Presidential Elections in the Shadow of Impeachment: high crimes and the resilience of American democracy

Presidential Elections in the Shadow of Impeachment: high crimes and the resilience of American democracy

* Intervento tenuto dalla professoressa Pamela Beth Harris (John Cabot University) durante l’incontro “Verso USA 2020”, prima giornata del ciclo “A Transatlantic Take on American Elections 2020” organizzato dal Dipartimento di Scienze Politiche dell’Università RomaTre con il patrocinio del CISPEA e dell’Ambasciata degli Stati Uniti in Italia. L’incontro si è svolto nel Dipartimento di Scienze Politiche di RomaTre il 13 Dicembre 2019


“Impeachment Light”

Never before has the presidential candidate of a major party prepared to run for re-election under the shadow of impeachment. This is an astonishing prospect. It signifies that our competitive party system isn’t equipped to weed out candidates demonstrably hostile to the rule-of-law. And so, here we are, facing a presidential election under the shadow of impeachment, contemplating the frightful possibility that a demagogue might win the presidency, and then use that power to hijack the very electoral processes that are supposed to discipline him in the first place.

On December 10, the House Judiciary Committee released its draft Articles of Impeachment, accusing President Trump of high crimes. It is a short document, and it telescopes just two sets of impeachable acts. First, it accuses the President of Abuse of Power, by improperly withholding defense appropriations to Ukraine, in order to pressure the Government of Ukraine to announce a criminal investigation of Joe Biden, Trump’s likely rival in the 2020 presidential election.

The second accusation against the President points to his patent obstruction of Congress, in directing his entire administration to categorically defy lawful orders from Congress to share information.

The Articles of Impeachment conclude with these strong words: “In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States. Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

The Articles will soon be voted upon by the full House, where they will surely pass. This will make Trump the third president to be impeached by the House (and the fourth, counting Nixon, to be the target of Articles of Impeachment). An interesting question now is whether any Republicans will vote in favor on impeachment, making the accusations seem more strong and bipartisan; a somewhat less interesting question is whether any Democrats will vote against it (probably), making the accusations seem more dubious. After that, the accusations go the Republican-controlled Senate for trial, which could end with acquittal or conviction, leading to censure or removal and disqualification. Despite the gravity of the accusations, and the lack of any real dispute about their factual underpinnings, a conviction in the Senate is still really hard – though not impossible – to imagine. It takes sixty-seven out of one hundred votes to convict, which means that about twenty Republicans would have support it.

One hopes that Republicans in the Senate would demonstrate some basic responsibility as statesmen and stateswomen, faced with incontrovertible evidence as compared to their colleagues in the House. As the incriminating facts against Trump pile up, it is hard to imagine how any conscientious American, let alone one who has taken an oath to uphold our Constitution, could continue to support him. In marginal cases, some Republican Senators might face pressure from their constituents to convict. By the same token, some Democrats might face pressure from their constituents not to. But the country is basically polarized, and we view this, as so much else, though the lenses of our respective political tribes. This contest is about loyalty and identity, rather than norms and facts. And so neither side is likely to persuade the other.

What is the significance of this impeachment show, then, if it’s not likely to lead to the conviction and removal of Trump? What do Democratic leaders seek to accomplish in moving forward with it?  It is instructive to note that they chose to focus on just two articles of impeachment, out of a panoply of plausible presidential high crimes. There has been much public debate about this in recent weeks, and we know that the House Intelligence Committee also wanted to include obstruction of justice in the investigations of Russian interference in the 2016 election. So, we see that the Democrats’ goal here isn’t simply to define the historical record of this presidency for posterity. Instead, they hope that it will serve them well in the upcoming election, by shaming their rival with a scarlet I, which is the ultimate disgrace in our constitutional morality.

