Which Norms Are Inviolable?

The New York Times and the Washington Post, impelled, no doubt, by Cass Sunstein’s recent book, are back on the “Impeach Trump” bandwagon. There are op-eds on both of their opinion pages supporting such a course of action. For example, in the NYT Michelle Goldberg writes:

Some members of Congress are awaiting the results of the investigation being conducted by Robert Mueller, the special counsel, and the case for impeachment may become stronger when his inquiry is complete. Yet whatever Mueller discovers, we have credible reasons for impeachment right now. The Constitution dictates that presidents be impeached for “treason, bribery, or other high crimes and misdemeanors.”

But as the Harvard Law scholar Cass Sunstein, author of the recent book “Impeachment: A Citizen’s Guide,” told me, that doesn’t mean Congress can impeach only a president who is caught breaking the law. “Crime is neither necessary nor sufficient,” said Sunstein, who emphasizes that his book is not about Trump. “If the president went on vacation in Madagascar for six months, that’s not a crime, but that’s impeachable.”

while Barbara Radnofsky adds from the WP:

Again and again, they anticipated attributes and behaviors that President Trump exhibits on an all-too-regular basis. By describing “High Crimes and Misdemeanors,” the grounds for impeachment, as any act that poses a significant threat to society — either through incompetence or other misdeeds — the framers made it clear that an official does not have to commit a crime to be subject to impeachment. Instead, they made impeachment a political process, understanding that the true threat to the republic was not criminality but unfitness, that a president who violated the country’s norms and values was as much a threat as one who broke its laws.

Their arguments fill me with questions. First, doesn’t Ms. Radnofsky’s argument undercut claims that the Republican House acted wrongly in impeaching Bill Clinton? That’s precisely the argument advanced by Ms. Goldberg. If violating “the country’s norms and values” is sufficient, isn’t that what Mr. Clinton did?

Didn’t President Obama’s signing into law the Affordable Care Act also violate an important norm? IIRC it was the first time major social legislation had ever been enacted on a strictly partisan basis. Should the incoming Republican House have impeached President Obama?

Finally, breaking the law is one thing but violating “norms and values” is something else again. Every president of my memory which goes back to the Truman Administration has violated “norms and values” at one time or another in his presidency. Should they all have been impeached? Doesn’t impeachment for violation of “norms and values” render the standard even more vague than the constitutional formula “high crimes and misdemeanors”? Doesn’t a “decent respect for the opinions of mankind” call for a more rigorous definition?

“High crimes and misdemeanors” are whatever the House says they are. If the House decides that Trump is just too awful and he is impeached because he’s an arrogant, loud-mouthed obnoxious boor, they will be acting within their powers but don’t expect his supporters to take it lightly. You’ll even raise some hackles among people who don’t support him.