I don’t have a view, myself, about whether impeaching Donald Trump (hereafter, CHEB, the Current Head of the Executive Branch) is a good idea or not. Speaker of the House Nancy Pelosi said, when she authorized the first tentative step toward impeachment, “No man is above the law.” I appreciate the sentiment, but I think we would have to call it an aspirational statement.

No one is above the law

Here’s why I say that. We were in Scotland recently and while I was there, I learned a good deal more than I had ever wanted to know about clan governance. Clans cohere around the leader. Until, of course, someone kills him and takes over, at which point they cohere around the new leader. “The law of the clan” is a fiction for the same reason the “law of the mob” was fiction in Chicago when it was being run by Al Capone. These are “leader-driven” not “law-driven” societies.

I think we might be better off thinking of some such notion as “outside the law”  than “above the law.” These leaders are people to whom the law does not pertain. These leaders are not, in the eyes of their respective clans, “illegal;” they are a-legal.” That is why I referred to Speaker Pelosi’s standard—no man is above the law—as aspirational.

It is a commonplace that the U. S. is divided into “tribes” [1] but the implications of that  observation, which is correct, are not always made clear. When you go to a collection of tribes and ask whether they want to follow their leader or to submit to someone’s notion of “law and order,” they will choose the leader. It is unnatural—I use that word with care—to prefer to be governed by an abstract set of norms than by a person you trust. There are some strata in American society who have achieved that unnatural standard and maintained it across several eras of American life, but the strata are thin and few and they are routinely dismissed by most of the population. The U. S. is more tribal now than it has been since the decade leading up to the Civil War. [2]

In that sense, the tribalism of the Congress, which is more formal, simply lags behind the tribalism of the electorate. The Constitution, in specifying that the President may be impeached for “high crimes and misdemeanors” refused to specify just what actions could be called that and tossed the ball over to the political process. That is what the Framers intended.

As a result, the House of Representatives, which has the power to impeach, may call anything it wants “high crimes and misdemeanors.” It is true that CHEB has broken new ground in the areas of obstruction of justice, of collusion with foreign leaders, and in treason, but he need not have done all that to be impeached. Just as “the Constitution says what the Supreme Court says it says,” so “high crimes and misdemeanors” are what the House says they are. [3] The House could impeach CHEB for having an astounding sequence of bad hair days provided that they called the offense, “high crimes and misdemeanors.”

Is it a good idea?

Some people say we really no longer have a choice. The longer we go on saying nothing, the more complicit we are in his crimes. In this view, it is courageous and moral to point to the crimes and call for impeachment and this is the case NO MATTER WHAT THE OUTCOME OF THOSE ACTIONS WILL BE. Sorry for the shouting. The case here is that when we consent to this kind of behavior on the part of our elected leader, we have lost a moral battle we will never be able to win back. This is, in the eyes of people who hold this perspective, a “crossing the Rubicon” sort of moment. [4]

They may be right. It may be that in allowing the President to do unprecedentedly scandalous things and to be approved of for them, we have finally ceded the high ground and will never be able to get it back. On the other hand “the moral high ground” requires a law and order perspective and the liberals are very nearly (not quite) as tribal as the Trump voters. In a nation as divided as ours “the moral high ground” is just a rhetorical tool of one of the tribes. It is not, any longer, a way of mediating among the tribes.

If that is what the “moral culture” critics are afraid of losing, it is already lost.

Other people say we do have a choice. These are the “keep your eye on the ball” people, of whom, I should pause to say, I am one. I want Donald Trump out of office; I want a Democratic House and Senate; I want a fair electoral system; I want aggressive conservation measures; I want decent sustainable treatment of immigrants. I want a lot of other things too and I want to take a position on impeachment that maximizes my chances of getting as many of those as I can. If impeachment proceedings help, fine. If not, fine. Keep your eye on the ball [5]

CHEB is not going to be convicted by the Senate no matter how high the impeachment count gets in the House. He is not going to be removed from office that way. He can, of course, be voted out of office, which I think is the surest way to do it and the best way to pursue the collection of goals I specified above. I have always felt that Speaker Pelosi agreed with me on that, but she has suddenly changed and I don’t really understand why. I am quite confident that she has not gone over to the “moral critique” camp. She is still a numbers counter. What does she know that I don’t? It makes me less sure that relying on the 2020 election results is the best way to get all the things I want.

Finally, some people argue that a premature impeachment—an impeachment with no likely conviction—will still weaken CHEB. All his dirty laundry hung out in public view and producing public disgust. I don’t think so. At a certain point, you have to decide whether the dirtiness of the laundry is worse or the mean-spiritedness of the people hanging it out. We (our tribe) keep pointing to how dirty the laundry is. They (the other tribe) keep pointing to the distorted and shriveled morality of the people hanging the laundry out. Oh…they are hypocrites too, of course.

That’s the way if worked for Bill Clinton, if you recall. The more grievous the charges the Republicans brought, the more they seemed like bullies who might turn on people like me when they were done with poor ol’ Bill, who had, after all, only showed his common humanity. Clinton’s popularity went up sharply as a result of that impeachment and the Republicans’ went sharply down.

I don’t want that to happen to me and I don’t want it to happen to us.

[1] I am going to shift now to talking about tribes rather than clans. It sounds more contemporary, for one thing, and it offers a useable adjectival form, “tribal.”
[2] The standard that political scientist Robert A. Dahl used in measuring the degree of division in the U. S. House was ingenious: how many things do you need to know about a Representative to correctly predict his vote? When it got down to one—you need to know only one thing (region, in the case of the Civil War) then you are justified in calling the nation “divided.”
[3] There is the practical matter of living in glass houses and throwing stones, but that is practical only in the long term and we are not living in a “long term” era.
[4] Joseph N. Welch is celebrated by liberals for saying to Sen. Joseph McCarthy, “At long last, sir, have you left no sense of decency,” but “at long last” points to how very long he waited to say that.
[5] I realize I have defined “the ball” as the political and policy outcomes most important to me, but I would be willing to share the agenda space with others.