pursue impeachment could certainly be defended as both politically and constitutionally prudent, even if President Trump had clearly committed impeachable offenses. Waiting for Robert Mueller's final report (even in redacted form) before moving forward was a defensible, deliberative position.
This article first appeared in Salon.
But that time is gone, and Pelosi’s position no longer makes any coherent sense. "Trump deserves impeachment — so let’s defeat him at the ballot box" is not a sound argument, especially from an institutionalist perspective. There's also no guarantee it will work, as Adam Jentleson, former chief deputy to Sen. Harry Reid, points out at GQ: Remember how Democrats cleverly chose not to fight for Merrick Garland’s Supreme Court nomination, relying on defeating Trump in 2016 instead?
Pelosi is arguably the most effective Democratic legislative leader of the modern era. But we’re in the postmodern era now, an era of worldwide democratic backsliding, and the very existence of our own democracy is up for grabs. Pelosi isn't the only one making fundamental mistakes in how she thinks about impeaching Donald Trump, but she's definitely the most important one.
When Trump fired FBI director James Comey — the act that triggered the Mueller investigation — Aziz Huq, co-author of a worldwide study on the subject, wrote "This is how democratic backsliding begins," explaining that:
[T]he road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers.
This description, derived from more than three dozen examples in more than two dozen countries, aptly characterized the Comey firing, but it applies just as well — and more urgently — to Trump’s far-reaching battle against impeachment, and against congressional oversight more broadly. Pelosi’s failure to grasp the nature of the struggle we’re in is the root misunderstanding in the crisis facing us.
If one ignores the threat of democratic backsliding, then it could be rational, pragmatic and even principled to be guided by fears of a political downside to impeachment, and to view everything through that lens. But that’s a threat one cannot ignore: Even if you view the argument in Pelosi's terms, the political downside of refusing to impeach is potentially far greater than the downside of impeachment itself.
There are more immediate downside costs as well, as Jentleson’s bluntly-titled GQ article, “The Political Costs of Not Impeaching Trump” reminds us. “Being in the minority limited our options for overcoming McConnell’s blockade” of the Garland nomination, Jentleson writes. “But whenever we started to contemplate more aggressive tactics, they were dismissed on the theory that the upcoming election would sort everything out. Why rock the boat, we told ourselves.”
In other words, Trump was far behind Hillary Clinton in the polls, so why bother fighting McConnell? Democrats would surely get their Supreme Court nominee eventually. We know how that worked out: McConnell’s outrageous move proved crucial in creating just enough support for Trump to win the election. “Republicans wielded their power while we hoped for the best. And the course of history was altered forever.” That could happen again, Jentleson argues:
The decision not to impeach is not a decision to focus on other things, it is a decision to cede power, control, and legitimacy to Trump. Trump is not a master chess player, he just bluffs his opponents into forfeiting their moves — and that is exactly what he is doing to House Democrats.
Ignoring this downside is the fundamental mistake on which everything else is premised, but it’s hardly the only one. There are at least 10 other things that Pelosi and others get wrong about impeachment. Correcting those mistakes can go a long way toward clearing the air.
Most important, Pelosi believes that the American people don’t support impeachment, and that pursuing it will prove disastrous for Democrats. She’s focused on the downside of impeaching, while ignoring the downside of not doing so. This is clearly her overriding concern, and it’s fundamentally mistaken. But it can’t be tackled alone. We need to consider the whole constellation of misperceptions that surround that one and help reinforce it. These can be broken down into six false arguments against moving forward with impeachment and four arguments that are being ignored.
Of those six false arguments, Pelosi managed to squeeze half of them into a the space of just a few sentences a month ago: 1) Trump wants impeachment, and is deliberately luring Democrats into it; 2) Impeachment will divide the nation, and 3) We don’t have enough facts to know whether impeachment is warranted.
“Trump is goading us to impeach him. That's what he's doing,” Pelosi said. “Every single day he's just like taunting, taunting, taunting, because he knows that it would be very divisive in the country but he doesn't really care. Just wants to solidify his base,” she said. “So we can't impeach him for political reasons. And we can't not impeach him for political reasons. We have to see where the facts take us.”
There’s a superficial plausibility to all three claims, so it’s important to realize how wrong they are, and why. Trump loves to goad people, no question. If Democrats were to impeach him, he’d certainly use it to rile up his base, playing the victim card to the hilt. These undeniable facts are just pieces of the whole claim Pelosi advances. But when looked at as a whole, their plausibility quickly starts to crumble.
