must be tantamount to a proclamation of overwhelming public sentiment. It must reflect the desire of the American people that the president be removed.
At the moment, there are effectively 55 Democrats in the Senate: 53 party members plus two ostensible “independents” who caucus with them. Besides being extraordinarily partisan, they are a very disciplined voting bloc. Even if all 45 Republicans were persuaded to convict the president of high crimes and misdemeanors, 22 Democrats would have to break ranks and join with them for the president to be removed. And if the current crop of GOP senators were to engage in their familiar parliamentary gamesmanship, you might not even get 45 Republicans voting to convict—unless they were sure the president would prevail and that their futile votes could be good campaign fodder in their particular election races.13
Right now, conviction in the Senate is a pipedream, and therefore one cannot reasonably expect the House to file articles of impeachment. The process of impeachment will always be an ordeal, regardless of how necessary it is. Americans may be convincible regarding the need to oust a lawless president, but they will never be happy about it. Nor should they be. Even the president’s most zealous detractors should prefer that he mend his outlaw ways and finish his term than that the country be put through an impeachment process that would be painful in the best of times. And these are not the best of times: today, the pain would be exacerbated by the vulgar propensity of the left and the media to demagogue concern for the nation’s well-being as racism. Consequently, impeachment entails substantial political risk for the protagonists, even if they are clearly right to seek it. House members have no incentive to push for impeachment charges unless conviction in the Senate is within the realm of possibility.
Of course it matters that the president has patently and routinely violated his solemn oath to preserve, protect and defend the Constitution. And of course it matters that the president has willfully betrayed his constitutional duty to take care that the laws be faithfully executed. Still, the real significance of these facts lies not in their legal qualification as impeachable offenses but in their solidity as the foundation of a compelling political case for presidential removal.
The legal aspect of the case is the easy part. That impeachable offenses have been committed is manifest once one grasps the concept of “high crimes and misdemeanors”—which are offenses against the governing fabric by those sworn to uphold it; fraud on the public and its representatives by those entrusted with the highest fiduciary duty. In fact, given that the point of impeachment is to preserve the United States of America, and that the point of the Obama presidency is, as he boldly promised supporters, to “fundamentally transform the United States of America,”14 how surprised can we really be that the president and the Constitution have been on an impeachment collision course?
Proving “high crimes and misdemeanors” is necessary to make the case for presidential removal, but it is not sufficient. The politics takes precedence: The public must reach the conclusion that the constitutionally subversive nature of the impeachable offenses renders it intolerable to permit the president to continue in power; and the public must make its representatives understand that failing to act on that conclusion will shorten their cherished Washington careers.
That is the true lesson of the Bill Clinton impeachment controversy. The error to avoid is not the endeavor to remove a rogue president; it is the endeavor to remove a rogue president without first having convinced the public that his removal is warranted—that the punishment fits the crime.
On December 19, 1998, the House approved two articles of impeachment against President Clinton, involving misconduct that, while criminal and cringe-inducing, reflected more on his deep character flaws than on his execution of the presidency’s core responsibilities.
Earlier, a grand jury had been convened to investigate allegations of corruption. Much of this involved the “Whitewater” real estate venture in Arkansas, which occurred before Clinton became president. Some of it, while certainly within the ambit of his presidential duties, was not central to them—for example, cronyism in the firing of White House travel office personnel. In the course of the investigation, it emerged that the president had conducted a sexual liaison with Monica Lewinsky, a young White House intern. Clinton had also pressured Ms. Lewinsky to lie about the affair to investigators, and had lied about previously perjuring himself in a deposition when another woman, Paula Jones, sued him for sexual harassment.15
The two impeachment articles charged President Clinton with perjury and obstruction of justice.16 The charges satisfied the “high crimes and misdemeanors” threshold, for it is perfectly reasonable to conclude that a president who corruptly impedes the administration of justice is not fit for office. After all, his responsibilities include ensuring the administration of justice and otherwise faithfully executing the laws. Clinton, moreover, was clearly guilty.
Nevertheless, the American people obviously did not want him removed over the charges. Opinion polls illustrated that a majority of the public, while troubled by Clinton’s character, approved of his overall job performance; and with impeachment proceedings under way, “approval” was effectively a proxy for rejecting the effort to oust him.17 In addition, on the eve of the House decision to vote articles of impeachment, the public handed Republicans a historically significant loss in the 1998 midterm elections. With Clinton’s misconduct front-and-center in the campaign, Republicans gained no Senate seats and actually lost four seats in the House. That may sound marginal, but it marked the first time in over sixty years that a president’s opposition party failed to gain seats in a midterm election, and the first time since 1822 that this happened in the midterm elections of a president’s second term.18 With the public clearly disfavoring impeachment, neither article against Clinton garnered majority support, much less the 67 votes needed for conviction, despite the Republicans’ 55-to-45 majority in the Senate.19
Lawmakers who have determined that presidential malfeasance merits impeachment have an obligation to try to persuade Americans that this is so. Making the effort is not indecorous partisanship; it is the imperative of preserving the Constitution to the best of one’s abilities. Nevertheless, lawmakers must also accept that impeachment is innately political. It is not the final link in a rigorous chain of legal logic. High crimes and misdemeanors do not equal impeachment and removal the way, say, stealing your company’s money equals embezzlement.
Law is obliged to be logical; politics is not. Law is about faithfully applying settled principles to current controversies—reason shorn of passion. Politics is about compromise and social cohesion—the art of the possible, not of the rigorously rational. If, after extensively scrutinizing the evidence, Americans decide that their president is a creep but his personal creepiness does not materially compromise his job performance, that is a decision they get to make. Members of Congress should respect that decision even if they believe it is wrong—as long as they have had a full and fair opportunity to make the case that the president should be removed.
Obamacare provides a useful analogy. What so enraged Americans about the health-care overhaul that they subjected Democrats throughout the nation, at both the federal and state levels, to a historic “shellacking” in the 2010 elections?20 Remember, this was before the fraud that pervaded Obamacare’s enactment was well understood, before much of the lawlessness that has attended its implementation, and before the havoc it is now wreaking on American families and businesses. The public’s anger was inspired by the arrogance exhibited by Democrats in unilaterally ramming the “Affordable” Care Act through despite the full-throated opposition of a strong majority of Americans. It is extremely foolish for politicians to press ahead with highly volatile measures against the will of the American people.
To gauge the strength of the political case for impeachment, the sensibilities of the public to whom the case must be made are just as important as the gravity of the president’s malfeasance. You can have a hundred readily provable articles of impeachment; what really counts, though, is what Americans
