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Is Just Impeachment Just?

Updated: Dec 16, 2019

Max Stearns

“Justice, Justice Shall you Pursue.”

Deuteronomy 16:18–21:9, Shoftim.

Donald Trump will almost certainly be impeached this week in the House of Representatives. With equal certainty, he will not be convicted in the Senate. Is just impeachment just? I believe so. Impeachment and conviction, forcing Donald Trump’s removal from office, would be more just, but that does not undermine the justness of just impeachment.

These past weeks have reminded me of the quoted passage from Parsha Shoftim. Rabbis inquire why not the simpler, or at least non-repetitive, “Justice Shall you Pursue.” Why “Justice, Justice”? I think that the answer might help to explain the justness of just impeachment.

I’m not going to argue the case for impeachment here. For those persuaded that the evidence is contrived or insufficient, this post is a non-starter, and that’s fine, or at the very least, beyond my capacity to change. My point here is narrower and more specific. Assuming, as I believe, the case against Trump is strong, compelling, even overwhelming, just impeachment is still just. Some have argued against impeachment because it is gaining no Republican support and thus will not be bipartisan. Others advocate pursuing censure rather than impeachment. That process, which is not specified in the Constitution, has, thus far, been employed only once against a sitting President, Andrew Jackson, only to be expunged three years later. By contrast, two presidents have been impeached, with neither convicted: Andrew Johnson and Bill Clinton. John Tyler, Andrew Jackson, and Richard Nixon have faced impeachment inquiries and proceedings that did not get so far. Nixon, of course, resigned when the Supreme Court ruled that he would be required to release tapes so damning that Republican congressional leaders let him know his presidency was inevitably at an end.

The framers almost certainly intended impeachment to have more bite than history has shown it to have. When I was a child, it was customary for teachers to present the Framers of the Constitution as intellectual giants, men of character, wisdom, and vision who set out a system that even today’s greatest minds could not match. One argument against a constitutional convention, something else provided for in the Constitution that has yet to occur, is the fear of breaking something unbroken, or at the very least making matters worse than they already are. The truth is that our Constitution has been badly broken for a very long time. As I tell my students at the start of my Constitutional Law I: Structure and Governance course, what we are about to do requires our suspension of disbelief, imagining the workings of a system that no longer matches our reality. The framers thought it possible to construct institutions that would ameliorate the historical tendency, which they attributed as the cause of failed past republics, toward partisanship, something James Madison, following David Hume, called factional violence. And yet, Madison’s mistake was imagining that party divisions could be willed away, or cast aside, superseded with what he hoped would emerge as benign alternative jealousies. Such jealousies, he thought, would be linked to the parts the country in which our leaders and their constituents reside, or to the very institutions the government officials comprise.

Today’s Republican leaders are not the first to elevate commitment to party over geography, institution, or even the nation. Partisan politics were an embedded feature sufficiently early on that they became a formally recognized attribute, feature rather than bug, in the Twelfth Amendment, ratified in 1804. But today’s Republican leaders might well be the first to embrace partisanship to the exclusion of all else just when any conceivable sense of polity—a loosely coherent sense of national identity—is all but eviscerated. That this ship has sailed cannot mean it’s not worth trying to call her back to shore.

“Justice, Justice Shall you Pursue.” Is this redundant? I don’t think so. As the Israelites were set upon a new venture, and before he would no longer be there to lead, Moses instructs the leaders to create courts within each city and to heed this admonition. Why the repetition? I now believe it was his way of engaging a reset. If he were to convey simply “pursue justice,” those listening would start from some place, wherever they happen to be, with whatever objectives they have in mind. Those goals might seem benign, even noble, perhaps better than those others held. But inevitably opposing sides or viewpoints would form. Views solidify. We can call this partisanship, factionalism, or even commitment, with the latter possibly carrying lesser adverse connotations. Opposing sides will form, with each claiming the pursuit of justice. And while the blind pursuit of justice is often a symbol of noble detachment, it can also, more damningly, convey a deliberate unwillingness to recognize obvious truths. In entering a new land, those who would undertake the vital task of judging needed a reset. And that reset, likewise, is justice. There is no redundancy: Start with justice. And from there, “Justice Shall you Pursue.”

If this nation ever needed a reset, it is now. And once more, that reset must be justice. Our politics is so badly damaged that quite literally one third or more of the population has persuaded itself that what Donald Trump has been shown to do—seeking to enlist the leader of a foreign nation for purely personal political gain, not merely by pursuing a claimed corruption investigation (we do have agencies that would help with that task), but rather, simply to have it announced as a precondition to the release of vital funds and a White House meeting—does not rise to the level of an impeachable offense. When Moses led the Israelites from Egypt, God made them spend forty years in the desert. They weren’t ready to enter a land of freedom. A formal impeachment vote will change no hearts and no minds. But somehow, I hope, we will get past this.

Thirty, fifty, or eighty years from now, school children will read our nation’s history, and they will learn. Curious children will be drawn to its curiosities. These are apt to include those rare presidents who got impeached, even if none ever were convicted: Johnson, Clinton, Trump, perhaps others. Unless these students go on to become historians, they almost certainly won’t pay attention to censure. Impeachment without conviction is our censure. These historical curiosities, impeachment without conviction, might cause them probe more deeply. And when they do, they will learn, with the detachment that only intervening decades can bring, that there are some boundary lines no moral leader ever should cross. They will also discover that whatever one thinks of other impeachments, this particular one was so compelling that regardless of what happens next, a pall was rightly cast on the Trump presidency. It deserves to be.

This reset might not be for us. It might be for our children and theirs. That’s justice too.

I welcome your comments.

[Special thanks to Dan Wolpe, an actual Rabbi, and Wendy Bornstein, for helpful comments on an earlier draft.]

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