Impeachment Not the Best Option for Democrats

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

Unlike other democracies which have parliamentary systems that allow for mid-term votes of “no confidence” when the leadership of a nation’s government has come under serious question, in the United States there is no such remedy.

There is no emergency valve that we can periodically activate to relieve pressure on the system.

We are left with choices between legal solutions that take a long time to play out, adversarial responses by the party out of power which can backfire, or by threat of impeachment—a drastic measure rarely used.

House Leader, Nancy Pelosi of San Francisco, who speaks from a position of considerable authority, is cautioning against the using the impeachment tool fearing it could endanger the seats of many moderates and work ultimately to Trump’s advantage.

Rep. Jared Huffman (D-Marin), a rising star in the Democratic caucus, is more aligned with Rep. Maxine Waters (D-Los Angeles) both of whom seem prepared to break ranks with Pelosi and favor impeachment.

“We cannot ignore it. We cannot wish it away,” says Huffman. Many of the younger members from safe Democratic districts across the nation are moving in the same direction.

There is a fourth option available to the Democrats which while the trickiest, they should be pursuing simultaneously—and that is coming up with the nominee most capable of beating Donald Trump.

The winnowing process will not begin until at least the first debates in June with new prospects still entering the fray on a daily basis.  All but one or two are destined to become mere footnotes in history—but don’t tell any of them that.

For ambitious Democrats, including Sen. Kamala Harris (D-San Francisco) and East Bay Congressman, Eric Swalwell, 2020 is viewed as a winnable race and perhaps a once-in-a-lifetime opportunity despite numerous outcomes that are unpredictable at this time.

Yet all the campaigners begin their quest on a sobering note.

If the election were held today with the economy remaining strong, no foreign crisis in immediate sight, and no identifiable opponent in his own party capable of ousting him, Trump would stand a good chance of being re-elected.

It is also plausible though less likely that the unremitting accounts of the heinous goings-on in this administration are causing some GOP voters to reconsider their loyalties though the latest reactions by GOP leaders to the mounting hostilities between Attorney General, William Barr and Special Prosecutor, Robert Mueller says otherwise.

Judging by the initial reactions of Minority Leader, Kevin McCarthy ( R-Bakersfield) and his fellow California House colleagues, the strategy appears to be avoid the fallout and seek shelter in place.

However, there is no easy recourse by which to judge such dissatisfaction except through the hyperventilating news reportage and clearly biased commentary on both left and right amplified a hundred times over through the social media.

The mixed reactions to Attorney General William Barr’s spin on the Special Prosecutor, Robert Mueller’s widely disputed conclusions to his investigation of presidential misconduct has only muddied the waters further.

On one side we have a growing chorus of voices calling for impeachment; on the other a group of Trump defenders –McCarthy among them—equally adamant that the president has not committed any crimes.

The weight of opinion by many in the legal community who have taken the time to carefully read the Special Prosecutor’s report—albeit heavily redacted– has led to the  conviction that there were at least 10 instances of obstruction of justice by key White House operatives although Mueller’s findings left unresolved whether the president himself was directly complicit.

Aside from the critical matter of Trump’s prior knowledge and encouragement, evidence of Russia’s meddling in our national election is beyond question and should at least be raising red flags lest this happen again in 2020.

Maintaining the integrity of our electoral system in the face of an implacable foe that is working hard to undermine it is not a partisan issue—it is a direct threat to democracy itself and every member of Congress should be of one mind that this is not tolerable.

Equally troubling are the ongoing machinations of the nation’s chief law enforcement officer as Congress begins what are already becoming testy hearings.

Attorney General Barr’s unapologetic doctoring of the report seemingly to cast the president in the most favorable light, his reluctance to turn over the complete unexpurgated version to Congress, and testimony he gave which conflicts directly with the conclusions Mueller shared before the report’s release has led to him being branded a liar.

House Speaker, Nancy Pelosi, who is asking for restraint on calls for impeachment has labelled him as such, and Barr’s credibility has taken a big hit prompting calls for his resignation.

He has now raised the stakes even higher by refusing to appear before the House Judiciary Committee or any other congressional body for which he can be held in contempt. This conduct can get jail time for any ordinary citizen.

As noble as it may be, Barr’s job as many federal prosecutors who served under him in the Bush Administration have pointed out, is not to protect the president—it is to uphold the rule of law and administer the justice system as impartially as possible.

The Barr imbroglio is just a sideshow that may delight the president momentarily but can only put more fuel on the fire.

Which gets us back to the conundrum I initially posed—namely what remedies are available for unseating a lawless president who still enjoys considerable popularity?

Politically the impeachment path is not very attractive if for no other reason than that at this juncture there is not a single GOP senator who seems prepared to vote for it—and some Democrats would agree.

Furthermore, the impeachment clause is very vague on what qualifies as impeachable other than “treason, bribery or other high crimes and misdemeanors.”

If it was the founder’s intent that it be an instrument used only sparingly, the theory has worked well. No president has ever been removed from office by impeachment and conviction. Andrew Johnson and William Clinton were both acquitted and Richard Nixon resigned in the face of all but certain impeachment by the Senate.

This president shows no sign of any plans to resign and will carry the fight to the courts if needed.

Speaker Pelosi has made it clear that impeachment is not a practical solution without bi-partisan support and the oversight hearings while an obligatory function of Congress are not likely to advance it.

In short, impeachment is a strictly political process and it can encompass whatever acts Congress deems satisfied within the constitutional clause as it is interpreted.

The Democrat’s best and perhaps only remedy is through the ballot box. Whether they can use it to full advantage remains to be seen.

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