The case for starting a formal impeachment inquiry

Does the impeachment process remain on hold until such time as a president who displays pathological mendacity tells a lie with calamitous consequences? To take this view is to relegate impeachment to the function of an after-the-fact remedy, a cleaning of the barn after the horse is long gone. This is conceivably the result of a fundamental confusion over the function of impeachment. If a president is removed from office, the Senate must vote to “convict.” Impeachment then assumes the look and feel of a punishment, just desserts for offenses committed, rather than, in Madison’s words, a defense of the community against negligence, incapacity or perfidy. In fact, impeachment is a measure to protect against harm, not to exact rough constitutional justice for damage already done.

At the root of the problem is the wrong lesson learned from the constitutional history. The Founders did not bequeath a fixed conception of the role of impeachment, nor could they have done so. While preoccupied with abuse of power, the Founders were concerned less about the presidency than about the Congress. They took the legislative branch to be the “dangerous branch.” They did not and could not look ahead to the time when that would be far from true. They did not imagine a legislature so widely noted for its impotence and fecklessness, or an executive glorying in its massive powers and regularly and with considerable success asserting claims to still more. The process norms governing resort to impeachment have to be revised to meet the actual structure and relationship of our governing institutions. Impeachment is a defense against a dangerous presidency and it is in 21st century terms, not those of the 18th or 19th century, that the potential danger is best understood.