by Stephen B. Presser
What could possibly explain the transparent nonsense that is the attempt to impeach and remove President Donald Trump? The farrago of exaggerations and outright lies that the leadership of the Democrats in the House of Representatives are currently peddling makes little sense.
Impeachment was a remedy crafted by the Founders to remove a corrupt official who put his or her interests ahead of those of the country. But when a president has managed one of the most successful economic recoveries in modern times, and when he has succeeded in reducing taxes, regulations, and in reforming the federal judiciary, that president doesn’t seem like a problem the Constitution’s Framers sought to cure.
Could it be, instead, that those seeking to remove President Trump are themselves the beneficiaries of the kind of corruption the framers feared?
The idea is gaining some currency, as some observers have begun to suggest what we are witnessing is a distraction by the “deep state,” to shift our attention away from the revelations of the extreme misconduct of our entrenched bureaucracy in our intelligence, foreign service, and law enforcement agencies during the Obama Administration. The misconduct is detailed in Justice Department Inspector General Michael Horowitz’s recent report and could be the subject of prosecutions by U.S. Attorney John Durham.
There is much merit in that analysis. It makes good sense to understand the smokescreen of impeachment as a means of obscuring what appears to be the extraordinary corruption of the Biden family and former Ukraine Ambassador Marie Yovanovitch, or even the “pay to play” assertions concerning the Clinton Foundation, the concealing of which is the best explanation for Hillary Clinton’s shenanigans regarding her “homebrew” server which was used to shield her misconduct from public view.
If, as President Trump maintains, he is the sworn enemy of such corruption, it certainly would make sense for those who have benefited and continue to benefit from a misuse of the power and largess of the federal government to fight him tooth and nail.
Punishing such corruption would be reason enough to support Republicans if they are sincere in their effort to do this. But understanding a deeper cause of the rot that has beset our national government is also necessary.
What makes it possible for House Speaker Nancy Pelosi (D-Calif.), Rep. Jerry Nadler (D-N.Y.), and Rep. Adam Schiff (D-Calif.) to claim they are protecting the Constitution? The Constitution they purport to be safeguarding bears no relationship to the original understanding of the actual document.
How can Pelosi refuse even to transmit the articles of impeachment to the Senate unless Majority Leader McConnell permits Democrats to implement Senate proceedings, such as the calling of witnesses who did not appear in the House, or provides her assurances of “fair play,” such as were denied President Trump in the House’s hearings?
How could this strategy be something concocted by liberal Harvard law professor Laurence Tribe? How could other purportedly respected liberal law professors such as Noah Feldman and Pamela Karlan support the transparently absurd impeachment theories of the House Democrats?
Could it be that the explanation for this is also something of an answer to the question of why so many Democrat officials of blue-state cities are emboldened to defy our immigration restrictions, or why blue state officials believe they can ignore the federal government’s laws on cannabis, or even the Constitution’s Second Amendment protection of the right to bear arms?
Is there a parallel between Pelosi’s flaunting of the Constitution and its structure and President Barack Obama’s decision that he could implement DACA without the benefit of federal legislation?
What is it that has made the federal Constitution so plastic, that has empowered so many Democrats—many of them educated at our finest law schools—to believe that the clear constitutional provisions regarding the separation of powers and the limitations on the federal government could be ignored?
We are, it would seem, reaping the harvest of the seeds sown by the New Deal and the Warren Court, by Roe v. Wade, by Obergefell v. Hodges, and by a jurisprudence embraced by our elite law schools in the course of the last two generations. Those cases, and the law professors who approved of them, and the law students they educated, came to believe that our Constitution was outmoded, and that it was the job of enlightened jurists and jurisprudence to amend it without benefit of Article V.
On the theory that the Constitution’s framers supported slavery and the deprivation of the franchise to women, it is no surprise that some frank justices such as Thurgood Marshall could argue that deference was simply not due to the original understanding of that document. The abandonment of that deference, then, is what led to the court essentially rewriting the 14th Amendment to let it advance the policies it favored. These grievances with the original document, they argued, permitted them to make new constitutional law and to reallocate the constitutional responsibilities between the state and federal governments.
Once one abandons the original understanding as a means of advancing the rule of law, however, the way is opened for any Supreme Court justice, bureaucrat or legislator convinced that he has access to a higher truth than the Constitution’s Framers or the sovereign people who ratified their work, to ignore the strictures of our fundamental law and to promote arbitrarily whatever policies are ideologically or personally more pleasing.
That arbitrary behavior, however, is what leads to corruption, an abandonment of the rule of law, the ending of popular sovereignty, and ultimately to tyranny. This country is threatened by a loss of its constitutional system, and of the morality that the Framers believed must undergird it. The threat does not come, however, from the occupant of the White House, but from those who would seek to expel him.
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Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.