Whether or not this will work is a wide open question, which takes us to the heart of what I want to talk about today: the kind of tribalism that defines our politics and that will characterize the 2020 elections. The President’s reaction to these Articles was characteristically brazen and vulgar, taunting the Democrats for only launching two articles of accusations of high crimes against him. “Only two articles?”, he asked. “This is impeachment light,” he said, “This is the lightest impeachment in the history of our country by far.” It is important to appreciate why he is really proud of this “impeachment light”. He is proud to be getting away with something, beating the system, because he and everyone else know that he deserves so much more. The fact is that he is an open and proud enemy of the Constitution. This makes him different from most or maybe all other presidents: even when stretching or violating the constitution, they have at least found it politically opportune to sing its praises. But Donald Trump’s disdain for the constitution is a large part of his popular appeal. Insofar as we identify with his tribe, he promises to free us from the withering hypocrisy and effeminate morality of equal citizenship and the rule of law.

So, in framing impeachable high crimes as the attempt to degrade the integrity of the 2020 elections, these Articles define the ultimate choice as that between a Democrat, on the one hand and, on the other, a high criminal who has betrayed the nation to get himself reelected. The choice is between upholding the constitution and degrading or even destroying it. I think that this dramatic definition is justified by the facts that we have before us. But I am not sure how it is going to work. Given the distortions of the popular will affected by our Electoral College, we have to face the prospect that Trump could be reelected, the shadow of impeachment notwithstanding. There is much reason to doubt that an impeachment trial in the Senate will change Republican minds. It may even exacerbate their sense of victimhood, and eventually backfire against the Democrats. This is because the inexorable logic of Trumpian populism is that he can do no wrong. He is the embodiment of the democratic will of the “real” (“white”, Christian) people, and they will always support him. From this perspective, the Democrats who challenge him are the real traitors to the nation, not Trump, with his supposed high crimes.


Our Unresolved Civil War

I believe that the constitutional crisis that we are witnessing today – a President who has the support of an entire political party, and a significant part of the population, in pursuing an anti-constitutional politics – has very deep roots. It stems from what I would call our unresolved Civil War.

We know that slavery was embedded in our original Constitution, which sought to strike a balance between the interests of the Southern states, characterized by an economy based on slavery, and the Northern ones. This equilibrium was upset by the admission of new states from the West into the Union, favoring policies tilted more towards the North, and ultimately provoking the Southern states to secede from the Union, in rejection of the supremacy of the federal constitution. We still learn in school that the Civil War that ensued between the Northern and Southern states was about slavery, that the North’s economic and political drive to preserve the Union was really powered by a moral crusade against slavery. But this narrative of the Civil War as an essentially moral crusade against slavery distorts our sense of ourselves, on both sides.

To the extent that we identify with the winners, it leads us to believe that the forces of good vanquished the forces of evil, and that we are good too. This allows us to forget how important slavery was, not only to the economy of the South, but also to the North as well.  Northern manufacturing and trade, Northern wealth and power, benefited from artificially cheap primary products from the South. But the perpetual sense of Northern moral superiority over the South – however rooted in a false consciousness – continues to this day.  If we identify more with the Confederate losers, we feel like victims, denied our freedom and right to self-determination, by the hypocritically moralistic winners.

The North won the war, and succeeded in giving it a higher moral meaning by inscribing in the Constitution freedom, equal citizenship and political rights for the ex-slaves, in the 13th, 14th, 15thAmendments. But the 14thAmendment’s promise of equal citizenship would not even begin to be realized for almost 100 years after that, until the Civil Rights movement of the mid-20thcentury and, even now, it remains an essentially contested part of the Constitution. The Confederate states were vanquished, and some were forced to ratify the 14thAmendment, in order to regain representation in Congress upon their readmission to the Union. They never accepted their former slaves, and their descendants, as equal citizens, and still don’t in certain respects. Racial apartheid laws in the South kept the slaves’ descendants in a legal condition of total subordination. These laws, by the way, would later inspire Nazi lawyers drawing up their own racial codes (some of whom actually found the Southern laws to be too harsh!). These laws would be challenged by 14thAmendment litigation, starting in the 1950s. “We” (those who identify with the winners) still celebrate the Supreme Court’s 1954 decision in Brown v. Board of Education, which declared racial segregation in education to be inherently unconstitutional, and identified the Constitution with the value of racial justice and equality. But at the same time, social, market discrimination against African-Americans – in the South, and the North, and the West – has been vicious and systematic to this day: access to employment, mortgages, education, protection against police violence, and mass incarceration have made true equal citizenship an ever distant goal.

