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Politics & Government

Evaluating The Effectiveness Of Impeachment

NOEL KING, HOST:

Lawmakers will come back to Washington, D.C., next week, and the next phase of the impeachment process against President Trump will start. Senators are still debating how the trial in the Senate will work. And since we don't know, it makes some sense to look back at the trial of President Clinton 21 years ago. Here's Clinton talking just after his Senate trial.

(SOUNDBITE OF ARCHIVED RECORDING)

BILL CLINTON: I want to say again to the American people how profoundly sorry I am for what I said and did to trigger these events and the great burden they have imposed on the Congress and on the American people.

KING: Clinton, of course, was impeached but acquitted, so was President Andrew Johnson, and it's likely to be the same with President Trump. Constitutional scholar Kim Wehle wrote an essay in The Atlantic about why this matters. She's in studio with us. Good morning.

KIM WEHLE: Good morning.

KING: So you have raised such an interesting question - is impeachment really a check on presidential power if a president has never been removed from office?

WEHLE: Well, it's really sort of a matter of human nature. If we are concerned about consequences for certain behavior, then we check that behavior. So in this moment, it still exists as a means of basically conveying to future presidents, listen - there's a red line, and if you cross that red line, there'll be consequences to ensure that the president stays accountable to the people and not to him or herself.

KING: You are concerned about what happens if there are not consequences, and you're raising another really interesting point. You're saying the important thing is that Bill Clinton and Donald Trump were impeached for different reasons. Clinton was impeached for lying under oath, perjury, which is a crime, and President Trump for abuse of power and obstruction of Congress, which at the moment, no one is calling a crime, right?

WEHLE: Right. So President Clinton - some of the critiques of that impeachment process were that what he did was not about abusing his office. To the extent to which he sort of took advantage of a young intern, that is an abuse of office, but in the same way that any sort of senior person in an organization. What - but he was acquitted, notwithstanding that he was basically charged with perjury, which is a crime in the criminal justice system. For President Trump, we have an abuse of office, but we don't have him charged in the articles of impeachment with a crime.

So they're kind of different sides of the same coin. If you cannot - you commit a crime, no abuse of office, you're acquitted. You don't commit a crime or at least charged with a crime, and there is an abuse of office, and you're acquitted, the question becomes, what's left of impeachment? What in the future is impeachable?

KING: May I ask you what you think the answer to that question might be?

WEHLE: You know, arguably, it's something like bribery or treason because those are specifically listed in the Constitution. It's difficult to imagine even in this moment the Republican Congress convicting President Trump had he been actually impeached for bribery, and of course, obstruction of Congress itself is a crime.

So I think going forward that's a question for Americans. If because of the DOJ memo that you can't indict a sitting president, the judicial branch is not available to base as a check on the presidency. Impeachment's the only thing left, other than an election. If impeachment is basically treated as a nothing burger because nothing is impeachable, then we have an office of the presidency that's really above the rule of law.

KING: And then what do we do?

WEHLE: You know, I...

KING: Amend the Constitution, is my only guess?

WEHLE: Well, amending the Constitution - the Constitution does have an impeachment clause. But, you know, like anything, if you don't enforce a rule - if there's a ban on speeding, but you - but there's no consequences for speeding, people will speed. And we see this with the Constitution. We, as Americans, need to understand if parts of what it exists are not enforced, we can take out our black marker and cross it out. And I think impeachment in this moment is one of those questions.

Future presidents could say, eh, impeachment doesn't really mean anything. Nothing's really impeachable anymore. It's so political. And that, we have to understand, means whoever's in that office, regardless of party, has more power, and ultimately, the framers understood it's human nature to abuse power if you have it.

KING: One major argument against both the impeachment of President Clinton and also of President Trump was that it's just too partisan. This is what people said back then; they're saying it now. Do you think impeachment as a process is inherently flawed because it is political?

WEHLE: In this moment, it is - I don't think the process is flawed, but the way it's playing out is flawed because we've got the Senate majority leader saying, listen - I'm in lockstep with the presidency. We don't have Republicans in this moment in Congress committing to independent, sort of measured, thoughtful oversight of what's happening in the office of the presidency.

To your prior question, I think one possibility would be to create another means of checking the presidency through the criminal justice process - basically, passing a law that would override the DOJ internal memo saying you can't prosecute a sitting president. That would probably be challenged as unconstitutional I think, in this moment, the rationale for why you can't prosecute a sitting president doesn't really hold water. But, of course, for the same reasons this sort of partisan Congress won't impeach this particular man, it's possible to imagine that there'd be legislation that would come through both Houses that would actually operate as a check going forward on the presidency.

And with an accountable presidency, we all are safer. We - every American, regardless of political party, needs to make sure that there are tickets issued for speeding in the White House because that office just has so much power.

KING: You are a constitutional scholar. In the couple seconds we have left - room for optimism, reason for optimism?

WEHLE: Well, reason for optimism - if we can see, you know, in the Senate trial, a thoughtful, measured process that's overseen by the Supreme Court justice, the chief, I think that will make it more meaningful. But we'll just have to see. I wish I were more optimistic, to be quite honest.

KING: Kim Wehle, constitutional scholar. Thank you.

WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.