The Rationale for Impeachment

Democrats have decided to open an impeachment inquiry based on revelations about the president allegedly trying to extort Ukraine into investigating Joe Biden. They cite the clarity of the case and point to public confusion over existing evidence of possible impeachable actions by the president. The New York Times describes the rationale:

“The sudden embrace of an impeachment inquiry by previously reluctant House Democrats — most notably Speaker Nancy Pelosi — is attributable to one fundamental fact: They believe the new accusations against Mr. Trump are simple and serious enough to be grasped by a public overwhelmed by the constant din of complex charges and countercharges that has become the norm in today’s Washington.”

Public confusion and political blowback from that confusion was what held the democrats back. The confusion is a direct result of the power of dark free speech[1] to confuse, polarize and mislead whole societies.

The impeachment process

If enough lawmakers in the House vote to say that a president committed “treason, bribery, or other high crimes and misdemeanors” the president will be impeached and possibly removed from office if enough Senators agree.

The term “high crimes and misdemeanors” originated in British common law. It constituted offenses that Parliament cited in removing crown officials. In essence, it is an abuse of power by a high-level public official and not necessarily a violation of any criminal law.

No president has been impeached by the House and convicted by the Senate. Nixon resigned before he could be impeached. The House impeached Andrew Johnson in 1868 and Bill Clinton in 1998, but the Senate acquitted both. They went on to complete their time in office. The House impeaches by  a majority vote, but the Senate must convict by a two-thirds vote supermajority.

Although the constitution states that the Senate must hold a trial after the House impeaches, there is no enforcement mechanism. Mitch mcConnell could simply do nothing and the process would die. On the other hand, since the Senate can set the rules for an impeachment trial, they could rig the process to be minimally damaging to the president by limiting what evidence could be considered. It is also important to understand that, even if the Senate did convene a trial, the Republican majority could vote to simply dismiss the case without considering any of the evidence. Regardless of Senate rules or actions, the possibility of 66 Senators voting to impeach the president is nil. That assessment is based on the intense hate and distrust the two parties have for each other.

The important point is that impeachment is a political process more than a legal one. In legal proceedings, most or all relevant evidence and fairly well-defined laws are important. In impeachment, tribe loyalty can negate the evidence and the ill-defined impeachable offenses, treason, bribery, or other high crimes and misdemeanors, helps make it easy to simply ignore evidence that the tribe in power in the Senate does not want to consider.

Polarization

In the Federalist Papers in 1788, Alexander Hamilton asserted that the inherently political nature of impeachment proceedings would polarize the country. An impeachment prosecution “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

Thus, despite how polarized Americans are now, it is possible that it could get worse. Given the fact that the Senate will not convict, maximum polarization might be avoided.

Footnote:
1. Dark free speech: Constitutionally protected (1) lies and deceit to distract, misinform, confuse and/or demoralize, (2) unwarranted opacity to hide inconvenient truths, facts and corruption (lies and deceit of omission), and (3) unwarranted emotional manipulation (i) to obscure the truth and blind the mind to lies and deceit, and (ii) to provoke irrational, reason-killing emotions and feelings, including fear, hate, anger, disgust, distrust, intolerance, cynicism, pessimism and all kinds of bigotry including racism. (my label, my definition)