Mistaken Argument 1: Trump wants impeachment
This part of Pelosi’s claim was immediately challenged on Twitter, Although she has continued to express this view, right through her appearance with Jimmy Kimmel last week. It’s plausible primarily because constant battles with "liberal" foes is one thing Trump has delivered for his base. After Trump blew up the infrastructure talks, the AP went so far as to report Pelosi’s charge as a background fact: “Trump has been betting the future of his presidency on trying to goad Democrats into impeaching him …”
Pelosi’s questionable claim was quickly becoming conventional wisdom, but the very next day, the Washington Post's Aaron Blake offered a more straightforward explanation for Trump's explosive reaction: “Trump really doesn’t want people digging into his finances and potentially obstructive actions, and he’s willing to do just about anything to try to stop them.” Given Trump’s decades-long history of obsessive secrecy and legal stonewalling, this explanation has a great deal going for it.
Last week, Trump vividly showed the world just how wrong Pelosi’s claim really was. After Mueller broke his silence with a brief public statement at the Justice Department, there was a sharp uptick in calls for Trump’s impeachment. If the president wanted to goad Democrats into taking the plunge, it would have been the perfect moment. Instead, he did the exact opposite — changing the subject completely, as Elaina Plott noted at the Atlantic.
“Whenever a negative story comes around, his instinct is to pivot to immigration or trade,” a senior campaign adviser told her. That’s exactly how Trump responded, with a new announcement of immigration-linked tariffs on Mexican imports. “By the end of a week in which the lies of the White House’s representation of the Mueller report became more apparent than ever," Plott writes, "reporters, pundits, and the stock market were all responding instead to Trump’s latest attempt to curb immigration at the southern border.”
So it should now be clear to everyone that Trump is not trying to bait Democrats into impeaching him. Rather, as he said himself, he sees impeachment as “a dirty, filthy disgusting word.” As Heather Digby Parton argued here at Salon last week, “The last thing he wants is to be like O.J. [Simpson], a man acquitted by a biased jury, walking around in a world in which almost everybody knows he's guilty.”
Mistaken Argument 2: Impeachment will divide the nation
Pelosi’s claim that “it would be very divisive in the country” can only be considered a bad joke. The country is already divided, perhaps to an extent not seen since the Civil War. The question isn’t whether Democrats are going to divide the public, but whether they’re going to inform and educate it, to the extent that is possible. Trump’s base, which is too small to re-elect him on its own, doesn’t need solidifying. In fact, as the recent town hall held by Rep. Justin Amash, R-Mich., made clear, Trump’s base has been shielded from any knowledge of the Mueller report.
“I was surprised to hear there was anything negative in the Mueller report at all about President Trump. I hadn’t heard that before,” one Trump-supporter said. “I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report and President Trump has been exonerated.” Impeachment hearings will only erode the support of people like this.
On the other hand, it’s Democrats who need to solidify their base by not demoralizing them all over again. This is a difficult task for the Democratic Party because of its coalitional nature, as described by Matt Grossmann and David Hopkins in “Asymmetric Politics: Ideological Republicans and Group Interest Democrats” (Salon review here.) But the facts are overwhelmingly on their side, which leads us to Pelosi’s third mistaken claim.
Mistaken Argument 3: We don't have enough facts
Pelosi’s third claim was expertly presented as common sense: “We can't impeach him for political reasons. And we can't not impeach him for political reasons. We have to see where the facts take us.” OK, that sounds reasonable — except that we already have more than enough facts to warrant impeachment. We even have enough to warrant criminal indictments. As the recent statement signed by hundreds of former federal prosecutors states, “The Mueller report describes several acts that satisfy all of the elements for an obstruction charge.”
The problem isn’t a lack of sufficient facts. It’s a lack of sufficient understanding of the facts that are already known. Of course there are still many missing facts that we ought to have, and should still seek to get. But we already have enough facts to warrant impeachment. That bar has clearly been met.
In fact, there are whole slew of other impeachable offenses Trump has committed, as Lawfare managing editor Quinta Jurecic wrote recently at the Atlantic. Those include the pardon of Joe Arpaio, Trump’s instructions to Border Patrol officers to disobey the courts in turning back asylum seekers, his demand that the Postal Service double Amazon’s shipping rates and multiple abuses of power, that speak to the "democratic backsliding" described by Huq. Expanding impeachment hearings to cover these abuses would allow Democrats to drive home the sweeping nature of Trump’s attempted power grabs and how far they depart from established American norms and traditions. It’s not facts that are lacking here. It’s backbone. It’s political will.
