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Jonathan Bernstein

I’ve argued that the House shouldn’t begin formal impeachment proceedings against President Donald Trump at this point because few if any Senate Republicans have indicated that they’d be willing to consider the evidence, and therefore impeachment and removal simply isn’t available.

But what about on the merits? One way to judge the strength of the case for impeachment is to consider the case made against it by the president’s defenders. And so far, at least, their arguments are awfully weak.

The contention I see most often is basically Trump’s: the false claim that special counsel Robert Mueller’s probe totally exonerated him, and thus there’s nothing impeachable to be found. I’m not talking about arguments over Mueller’s conclusions or his evidence; I’m talking about the president’s claim that Mueller found “no collusion, no obstruction.” Since Mueller did in fact find plenty of evidence of obstruction, that’s not a very convincing argument.

Also unconvincing are claims that more or less read impeachment out of the Constitution. Alan Dershowitz, for example, thinks that the courts could and should intervene to protect Trump, something that very few lawyers or political scientists think there’s any constitutional basis for. Keith E. Whittington has a thorough rebuttal. This argument also fails on practical terms: If there is some scenario in which at least 20 of the 53 Republicans in the Senate could join with Democrats to remove Trump, it’s highly unlikely that the courts would intervene. That’s because, by that point, the partisan Republican position would be to replace Trump with Vice President Mike Pence. And to the extent that federal judges are politically loyal, they’re likely to support the Republican Party and not Trump personally.

(As an aside: Whatever the low chances are of impeachment and removal, my guess is that if it happened, it would be more likely to have the support of 30 or 40 Republicans. Removal would probably be a consequence of the party as a whole deciding enough was enough, not the result of Democrats managing to convince the bare minimum of Senate Republicans to go along with them while the rest of the party still strongly supported the president.)

Fred Hiatt of The Washington Post makes an even weaker argument against impeachment: that everyone knew who Trump was before his election, so it’s too late now. That makes little sense. The case for impeachment rests on Trump’s specific actions in office, not on who he is personally. It’s true that good representation requires that a politician strive to be the person he or she promised to be as a candidate. But even if you think Trump did in some sense promise to ignore the law and undermine the Constitution during his campaign, that’s certainly no defense against impeachment.

None of this proves that Trump has committed high crimes and misdemeanors. But if opponents of impeachment (on the merits) either ignore the obvious evidence or invent new restrictions on the impeachment power – or both – it tends to support the case against him.

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Contact Bernstein at jbernstein62@bloomberg.net.

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