In his most recent article for the New York Review of Books “Is Trump Above the Law?”, American author Noah Feldman argues that the impeachment process has become entirely partisan and that at this point, it’s highly unlikely that President Donald Trump gets removed from office because even though “Everybody knows that the president has done something that was impeachable and the constitutional process was taken over by political considerations, the real owners of the system, the American people basically shrugged.”
While Feldman thinks this was an artifact of a host of elements, he says that the American people have lost interest in democracy because they’ve become accustomed to their liberties. The “Rise and Fall of the Islamic State” author tells Duvar English columnist Soli Özel about the roots of the impeachment process, House Speaker Nancy Pelosi’s calculations for the Senate trial and why the American people don’t care about democracy anymore.
Soli Özel: Professor Feldman, thank you for accepting to talk to me on the issue of impeachment. The Speaker of the House Nancy Pelosi finally decided to send the articles of impeachment to the Senate and the Senate will then stand as a court with the Chief Justice of the United States presiding. Everybody in the world has become a semi-expert on impeachment and the American Constitutional process. Would you please explain briefly what impeachment is, why it was in the Constitution and I know you think that impeachment was called for. What were the objections? And finally did Nancy Pelosi accomplish anything by holding on to those articles for so long?
Noah Feldman: First of all, impeachment is basically the system that you put in a presidential system of government in order to remove a president who has violated the basic commitments of the Republic. In a parliamentary system, you could have a vote of confidence but you don’t have that in a presidential system. So the only way you could remove a president before the end of his term is by impeachment.
Soli Özel: But in your New York Review of Books article, you make references several times to the British impeachment process as well.
Noah Feldman: Yes I’ll explain that. The founders of the U.S. Constitution understood that they needeed some mechanism since they have a presidential system for removal. Instead of re-inventing the wheel they borrowed the system of removal that the British Constitution used not for the president, there wasn’t one of course, for high government officials. That was already called impeachment and it was already specified that it was impeachment for high crimes and misdemeanors. The British had been doing this since the 1360s. They had already, by then, more than 400 years of experience in using this governmental technology and the key to it was the fact that there were two houses of Parliament just like there are two houses of Congress. The reason that I referred to the historical practice of the British is that when the American Constitution founders adopted the process, they literally just took the words and the procedure from Britain. They didn’t make a significant effort to define what they were doing, they just adopted the mechanism that was available to them. So if you want to understand what the founders meant when they said impeachment, when they said the words ‘high crimes and misdemeanors,’ you need to look to the context and the context for them was explicitly the British system. That goes to the first question of “What’s an impeachment?” In that model, the lower house does the initial fact-finding and makes a recommendation. This is effectively a initiation of prosecution, like an indictment. Then, actual representatives from the lower house go to the upper house and serve as the prosecutors, in the U.S. this is the house managers. That’s where they do the impeachment.
Soli Özel: Both Democrats and Republicans or just the Democrats?
Noah Feldman: It’ll probably just be the Democrats. There might be one person who’s technically an independent though effectively is a Democrat because no Republican in the U.S. House voted in favor of the impeachment, therefore no Republican will go and prosecute. In a better world where this wasn’t completely partisan, you could have Democrats and Republicans jointly participating. So it’s not a rule, it’s just an artifact of the particular circumstances. So that’s the first question.
Why did I think Trump merited impeachment? Because the essence of an impeachable offense is the abuse of the Office of the Presidency for personal gain and that’s particularly bad when the personal gain distorts the electoral process. That’s the first article of impeachment. The reason that’s so bad ofcourse is that in a democracy, if the president uses his office illegitimately or corruptly in order to help his own re-election by harming his greatest opponent, then it’s very difficult to fix that by an election. Because he’s destroying the whole election which would otherwise be used as a check on him. Under those circumstances, you really need another mechanism, namely impeachment. In my mind, the fact that Trump used his office to pressure Ukraine to announce investigations into his most promising political rival, his most dangerous rival, is the very essence of distorting the democratic process. You can’t say ‘well let’s just rely on voting him out of office,’ because the whole point of the investigation was to make sure he stayed in office.
The second article of impeachment was for obstruction of Congress and that’s because when Congress began to investigate Trump, he, in an unprecented way, ordered his entire set of employees, the whole executive branch to refuse to cooperate, not to testify, not to provide documents. He doesn’t have any right to do this, he made it up. In fact it’s worse than that because the Constitution specifically says Congress has the right to impeach, and investigate impeachment. If he can block them, then they can’t investigate. The only reason it’s less obvious to us now is because a majority of his employees ignored him and testified anyways and that provided the evidence. But if you imagine if they’d all listened, then it would have been very difficult for Congress to practice impeachment. Then the only thing they could have done would be to impeach him for obstruction of Congress.