Mistaken Argument 4: Impeachment will hurt House Democrats in swing districts next year
This argument is premised on a number of false assumptions: That impeachment will necessarily be seen as partisan; that public opinion won’t change in response to new information; that everyone who voted for Trump in a swing district is part of Trump’s base; that voters will punish a principled stand, rather than respect it (see, for example, the standing ovation Amash received at his recent town hall); and that members of Congress can't articulate fact-based, nonpartisan arguments for impeachment, just to name some of the most obvious ones.
We’ve already seen initial evidence, both from Amash and from a few swing-district Democrats, indicating that all these assumptions are questionable at best. “We were getting about two to one in terms of the number of calls opposing impeachment and telling us to stop the investigation,” Rep. Katie Hill, D-Calif., told Chris Hayes last week. “Now we’re getting three or four to one saying, we need to be moving forward. This is getting too out of hand.” Hill is a self-described moderate who narrowly defeated Republican incumbent Steve Knight last fall.
Another newly-elected California Democrat, Rep. Katie Porter — who unseated GOP incumbent Mimi Walters in an Orange County district Democrats had never won — said she had seen “a real turning point” at her town hall, NBC reported. “Porter told voters here that while she did not run for office to impeach the president and never mentioned it on the campaign trail, ‘I will not shirk my duties if the time comes.’”
Democrats must certainly conduct a careful deliberative process along the lines of the Watergate hearings, as one participant in that process, former Rep. Elizabeth Holtzman, has argued. “Rather than dividing the country, the impeachment process brought it together — most Americans agreed that more important than any president or party were the rule of law and the Constitution,” Holtzman writes. “Nixon was permanently disgraced — and the Committee’s work has never seriously been challenged.”
The key to this success was a transparently fair process, and swing-district representatives like Hill and Porter can play important leadership roles in advocating for such fairness and transparency, with little political risk — provided that Democrats not only deliver such a process, but vigorously defend it as well.
Mistaken argument 5: Impeachment will distract from the Democratic agenda
This argument is bizarre, since people are already distracted from the Democratic agenda. As I wrote here recently, “Democrats can legislate all they want, for example, but Mitch McConnell, Donald Trump and the media will simply continue to ignore them.” The House has now passed 157 bills, but the press is easily distracted by the latest Trump tweet — such as the one the last week in which he claimed House Democrats had gotten nothing done, and only wanted a do-over of the Mueller investigation. It’s hard to fathom how impeachment could change that one iota.
Impeachment would give the Democrats a chance to shape the media narrative for a change — something to which they seem allergic. It would also substantially advance their legislative agenda, first by hampering Trump’s destructiveness in the short run, and second by laying the groundwork for reparative legislation in the future.
Mistaken Argument 6: The people don't want impeachment
There are two main reasons this is a mistaken argument:
1) It’s irrelevant. What people say they want right now is not indicative of what lawmakers should do. Nor does it tell us what people will want in the future, once they are better informed. If a full congressional investigation and presentation of the facts to the public still results in significant opposition to impeachment, then that becomes a relevant consideration. Congress could choose a resolution of censure, for example, to respect the will of the people on the one hand while maintaining the principle of responsible oversight on the other. But to make any such decision in advance — based on public opinion shaped by disinformation and outright deception — is cowardly and irresponsible.
2) It’s based, consciously or otherwise, on the example of Bill Clinton's impeachment, which was personally experienced by Pelosi and many other Beltway Democrats, but which is vastly different from the Trump situation. Clinton was a popular president with an abundance of policy ideas who kept working on the people’s business regardless of the ongoing investigations against him, which were drenched in partisanship from start to finish. Trump is a chronically unpopular president, with virtually no policy ideas at all, who has flatly refused to do anything unless all investigations cease. No valid conclusions whatsoever can be drawn from this comparison.
Current levels of support for impeaching Trump and likely future developments are best understood by the example of Richard Nixon, as argued by Sidney Blumenthal at Just Security. Furthermore, drawing on a partisan breakdown of poll numbers, Greg Sargent argues that the Nixon case suggests that “big shifts among independents are possible and show that a substantially larger percentage of independents now support impeachment hearings than at the outset in Nixon’s day.”
Princeton historian Julian Zelizer adds an important point about the importance of congressional investigation in driving public opinion. There was a significant jump in support for impeachment after the House Judiciary Committee began impeachment hearings on Nixon, and another jump after it approved articles of impeachment.
“It’s clear from the data that impeachment proceedings provided the jolt that shook the public, among independents in particular,” Zelizer told Sargent. “An independent by nature is not going to make a quick decision. Impeachment proceedings and then the approval of articles of impeachment are what ended up moving independents. ... This wasn’t Congress waiting on the public. It was the other way around — Congress provided guidance to the public.”
