Predictable Outcomes Aside, Impeachment Acts As A Deterrent, Scholars Say
MICHEL MARTIN, HOST:
This week, President Trump became only the third U.S. president to be impeached when the House of Representatives voted largely along party lines, with most Democrats, who hold the majority, voting in favor and all Republicans opposed.
Now the matter moves to the Senate for a trial, where the situation is reversed. Republicans are in the majority there, and the majority leader, Mitch McConnell, has already declared that he is not an impartial juror, that he is coordinating his efforts with the White House. And he has said definitively that there is no way the president will be removed.
And that made us wonder - if the outcome is all but certain, what is the value of the impeachment process as envisioned by the Constitution? We've asked two different scholars to consider this question with us today, historian Timothy Naftali. He's one of the co-authors of "Impeachment: An American History."
Professor Naftali, thanks for joining us once again.
TIMOTHY NAFTALI: My pleasure, Michel.
MARTIN: And also joining us is Michael Rappaport. He is a professor of law at the University of San Diego, where he teaches constitutional law and directs the Center for the Study of Constitutional Originalism. He is also a member of the Federalist Society. It's a legal society that has been very influential in helping President Trump choose his judges.
Professor Rappaport, thank you so much for joining us as well.
MICHAEL RAPPAPORT: Glad to be here.
MARTIN: And I'm going to start with you. Is it accurate to say that you don't think that President Trump's conduct warrants impeachment? And if that is the case, what's the core of your reasoning?
RAPPAPORT: I think that the impeachment charges made by the Democratic House are - if you look relative to what could be done, are relatively weak. And I think that's reflected in the fact that the impeachment was on partisan grounds. And so it shouldn't be all that surprising that they are unlikely to get a supermajority of two thirds needed in order to remove President Trump in the Senate.
MARTIN: So, professor Naftali, three presidents in U.S. history have been impeached now, but not one has ever been removed from office through this process. Did the framers of the Constitution mean for impeachment to be so difficult?
NAFTALI: Oh, yes. They understood that this was an intervention and had to be a rare event in American history. What has complicated impeachment, I believe, is the emergence of the modern party system. Although the framers understood the concept of faction, and they knew that there would be regional differences in the country - that's why, for example, the Senate was designed the way it was - they didn't want nor anticipate parties.
And the emergence of the idea of a president's party was something that they would find difficult to accept. It introduced a tribalism into the system that they had not anticipated and has further complicated impeachment.
MARTIN: I was going to ask that. I mean, because - well there are two questions there that - two issues there that you've raised. I mean, first of all, the founders intended for impeachment to serve as a check on the president's power. If impeachment has never actually removed a president from office - although President Nixon did resign rather than be impeached - how effective is it actually as a check on a president that a significant part of the population - clearly not all - believes to have violated the oath of his office or behaved in a way that is unacceptable?
NAFTALI: If you have a political culture where the possibility of impeachment or ultimately being impeached creates shame on the part of the political elite, then it acts as a deterrent. And if we see evidence of criminal conduct or abuse of power by the president, the founders expected us to call it out.
MARTIN: And, professor Rappaport, what do you think about that? I mean, the reality of it is - I know you've written about your concerns about hyper-partisanship, and you've described the fact that the two thirds majority in the Senate required to remove a president is a check on that hyper-partisanship, as you've written. But in an era in which the parties are deeply polarized, the electorate seems to be deeply polarized, does impeachment serve any useful purpose?
RAPPAPORT: Even in a hyper-partisan world, if there is very strong evidence that the president did something very wrong, the president can be removed. I don't know how hyper-partisan one wants to describe the world in which Richard Nixon was president, but there was quite a bit of partisanship going on in those days - a different kind. And Republicans basically said, this has gone too far. We're no longer going to support the president. So that can happen. That could probably happen in our world. But one needs a very strong case for it.
MARTIN: Why do you think it is that the two parties see the evidence so differently? Because they clearly do. And I just do have a theory about that. Professor Rappaport, why don't you start? Like, why do you think it is that they see it so differently? I mean, I think that you can hear the frustration on the part of both sides as the debate unfolded.
I mean, the Democrats say, why don't you understand that this is a serious matter? And the Republicans are saying, why don't you understand that it's not? I mean, or what - you might - or that the process is unfair. I mean, how do you why is it that they see it so differently, do you think?
RAPPAPORT: This strikes me as a question of policy. And so if the defense here is that President Trump tried to do something that would benefit himself, and a lot of people think that policy that he was pursuing was improper, well, that sounds like it's an impeachment for policy differences. And that's not going to be something that that people on the other side are going to find convincing.
MARTIN: OK. Professor Naftali, I gave professor Rappaport the first word, and I'm going to give you the last word. Why do you think that the two parties see this so differently?
NAFTALI: Well, because we're not operating from the same collection or pool of facts. The president's defenders are trying to push a conspiracy theory to explain the president's mindset. Their argument is the president was moved by these ideas, and he was doing what he felt was right.
But those ideas had been debunked, and the president had lawful, institutional ways of determining if there was truth behind the Ukrainian intervention which he didn't use. Instead, he hijacked the instruments of U.S. national security policy and used that structure on his own behalf.
MARTIN: That was Timothy Naftali, professor at New York University and co-author of "Impeachment: An American History." Also with us was Michael Rapaport, professor of law at the University of San Diego.
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