The civil rights movement picked up speed in the mid-1960s, with the important legislation of Civil Rights Act of 1964 and Voting Rights Act of 1965, aiming to make the post-Civil War constitution real and effective. The Democratic party embraced this, and the parallel expansion of the social welfare state, to further the basic economic equality of all citizens. The Democratic party’s adoption of the civil rights agenda has won it the reliable support of African-American voters. It has also deeply alienated Southern whites, who have migrated to the Republican party, which is now deeply identified with them.

White Republican pushback against equal citizenship takes many forms:

  • Voting rights’ limitations at the state level: burdens on exercise of voting rights, distorting representation though extreme partisan gerrymandering;
  • Expansion of the criminal justice system, mass incarceration;
  • Opposition to the welfare state. Even those whites who would benefit from it resent it for lifting up unworthy “others”, eroding the social line that is supposed to keep whites distinct and superior.

The partial way in which we have and have not processed the Civil War, have and have not achieved equal citizenship, sheds light on how we define ourselves politically today.

  • Liberal Democrats think that white, working-class Republicans don’t know their true interests. They do not appreciate the fear, shame or pride that drives their rivals to want to preserve a social order in which they have a certain honor and dignity, as part of a fixed ethno-national hierarchy.
  • Conservative Republicans resent liberal Democrats for seeking to undo the traditional social order, for their hypocritical moralism, and their arrogant pretense of cultural superiority. Think of the Macron/Trudeau/Johnson laugh at Trump’s expense, at the NATO summit last week. We can understand the fantastic appeal of Trump, who promises his people redemption from liberal, moralistic judgment. He promises that they can be great – superior – again, and they don’t have to do anything: just being their white, non-immigrant selves, is enough to warrant their elevated status.

So white nationalism continues to be a real and widespread force in American society and politics. Its conquest of the nation’s highest office has made it increasingly unchained. The constitutional guarantee of equal citizenship may be sufficiently odious to some Americans to motivate their diffidence towards the Constitution as a whole. Certainly, Trump’s re-election would signify the irredeemable erosion of constitutional norms, a new civil war, as white supremacists seek to cancel the 14th Amendment.

Maybe there is a silver lining in all this: unprecedented mobilization, new emphasis on state and local democracy. The extraordinary work of ordinary citizens (mostly women) in resisting Trumpian nationalism – in calling meetings, fundraising, pressuring elected representatives, writing articles, organizing demonstrations and running for office – is a great source of hope and inspiration.

Still, even if Trump doesn’t win reelection, Trumpism – white nationalism – is an eternal feature of American politics, baked into our constitution from the very beginning. It is a toxic, dangerous force. And at the same time, it has enabled our Union in the first place. It enabled our democracy, by favoring the assimilation of “lowly” European immigrants – like Italians, Irish and Jews.  It is the other side of the American dream. So many Americans, Democrats and Republicans alike, have to own this past and present if we are to take responsibility for our future.

Ta-Nahisi Coates, in his 2014 article, “The Case for Reparations” writes that: “White supremacy is not merely the work of hotheaded demagogues, nor a matter of false consciousness, but a force so fundamental to America that it is difficult to imagine the country without it.

And so we must imagine a new country. Reparations – by which I mean the full acceptance of our collective biography and its consequences – is the price we must pay to see ourselves squarely. The recovering alcoholic may well have to live with his illness for the rest of his life. But at least he is not living a drunken lie. Reparations beckons us to reject the intoxication of hubris and see America as it is – the work of fallible humans.”




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