John Yoo: The Framers never would have wanted to see impeachment happen within a year of a presidential election

It’s strange to see a man of the right, which prides itself on following the constitutional text, divining a time constraint on impeachment that isn’t actually in the document. It’s not as if the Framers were unwilling to specify any limits on the impeachment power; it’s famously restricted to “high crimes and misdemeanors.” Nor has Yoo’s view been the view traditionally taken by Congress. Various politicos pointed out last night on Twitter after this bit aired on Fox that Andrew Johnson was impeached in February of a presidential election year. Mitch McConnell had precedent to point to when he roadblocked Merrick Garland’s confirmation on grounds that it was an election year and therefore voters should decide which party gets to fill Scalia’s seat. Yoo doesn’t even have that.

Besides, the nature of the impeachment process means that the will of the electorate will naturally be priced into the calculations made by Congress. For reasons of sheer self-preservation, the House won’t proceed with an impeachment which it has reason to believe would be strongly opposed by American voters. They have to face those voters every 24 months, after all. That’s been Pelosi’s fear all along — that House Democrats would indulge their id by impeaching Trump for flimsy reasons, Senate Republicans would swat them down during a trial, and then a voter backlash to Democratic overreach would lead to Trump being reelected to a second term and the House returned to Republican hands. If the people believe that the House has unfairly usurped their sovereign role in deciding who should lead the executive branch, they’ll deal with them accordingly. Soon.

It’s also easy to imagine worst-case scenarios in which a president would need to be removed immediately for the good of the country. Imagine that Rachel Maddow’s darkest Russiagate fantasy about Trump being a Kremlin-controlled asset had turned out to be true but somehow we didn’t discover it until January 2020. Should Americans be obliged to sit back and let the Kremlin steer U.S. policy for 10 months until the election because it’s somehow “too late” to impeach? Absurd.

The weirdest part of Yoo going this route is that there are much stronger arguments available for defeating an attempt to remove Trump from office. The GOP’s eventually going to settle on the ol’ “bad but not impeachable” defense, which in a sense is foolproof. Because “high crimes and misdemeanors” is vague, virtually anything short of outright treason can be said to have failed to clear the bar. Smart Republicans like Rob Portman and Lamar Alexander are already maneuvering towards that position:

Tim Miller has a piece out today arguing why “bad but not impeachable” is wrong in this case but his logic works even better to counter Yoo’s argument: You can’t leave it to an election to settle whether the president’s committed an impeachable offense if the offense might affect the election itself. If Trump really was withholding desperately needed military aid from Ukraine until they coughed up dirt on the Democratic frontrunner, Ukrainian leaders might have concluded they had no choice but to provide it. Maybe that would have meant a diligent investigation of Burisma, or maybe it would have meant fabricating something whole cloth to damage Biden and satisfy Trump. If American voters had chosen next fall between Trump and Biden based in part on a fake Biden scandal which Trump himself had helped engineer, in what universe would that be a fair referendum on whether Trump had done something impeachable? Again, it’s absurd.

The House gets to impeach when it likes and voters get to whack them hard for it if they agree with the president that this was a “witch hunt.” There’s no time limit and there shouldn’t be.