Soli Özel: But although a lot of people or certainly a number of critical people did speak, a lot of very important people, some of his closest associates refused to. So what does that tell us about commitment to constitutional order in the U.S. in the year 2019? Is that something that worries you?
Noah Feldman: The order itself is in obvious violation of the Constitution. The fact that some of the senior advisors obeyed the order suggests that they were willing to tolerate Trump’s command. Maybe they were afraid of being fired, although he didn’t fire the people that did testify. But in a better world, they would have said “No, this is an unconstitutional order, we’re going to ignore it.” That said, those people work for the president and you can understand their concern that on the one hand, Congress is summoning them to testify and on the other hand the president’s telling them not to appear. In some cases, they go to court just to say ‘Okay what am I supposed to do here? Two different authorities are telling me what to do.’ I think that’s reasonable to do under the circumstances. The real threat is Trump’s refusal of the investigation. There’s only one sanction for that available under the Constitution and that sanction is impeachment and Congress exercised that. The fact of impeachment is the first step in the U.S. System of what a healthy constitutional democracy should do when the president breaks the rules. That leaves a separate question of whether Congress will remove the president, which at the moment looks very unlikely.
Now, with respect to Nancy Pelosi, I actually don’t think she accomplished anything with the delay except to make the process look more partisan than it needed to be. I don’t think it was ultimately a successful strategy. I think there was a misunderstanding thinking that by not announcing the impeachment, it would somehow put pressure on the Senate to make some concessions with respect to the trial. But I think the opposite was the case until the trial was forced to begin, Pelosi’s only leverage was to say ‘I’m not gonna formally begin the process of your trial until you make these concessions.’ When Mitch McConnell, the Senate majority leader, said ‘Okay, we’re not doing that,’ she had no cards left, so she had to fold.
Soli Özel: Which is very odd, because she’s supposed to be truly a mastermind of the political game and it fact it took her a long, long time to come around to accepting impeachment as a proper step to take. So, how come she made that mistake?
Noah Feldman: I don’t think it was very costly. One can see that it was a relatively low-cost risk she took. So maybe she thought she would give some space for the Senate Democrats to try to negotiate. As I said, I don’t think it was effective but you could also argue that since the time that elapses is only a couple of weeks, no great harm was done. So it was probably a low-cost undertaking and she’s a good enough politician to gauge the value of that.
Soli Özel: Okay, now going back to the recent article you published in the New York Review of Books. You end your article basically acknowledging that the chances of the Senate actually ‘sentencing’ the president are low. Let’s say it’s highly unlikely. You come up with three possible meanings for that and the third one is actually pretty worrisome. That is, it’s basically ‘Everybody knows that the president has done something that was impeachable and the constitutional process was taken over by political considerations and much more importantly, the real owners of the system, the American people basically shrugged.’ What does this say to us about the health of the American democracy in 2020?
Noah Feldman: I think this is the best interpretation of the situation, and there are other interpretations. One possibility is that some congressmen will think that there’s not sufficient evidence that Trump really did this. If that happens, that’s unfortunate because it means that people are ignoring the facts, but it’s not as bad as if congressmen say ‘Well, you know what, everyone knows this happened, we know this happened and we know that it’s impeachable and wrong and we just don’t care, we’ve gotten over it.’ I think that’s deeply threatening to American constitutional democracy because it would send a message to not only this president but future presidents that they can directly flout the norms that govern democratic rule and get away with it because the public just doesn’t care enough. All democracy ultimately depends on the political virtue of the people. That’s a very old-fashioned thing to say but it’s always been a truth of democracy. Democracy is based on the rule of the people.
Soli Özel: In fact, you end your article with a federalist paper.
Noah Feldman: At one of the ratifying conventions, not the one where they wrote it, Madison actually said explicitly that you can’t expect that the republic can survive if the people don’t have virtue in them. That’s a deep truth about democracy. I concluded my piece by saying ‘That’s a terrible thing to contemplate, but it’s not unprecedented in history.’ There are places where the public says ‘We don’t care enough about democracy to preserve it’ and when that happens, the forces that would like to subvert democracy have the capacity of winning. So I don’t want to be so alarmist as to say that the next day after Trump is cleared that democracy will be completely dead. There’ll still be an election but as we all know, democracies are not lost typically in one moment. They’re lost slowly and gradually through a series of steps that erode institutional capacity and that erode public and elite commitments to the system. I think if Trump is not removed on the grounds that it’s all fine, that would be a bad step in that direction.