Ignored Argument 1: An impeachment inquiry is primarily about informing the public
We already have enough publicly known facts to reach a conclusion on impeachment — which was not the case at the beginning of the Watergate investigation. That’s attested to by the letter from federal prosecutors referenced above. But the publicly-known facts are not yet known widely enough for the kind of public consensus that occurred with Watergate. While the inquiry should certainly strive to uncover all the facts it possibly can, the primary focus should be on informing the public of what’s already known, and doing so in a way that’s transparently fair.
Ignored Argument 2: There's a serious potential downside for Republicans, even if Trump is acquitted by the Senate
The House impeachment inquiry will just be the first act. If carried out properly, it should convince a majority of the public that Trump should be impeached. At that point, an impeachment resolution can be drafted and voted on. No one should be influenced in any way by the threat that the Senate would not convict. Rather, Republican senators should be influenced by the knowledge that their votes to condone Trump’s abuses of power will be held against them by a significant portion of the public. As Elizabeth Holtzman points out, “Improbably, impeachment proved to be a political bonanza for the Democrats, resulting in massive victories in the 1974 Congressional elections. Democrats had acted responsibly, while Republicans were seen as tied to a lawless president.”
Ignored Argument #3: House Democrats' primary need is to demonstrate their seriousness
Donald Trump is a master of delay, as well as deception and denial. Democrats cannot let that prevent them from mounting the kind of public inquiry that’s required. As noted above, there’s already an abundance of evidence, so the primary aim should be presenting it in a compelling manner — and using the pressure that generates to press for full release of all information. This includes bringing pressure for all witnesses to appear.
Democrats should also seriously consider the full range of potential impeachable offenses, described by Jurecic at the Atlantic and others, and go through a winnowing process to end up with the strongest, most comprehensive and most comprehensible set of charges. They should not overreach or go on a fishing expedition: Charges that seem imprecise, overly legalistic or poorly substantiated should be abandoned. But they also must not ignore the serious and dangerous abuses of power Trump has engaged in with reckless abandon. There should be no wild punches, and no punches pulled.
Ignored Argument 4: Democrats have no reason to wait
Democrats are right to insist on getting the unredacted Mueller report from Attorney General William Barr, right to insist on hearing from all the key witnesses, and right to insist on seeing all the relevant documents, including Trump’s financial documents and tax returns. But they don’t have to wait on any of that to get started with impeachment proceedings. They can set the agenda, and the pace. It’s their show.
As former federal prosecutor Elizabeth de la Vega tweeted, “Dems should assume people DON'T know what's in the Mueller report. Dems should assume, because it's true, there's no shared narrative about facts covered by the report, treat the public as a blank slate & start from scratch, just as a prosecutor does in a trial.”
On Monday, House Judiciary chair Jerry Nadler's announced that hearings on the Mueller report will begin on June 10, with testimony from former U.S. attorneys and legal experts, including Nixon’s White House counsel John Dean. That was a welcome step forward. “Given the threat posed by the President’s alleged misconduct, our first hearing will focus on President Trump’s most overt acts of obstruction,” Nadler’s statement said.
But the vagueness of the proposed timeline undercuts the message of seriousness. “In the coming weeks,” Nadler's statement continued, “other hearings will focus on other important aspects of the Mueller report.” That is not the kind of take-charge message that Democrats need to send on a constant and consistent basis. It’s suffused with the kind of maybe-we-will, maybe-we-won't vagueness that Pelosi is clinging to, ignoring the obvious downside of being seen as a bunch of ditherers and prevaricators — which is exactly how Democrats have been perceived for years. The time for dilly-dallying is over. It’s time to step up.
A final thought on strategy
There's no doubt that Nancy Pelosi is a savvy politician. One could argue that she does have a coherent strategy: Slow-walking the impeachment process, on the theory that voting actual articles of impeachment out of the House is less important than extended, thorough public hearings that expose the level of Trump's corruption. But if that’s the case, she’s sowing confusion now, as with Nadler's vague promise of future hearings, or the various reports that she and Nadler disagree on how to move forward.
That also neglects what may be the shrewdest political calculation of all: Putting Mitch McConnell and the Republican Senate in the position of acquitting a president the House has calmly and deliberately proven to be a criminal. To repeat Adam Jentleson's formula, "The decision not to impeach is not a decision to focus on other things, it is a decision to cede power, control, and legitimacy to Trump." Surely Nancy Pelosi is too smart to do that.