Inside Impeachment's Rise as a Weapon of Partisan War

If the House follows the committee's recommendation this week and removes Homeland Security Secretary Alejandro N. Mayorkas, it will be the first time in American history that a sitting Cabinet official has been removed. But Mr. Mayorkas is not so lonely.

Republicans have also filed articles of impeachment against his boss, President Biden, as well as Secretary of State Antony J. Blinken, Defense Secretary Lloyd J. Austin III, Attorney General Merrick B. Garland and Christopher A. Wray, the FBI director. they threaten them against Secretary of Transportation Pete Buttigieg and Secretary of Education Miguel Cardona.

Threats of impeachment have become a favorite pastime for Republicans, following the example of former President Donald J. Trump, who has urged allies for payback for his own two impeachments during his time in office. The chances of Mr. Mayorkas, let alone Mr. Biden, ever being convicted in the Senate, without some shocking revelation, appear to be virtually zero, and the others appear to be in no serious danger of even being formally passed by the House are accused.

But impeachment, once seen as perhaps the most serious check on corruption and abuse of power developed by the Founders, now appears in danger of becoming a constitutional dead letter, just a weapon in today's bitter, tit-for-tat party political wars. Mr. Trump's two acquittals made clear that a president could be assured of retaining office, no matter how serious his transgressions, as long as his party stood by him and the impeachment effort in search of a major crime is the Biden era written off as just more politics.

“Impeachment has become more of a political and public relations tool than a serious mechanism of executive accountability,” said Jack Goldsmith, a Harvard Law School professor and former top Justice Department official under President George W. Bush. “It is consistent with the decline in standards in Washington's institutions and the ever-increasing weaponization of legal tools to harm political opponents.”

The current impeachment proceedings in the House of Representatives have been stinging for the Biden team and certainly for Mr. Mayorkas, who this week issued a defiant seven-page letter before the House Homeland Security Committee voted for articles of impeachment against him along party lines. But while impeachment consumed the White House under Richard M. Nixon, Bill Clinton and Mr. Trump, it is hardly a side issue in the Biden West Wing.

Not a single Democrat has expressed support for impeaching Mr. Biden or his advisers, unlike previous impeachment proceedings in which at least a handful of members of the incumbent party were open to doing so. On the contrary, several Republicans have ridiculed their party's zeal for impeachment. Whatever his son Hunter did, they note, there is no evidence that Mr. Biden did anything wrong, and Mayorkas's impeachment centers on a policy dispute, not a criminal accusation.

That won't change if Mr. Trump defeats Mr. Biden this fall and returns to office. It is difficult to imagine that impeachment will provide as much of a brake on any excesses in a second Trump presidency – already the only president ever to be impeached (and acquitted) twice, Mr Trump would have serious concerns about a get deposed a third time? ?

It is remarkable how quickly impeachment has been abandoned as a serious constitutional tool to rein in a rogue executive branch.

When drafting the Constitution, the framers chose to include an impeachment clause to prevent the despotism from which the Americans had just freed themselves during the Revolution. Initially, they decided that presidents and other officials could be impeached by a majority in the House of Representatives and convicted by a two-thirds majority in the Senate for “treason or bribery.”

George Mason thought this was too restrictive and proposed adding “mismanagement” as a criminal offence, i.e. incompetence. But James Madison objected, finding it too broad and arguing that it would make the president subject to the whims of the Senate. Mason withdrew, but then proposed the phrase “or other high crimes and misdemeanors” as an alternative.

It was elegant, but the framers hadn't precisely defined it. Alexander Hamilton made it clear that the phrase meant transgressions “relate primarily to injuries immediately inflicted on society itself” – in other words, no ancient crimes would be impeachable, but only those that were an insult to the people or the system.

It was meant to be rare and for decades it was. Only 21 times has the House of Representatives voted to impeach a government official, and only eight times has the Senate convicted and removed from office, all judges who otherwise had life terms. The only other Cabinet official targeted for impeachment, William Belknap, the war secretary under President Ulysses S. Grant, accused of corruption, resigned in tears minutes before the House took up his case in 1876, but lawmakers voted to impeach him anyway.

It was so rare that no president was impeached until 1868, when President Andrew Johnson was convicted within one vote in the Senate. It was another 130 years before another presidential impeachment took place, the one against Mr. Clinton, who was also acquitted, and only 21 years passed between the second presidential impeachment and the third, involving Mr. Trump.

Just over a year passed between the third and fourth, when Trump was impeached for the second time. If the House goes ahead and impeaches Mr. Biden, there will have been three presidential impeachments in five years — more than in the previous 230 years of the republic combined.

But until recently, impeachment also served as a useful deterrent. At least seven other presidents were targeted for impeachment at some point, without any effect. Some, such as George HW Bush and Barack Obama, have described considering the risk of impeachment before taking actions that could push the limits of their power.

Philip Bobbitt, a longtime professor at Columbia Law School who in 2018 released an updated version of Charles L. Black's classic “Impeachment: A Handbook,” agreed that impeachment was devalued but argued that it would still serve its purpose can serve.

“It's still in the holster,” he said. “Yes, it has been degraded by this poll-based way of raising money, but it is not inconceivable that you will get a president who will actually do something that is in the middle of the law. It is not enough to say that the impeachment process has now changed to the point where it is merely a tool for character assassination. It is that. But it's not just that.”

Michael J. Gerhardt, an impeachment scholar at the University of North Carolina, said Republicans are using impeachment not to achieve accountability but to do political damage. “The efforts to impeach President Biden and Secretary Mayorkas are clearly attempts to turn impeachment into just another weapon in Washington's partisan warfare,” he said.

“Nevertheless, impeachment continues to hurt,” he added. Impeachment will still be a useful constitutional tool because of the scarlet letter presidents face when impeached, Mr. Gerhardt said, citing Mr. Clinton and Mr. Trump. “Presidents care about their legacies, and impeachment tarnishes them forever.”

Indeed, it is that incentive that may drive Mr. Trump, who has made no secret of his desire to oust Mr. Biden and his team in revenge for his own impeachments. “They did it to me,” he said in a radio interview last fall. “If they hadn't done it to me,” he added, “you might not want it done to them.”

The proliferation of impeachment resolutions includes a range of alleged violations, but as in the case of Mr. Mayorkas, they mainly stem from Republican criticism of the way officials do their jobs. In Mayorkas' case, Republicans blame him for releasing illegal immigrants pending court hearings rather than detaining them, but Congress has not provided enough detention facilities to actually hold all migrants crossing the border.

Republicans, who argue that Mr. Mayorkas is not following the law, have moved to define his failures as a major crime, a claim that even some fellow Republicans have rejected. including Michael Chertoff, a Secretary of Homeland Security under the second President Bush. In fact, that logic is more like a parliamentary system in which legislators can withdraw their confidence in a minister.

Biden's team has mocked Republicans for their desire for impeachment. In a statement released this week, the White House boldly asked, “Is there anyone that House Republicans do not want to impeach?”

David Frum, a former Bush speechwriter who has become one of Trump's most outspoken critics, added his own suggestion. Given the Republican uproar over the possibility of a famous singer endorsing Mr. Biden, he joked that the “countdown” had “begun to the Republican impeachment of Taylor Swift by the House of Representatives.”