Inside Impeachment’s Rise as a Weapon of Partisan Warfare

WASHINGTON — If the House follows through on this week’s committee recommendation and impeaches Alejandro Mayorkas, the secretary of homeland security, it will be the first time in American history that a sitting Cabinet officer has been impeached. But Mayorkas is not as lonely as all that.

Republicans have also filed articles of impeachment against his boss, President Joe Biden, as well as Secretary of State Antony Blinken, Defense Secretary Lloyd Austin III, Attorney General Merrick Garland and FBI Director Christopher Wray, while threatening them against Transportation Secretary Pete Buttigieg and Education Secretary Miguel Cardona.

Indeed, threats of impeachment have become a favorite pastime for Republicans following the lead of former President Donald Trump, who has pressed his allies for payback for his own two impeachments while in office. The chances of Mayorkas, much less Biden, ever being convicted in the Senate, absent some shocking revelation, seem to be just about zero, and the others appear in no serious danger even of being formally accused by the House.

But impeachment, once seen as perhaps the most serious check on corruption and abuse of power developed by the founders, now looks in danger of becoming a constitutional dead letter, just another weapon in today’s bitter, tit-for-tat partisan wars. Trump’s two acquittals made clear that a president could feel assured of keeping his office no matter how serious his transgressions, as long as his party stuck with him, and the impeachment-in-search-of-a-high-crime efforts of the Biden era have been written off as just more politics.

“Impeachment has become more of a political and public relations tool than a serious mechanism of executive branch accountability,” said Jack Goldsmith, a Harvard Law School professor and a former top Justice Department official under President George W. Bush. “It is of a piece with the decline of norms across Washington institutions and the ever-rising weaponization of legal tools to harm political opponents.”

The current impeachment drives in the House have been nettlesome to the Biden team and certainly to Mayorkas, who issued a defiant seven-page letter before the House Homeland Security Committee voted for articles of impeachment against him along party lines this week. But where impeachment consumed the White House under Richard Nixon, Bill Clinton and Trump, it is barely an afterthought in the Biden West Wing.

Not a single Democrat has expressed support for impeaching Biden or his advisers, unlike past impeachments when at least a handful of the incumbent’s party were open to it. Indeed, to the contrary, several Republicans have derided their party’s zeal for impeachment. Whatever his son Hunter Biden did, they note, there is no evidence that the president did anything wrong, and the Mayorkas impeachment centers on a policy dispute, not a criminal accusation.

Nor will that change if Trump defeats Biden this fall and returns to office. It is hard to imagine that impeachment will serve as much of a restraint against any excesses in a second Trump presidency; already the only president ever to be impeached (and acquitted) twice, would Trump seriously be worried about being impeached a third time?

It is remarkable how quickly impeachment has been diminished as a serious constitutional instrument for reining in a rogue executive.

In crafting the Constitution, the framers opted to include an impeachment clause to prevent the despotism Americans had just freed themselves from in the Revolution. At first, they decided that presidents and other officers could be subject to impeachment by a majority in the House and conviction by a two-thirds majority in the Senate for “treason or bribery.”

George Mason thought that was too limited and proposed adding “maladministration” as an impeachable offense, meaning incompetence. But James Madison objected, deeming it too broad and arguing that it would make the president subject to the whims of the Senate. Mason backed down but then proposed as an alternative the phrase “or other high crimes and misdemeanors.”

It was elegant, but the framers did not define it precisely. Alexander Hamilton made clear that the phrase meant offenses that “relate chiefly to injuries done immediately to the society itself”; in other words, not any old crime would be impeachable, but only those that were an offense against the people or the system.

It was meant to be rare, and for decades, it was. Only 21 times has the House voted to impeach a government official, and only eight times has the Senate convicted and removed them from office, all of them judges who otherwise had life tenure. The only other Cabinet official targeted for impeachment, William Belknap, the war secretary under President Ulysses S. Grant accused of corruption, resigned tearfully minutes before the House took up his case in 1876, but lawmakers voted to impeach him anyway.

It was so rare that no president was impeached until 1868, when President Andrew Johnson came within one vote of being convicted in the Senate. It took another 130 years for there to be another presidential impeachment, the one against Clinton, who was also acquitted, and just 21 years passed between the second presidential impeachment and the third, involving Trump.

A little over a year passed between the third and the fourth, when Trump was impeached a second time. If the House goes ahead and impeaches Biden, there will have been three presidential impeachments in five years — more than in the previous 230 years of the republic combined.

But until recently, at least, impeachment also served as a useful deterrent. At least seven other presidents were targeted at one point with impeachment without it going anywhere. Some, like George H.W. Bush and Barack Obama, have described contemplating the risk of impeachment before taking actions that might push the boundaries of their power.

Philip Bobbitt, a longtime Columbia Law School professor who in 2018 released an updated version of Charles L. Black’s classic “Impeachment: A Handbook,” agreed that impeachment had been devalued but argued that it could yet serve its purpose.

“It’s still in the holster,” he said. “Yes, it’s been degraded in this poll-driven way of raising money, but it’s not inconceivable that you’ll have a president who really will do something that is down the center stripe of the law. It’s not enough to say that impeachment is so changed now that it’s just one more tool of character assassination. It is that. But it’s not just that.”

Michael Gerhardt, an impeachment scholar at the University of North Carolina, said Republicans were using impeachment not for accountability but for political damage. “The pushes to impeach President Biden and Secretary Mayorkas are plainly attempts to make impeachment just another weapon in the partisan warfare of Washington,” he said.

“Nonetheless, impeachment still stings,” he added. Impeachment will still be a useful constitutional tool because of the scarlet letter that presidents perceive in being impeached, Gerhardt said, citing Clinton and Trump. “Presidents care about their legacies, and impeachments taint them for all time.”

Indeed, it is that sting that may be driving Trump, who has made no secret of his desire to impeach Biden and his team as revenge for his own impeachments. “They did it to me,” he said in a radio interview last fall. “Had they not done it to me,” he added, “perhaps you wouldn’t have it being done to them.”

The proliferation of impeachment resolutions covers a gamut of supposed offenses, but as in the case of Mayorkas, they mainly stem from Republicans’ criticism of the way officials do their jobs. In Mayorkas’ case, Republicans fault him for releasing illegal immigrants pending court dates rather than detaining them, but Congress has not provided enough detention facilities to actually hold all of the migrants coming across the border.

Republicans, arguing that Mayorkas is not fulfilling the law, have contorted to define his flaws as a high crime, a contention that even some fellow Republicans have rejected, including Michael Chertoff, a secretary of homeland security under President George W. Bush. In effect, that logic resembles more a parliamentary system in which lawmakers can vote no confidence in a minister.

Biden’s team has mocked Republicans over their appetite for impeachment. In a statement issued this week, the White House asked cheekily, “Is there anyone House Republicans won’t impeach?”

David Frum, a former Bush speechwriter who has become one of the most vocal Trump critics, added his own suggestion. Noting the Republican uproar over the possibility that a famous singer might endorse Biden, he joked that the “countdown” had “begun to the House Republican impeachment of Taylor Swift.”

This article originally appeared in The New York Times .