The audience watching the House Judiciary Committee debating the articles of impeachment against President Trump on Wednesday night. Photo / Erin Schaff, The New York Times
As the House takes another step toward impeaching President Trump, concern is increasing that trying to remove a president will become a more common partisan tool.
It was a powerful congressional weapon deployed in only the most extreme cases, so explosive that lawmakers feared the wider damage it could do if used for the wrong reasons. Today, the filibuster is an everyday part of Senate business, standard operating procedure in a polarised world where the once rare has become commonplace.
With the House poised to impeach President Donald Trump on a mainly party-line vote and Republicans already threatening retribution, fears are mounting that presidential impeachment might, like the filibuster, become a regular feature of America's weaponised politics, with members of the party out of the White House but in control of the House routinely trying to oust a president they find objectionable.
The escalating use of the filibuster and the rising toxicity of Supreme Court confirmation hearings are examples of how scorched-earth politics can be hard to extinguish once one party feels aggrieved and gets the opportunity to exact revenge.
"We've already got the forms, all we have to do is eliminate Donald Trump's name and put Joe Biden's name in there," Rep. Louie Gohmert, R-Texas, declared Monday, suggesting that Republicans could easily go after a Democratic president if control of the White House and the House were flipped.
Presidential impeachment was once almost unthinkable because of the gravity of overturning the results of an election. For more than two centuries, only one president — Andrew Johnson in 1868 — was subjected to a Senate trial. It became more common in the political lexicon after President Nixon resigned in the face of impeachment in 1974.
After President Bill Clinton's impeachment, trial and 1999 acquittal, some opponents of his next two successors, George W. Bush and Barack Obama, unsuccessfully raised calls to impeach them. In 2016, some top congressional Republicans discussed impeaching Hillary Clinton before the election was even held. And, as House Republicans have frequently mentioned, some liberal advocacy groups were calling for Trump's impeachment in the days before his inauguration in January 2017.
"The question going forward, of course, will be whether the Trump impeachment conditions the public to understand impeachment as a tool of normal politics, or whether it retains its exceptional character," said Josh Chafetz, a constitutional law professor at Cornell Law School. "The Clinton impeachment does not seem to have been enough to make it a tool of normal politics, but maybe this time will be different."
Top Democrats acknowledge being torn. Speaker Nancy Pelosi recalled recently that she was under pressure to initiate impeachment proceedings against Bush for invading Iraq on the false premise of weapons of mass destruction, but she resisted.
"I just didn't want it to be a way of life in our country," she said during a town hall on CNN.
Rahm Emanuel, who served in the Clinton White House during the impeachment, agrees that there is a risk that "we are going to normalise impeachment and it is going to have a cascading effect in the way Bork became a term," he said, referring to Robert H. Bork, the Supreme Court nominee rejected after a fiery 1987 hearing that inflames conservatives to this day.
But like Pelosi, with whom he later served in the House leadership, Emanuel said the greater risk was to ignore what he considered egregious and clearly impeachable behavior by the president.
"You have to weigh both of those and realize that you cannot as a country of laws allow someone to conduct themselves as if the law doesn't apply to them," Emanuel said.
Yet Republicans see the current episode through the opposite lens, saying that the Republican-led impeachment of Bill Clinton was fully justified while the action against Trump is purely political and unsupported by the evidence.
"President Clinton committed a crime, perjury," Rep. Steve Chabot, R-Ohio, who voted to impeach Clinton in 1998, said Thursday as the House Judiciary Committee drafted articles of impeachment against the president. "This president isn't even accused of committing a crime."
The case of the filibuster is instructive, though, unlike impeachment, the power to filibuster is not laid out in the Constitution. A distinguishing characteristic of the Senate, it was used very sparingly for decades — most notoriously to block social legislation such as civil rights bills.
But as control of the Senate shifted back and forth in the past 20 years, use of the filibuster grew along with polarisation as both parties employed it to block judicial nominations and legislation.
A supermajority requirement on nearly all major matters became essentially automatic. The judicial fights reached a point in 2013 where Democrats abolished the 60-vote threshold on most nominations and Republicans then eliminated it in 2017 for Supreme Court nominations. Some progressives are now suggesting that it be eliminated for legislation as well if Democrats retake the White House and Senate, arguing that any new Democratic initiatives would otherwise simply be bottled up by Republicans.
Of course, the opportunity to employ the filibuster occurs much more frequently than a presidential impeachment. Impeachment would require a special set of circumstances such as now exists, with the House controlled by a party clashing with the president of another. And the national spectacle of a full-blown impeachment proceeding and trial, as Republicans learned in the Clinton case, carries much more significant political risks than quietly blocking legislation on the floor of the Senate.
In the hours before Thursday's vote in the Judiciary Committee, Rep. Kelly Armstrong, R-N.D., recited a litany of past presidents of both parties who had drawn charges of abusing their power, and cautioned his colleagues that impeachment was becoming "the new normal."
"In the history of our country, the party who is not in the White House has accused the White House of abuse of power," Armstrong said. "It started 200 years ago, it will continue into the future, except now, congratulations, it will be impeachment every single time one party controls the House of Representatives and the other party is in the White House."
Pelosi's initial reluctance to pursue impeachment — suggesting it would be too divisive and should be thoroughly bipartisan — suggests that no party would want to enter into impeachment lightly.
"I don't buy the argument that just because we have the incident of bad behavior by a president that impeachment is necessarily built into our system now," said Wendy J. Schiller, the chair of the political science department at Brown University.
"There is a threshold in the American public mind about what is overreach by the president of the United States on what is unacceptable behavior," she said. "Using the Oval Office to get dirt on your opponent is something people can understand."
Republicans say what their voters understand is that Trump is being railroaded and that Democrats are simply intent on undoing a 2016 election result they found reprehensible.
"The Pandora's box they have opened today will do irreparable injury to our country in the years ahead," Rep. Mike Johnson, R-La., said at Thursday's Judiciary Committee session.
Congress is barrelling toward a House impeachment vote and Senate trial where the results seem preordained. What cannot be known now is the future effect on American politics. But recent history shows these titanic clashes cause wounds that do not heal quickly and can lead to reprisals.
Written by: Carl Hulse
Photographs by: Erin Schaff, Pete Marovich and Anna Moneymaker
© 2019 THE NEW YORK TIMES
The vice president has made a final pitch to voters for the top job in the critical swing state. Video / TVNZ