Soli Özel: How much does this worry you?
Noah Feldman: It worries me hugely. Hypocrisy could actually be of help here. If Republicans say ‘Of course we think it would be completely impeachable for the president to ask a foreign leader to help in getting elected but we don’t believe that’s what happened here,’ you and I won’t believe that’s what they mean. But it would be better for democratic institutional preservation if they did it hypocritically than if they did it openly.
Soli Özel: How does this compare to Watergate?
Noah Feldman: It’s remarkably different because in Watergate, as the public gradually discovered that Richard Nixon had used the Office of the Presidency to cheat in his re-election by presiding over a campaign which sent burglars into the Democratic National Convention’s headquarters and then covering it up, Republicans turned against the president. The crucial moment in that process was when in the House Judiciary Committee, some Republicans said ‘It breaks my heart but I will vote to impeach this president.’ When that happened, the president resigned. So what you had there was as the evidence came out, Republicans showed tremendous political courage by standing up and saying ‘This is not okay.’ Politicians are always politicians, so you ask yourself ‘Why did they do that?’ A large part of the answer was they believed that the public, the voters, would punish them at the polls.
Soli Özel: Was there any evidence that this theory was justified? At the time?
Noah Feldman: Polling wasn’t near as sophisticated in the early 70s and there wasn’t time for polling in a lot of cases. I think they were going intuitively based on knowing their voters. I also suspect they were looking at their own response. Here is the president on tape, essentially saying that he knew about this cover-up. Whereas here, the transcript of Trump’s call was released, it was released in a moment, polling is more sophisticated and Trump’s base stayed with him.
Soli Özel: What does that say to us about today’s Republican Party as opposed to the Republican Party of the 70s?
Noah Feldman: It certainly tells us that the base that supports the president is willing to tolerate almost anything, any conduct from him, and that the party feels itself captured by the president. There are two elements here. First the question of the base and that many people’ve observed the mass media has a larger impact than it did at the time. A second is there’s a story here about the weakening of the institution of the political party in the United States, as elsewhere. It used to be that the political party had some independence from its president. To that extent, the party might say ‘Look, we’re going to give up on this president. We might even lose the next election but in the long run, it’s in the interest of the party for us to be seen as legitimate actors.’ In fact, this has worked for the Republicans in the past. After they effectively removed Nixon, the Democrats got only one term in offive, Jimmy Carter, and then the Republicans won again for 12 years in a row. They made a bet, and it was the right calculus.
Today, parties are so weakened that most Republicans seem to think that Donald Trump is the key to their victory and that they can’t live without him and that if they were to knock down Trump, they wouldn’t have a shot at re-election for maybe a long time. There’s a lot of reasons for that and the weakening of the party is only one of them. There’s also the changing demographics, there’s the thought that Trump is a once-in-a-lifetime politician that activated the ‘new Republicans’ or at least more of those Republican voters, so there are many elements. But it’s striking that Trump’s tranformed the party, he’s beaten the party. Another example of this is his policies. Take free trade… the Republican party has been committed to free trade for more than a century. Yet, Trump is obviously the opposite of that and the party’s basically rolled over and taken it. In the earlier era, the party would have pushed back, either in the primaries or when he’s president… But the party’s so weak, it couldn’t do that. Presidentialism needs to be checked. The president and the presidential system always needs checking. The party, even the president’s own party, was historically an important check on the president and that’s gone.
Soli Özel: So how did the U.S. system come to a position where the president holds so much power whereas the Constitution gives so much of the power to Congress? How do you view this? Both as a professor of law and a citizen.
Noah Feldman: They’re two different stories and they converged. One is the story of the expansion of presidential power as the United States shifted from what it was first, a tiny little republic on the East Coast, to then continental force, and ultimately into a global empire. In that process, the presidency got stronger and stronger. If the founders would have been warned about this, which they were by some, they would have said ‘Well that’s what happens when you become Rome.’ They imagined they were founding the Roman Republic and they feared to become the Roman Empire. That’s exactly what happened. As in Rome, you had a powerful legislature and once it became an empire, the emperor became powerful. So that’s the first story: The expansion of the U.S.’ into a global empire and then to a super-power.
The simultaneous story is the global story of the decline of political parties as organic institutions that were connected to voters through a series of thick institutional connections, mostly on the global level. Both the size of the U.S. And also the rise of television and then subsequently of the Internet,all of these forms of communication have weakened the political party as a crucial institution that used to intermediate between the individual and the state. The hollowing out of the political parties is part of this.
So you have both of these, the president becomes more powerful on the global scene, the party gets weaker and weaker, and sure enough, what you see is a president who can exercise dominant power on his party.
