The Constitution Demands It

Wisconsin Congresswoman Gwen Moore recognized a year ago that it was necessary to impeach Donald Trump.

“As we once again hear Donald Trump defend those responsible for the deadly riot in Charlottesville and receive praise by hate groups like the KKK and neo-Nazis, the time has come for Republicans and Democrats to put aside our political differences and philosophical debates for a higher cause,” wrote Moore. “For the sake of the soul of our country, we must come together to restore our national dignity that has been robbed by Donald Trump’s presence in the White House. My Republican friends, I implore you to work with us within our capacity as elected officials to remove this man as our commander in chief and help us move forward from this dark period in our nation’s history.”

Moore repeated her heartfelt plea for the republic on the anniversary of the deadly “alt-right” violence in Charlottesville, and she was right to do so. Impeachment is the proper response to Donald Trump’s divisive and destructive presidency.

The classic arguments for impeaching Trump have been documented — most recently by constitutional lawyers Ben Clements, John Bonifaz, and Ron Fein in the book "The Constitution Demands It: The Case for the Impeachment of Donald Trump." Clements, Bonifaz and Fein argue that by accepting illegal payments from foreign governments, using government agencies to persecute political enemies, obstructing justice, abusing the pardon power, and undermining freedom of the press, Trump has made the case for eight articles of impeachment.

It is important to remember, however, that impeachment as understood by the founders was not a legalistic mechanism. It was a political tool for challenging and addressing all of the threats that errant officials might pose to the republic. The term “high crimes and misdemeanors” was deliberately broad in scope — and potential interpretation — so that future generations could apply it with an eye toward checking and balancing the abuses of executives whose infamy the founders could never have fully predicted in times the founders could never have fully imagined.

George Mason told the Constitutional Convention: “No point is of more importance than that the right of impeachment should be continued.” Impeachment was understood as a necessary tool for ensuring that no president might serve as an “elected despot.” This was not a radical construct. It was a solemn assumption, made in the summer of 1787 by veterans of a struggle against imperialistic monarchy, and made again in the summer of 1974 by the members of the House Judiciary Committee who endeavored to apply the impeachment power to the lawless presidency of Richard Nixon.

One of those patriots was Congresswoman Barbara Jordan. An African-American lawyer and legislator born and raised in the segregated Texas of “Jim Crow” times, Jordan was serving her initial term in the U.S. House of Representatives as the first African-American woman ever elected from the Deep South.

On July 25, 1974, Jordan reflected on her role as “an inquisitor” charged with determining the fate a president who had only recently been re-elected with 61 percent of the vote and a 520-17 Electoral College landslide.

“Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: ‘We, the people.’ It's a very eloquent beginning,” she told her colleagues. “But when that document was completed on the 17th of September in 1787, I was not included in that ‘We, the people.’ I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in ‘We, the people.’”

There was perfection in the language that Jordan chose on that historic day. She took hold of the right of impeachment and made it what it should always have been: the possession of every American. Every American. And she declared that this right must have meaning, not merely in history but in the present.

“James Madison, again at the Constitutional Convention, (said): ‘A president is impeachable if he attempts to subvert the Constitution.’ The Constitution charges the president with the task of taking care that the laws be faithfully executed,” she explained, “and yet the president has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice.”

Wearing the whole armor of history, she explained why the standard would need to be applied to Richard Nixon’s sins against the republic. “If the impeachment provision in the Constitution of the United States will not reach the offenses charged here,” said Jordan, “then perhaps that 18th century Constitution should be abandoned to a 20th century paper shredder!”

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Those are words as wise as any handed down from George Mason or James Madison. They form an impression of the impeachment power as we today must recognize it. So, too, does Jordan’s willingness in so charged a moment to maintain the right of impeachment as a congressional imperative.

“Has the president committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That's the question,” explained the congresswoman. “We should now forthwith proceed to answer the question.”

It is again time, as Gwen Moore suggests, for members of Congress from both parties to ask: “Has the president committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate?” This is the necessary question that extends from the founding moment of 1787 through the accountability moment of 1974 to the urgent moment of today. It demands more of us than many of our ancestors were willing to provide the republic. But not more than George Mason demanded. Not more than Barbara Jordan demanded. Not more than solemn and sincere patriotism has always demanded of us.

John Nichols is associate editor of The Capital Times. He wrote the foreword to the new book "The Constitution Demands It: The Case for the Impeachment of Donald Trump" (Melville House), from which this column is adapted. jnichols@madison.com and @NicholsUprising. 

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