Soli Özel: But most polls also indicate that the commitment to democracy in the public is much lower today than it was 40 years ago, 30 years ago. Does this not have anything to do with the fact that the political parties are a bit nonchalant to say the least about how the Constitution process is respected or not?
Noah Feldman: Yes. There’s lots of different opinions about why that’s happened. One theory is that we became too dependant of the judiciary to solve our constitutional problems. This ultimately told citizens they don’t have to rely on their elected representatives to defend the Constitution. Of course you should though, in a democracy you have to rely on elected representatives because they speak for the people, but the Constitutional Court doesn’t speak for the people.
A deeper part of the story is, as people felt more and more disconnected from their elected leaders, democracy itself seemed to be less and less significant to people’s lives. The number of Americans who don’t know the name of their representative in Congress is shockingly high. The sense that ordinary people have of disconnection causes them to think that democracy is not that important or relevant to their lives. A really important feature was the misconception people had when the Cold War ended that democracy had defeated communism. But that was not the case. Capitalism had defeated communism. You can see that from the fact that China became a capitalist country. But democracy did not win that battle, it was just along for the ride with capitalism. So globally, we see a receding set of interests in democracy. People look around the world, they see the rise of China, they see that countries can do well without democracy. They fail to realize that the justification for democracy isn’t that it makes you rich, it’s that it makes you free. And you have to fight for that. It’s a normative value but everyone values it equally.
Soli Özel: This will be my last point. I’ll try to draw you toward a more philosophical position. Freedom was basically the rallying cry of the market-oriented people. They were going to take ‘liberté, fraternité, egalité’ and then once the principal of freedom was appropriated by the market-oriented, it lost its political significance, in my judgement. So what I think has happened as a result of the last 40 years of a very market-fundamentalist policies is that equality has become the rallying cry. What’s interesting for me is that the rallying cry that equality ought to have been an enforcer of democratic demands, but it’s gone hand-in-hand with the erosion of democratic legitimacy and the demand for more democracy.
Noah Feldman: I think it’s very complicated. In the American context, the call for equality comes from the liberals as they see it as an argument directed at the courts rather than at legislature. I think that’s actually been part of the problem. American liberals came to rely too much on the courts and not enough on the legislature.
With respect to income equality, in the U.S. there’s never been a strong tradition or argument for income equality. Even in the period where the U.S. Had very very high marginal tax rates on the rich, it was never justified by an equality rationale. It was just a normal practice driven by legislative interests. The state was looking for money. As those marginal tax rates on the high end started to come down, no one really objected in the U.S. Because traiditonally, nobody cared that the wealthy did as long as they themselves are doing well.
In the U.S. the idea that the government should not interfere with your liberty has traditionally been understood not in terms of economic liberty but much more in terms of your individual freedoms. Your capacity to say what you want, live how you want and your capacity to be left alone by the government. I think people are so accustomed to the good state of liberty they feel that they’ve forgotten that liberty can be eroded. That’s really what it is. It’s a function of success. Most Americans don’t feel un-free so they’ve forgotten that part of freedom is to participate in self-determination. There’s a famous distinction between the liberty of the ancients, which is the liberty to make your own government and participate in it, and the liberty of the moderns, which is the freedom to be left alone by the government. We’ve lost the first kind of liberty to a great extent and that’s what’s so worrisome. If Donald Trump was violating the rights of American citizens in a more dramatic way, there would be more reaction against it.
Soli Özel: You don’t think he is?
Noah Feldman: I don’t think that’s the primary goal of his policies. I think he’s discriminated to a tremendous extent against immigrants and against people at the border. But he’s been pretty careful to avoid limiting the civil liberties of U.S. ctizens. If he did more of that, people would notice and they’d be more upset because then it would be their individualism at stake.
Soli Özel: Finally, if Senate doesn’t have majority of the votes to remove him, what does that mean for his re-election?
Noah Feldman: I don’t think it hurts him. It may help him because his base may say ‘Ah we need to make a point.’ More likely, it’ll be a wash, neither hurting nor helping him. If he’s re-elected, which is by no means a foregone conclusion but it’s a possibility, if Trump is re-elected, it sends a message that the U.S. system is currently accepting of someone who erodes the structure of democracy on multiple fronts. That’s deeply frightening and worrisome for the long-term future of democracy in the United States.
As for the Senate, I am saddened especially by two things; the unprecedented refusal to call relevant witnesses and the argument that even if Trump did what he was accused of doing, those acts were not impeachable. The latter argument seriously weakens impeachment as a constitutional remedy.