Friday, November 22, 2019

Ivanka Trump's Fake Tocqueville Quote on Impeachment

Last night, Ivanka Trump--that distinguished scholar of American political thought and constitutional law--has posted on Twitter this quotation from Alexis de Tocqueville in 1835: "A decline of public morals in the United States would probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office."

If you go to the section on impeachment in Tocqueville's Democracy in America (Part I, chapter 7: "Political Jurisdiction in the United States"), you will not find this quotation.  Apparently, Ivanka took this fake Tocqueville quotation from her reading of John Innes Clark Hare's 1889 book American Constitutional Law, vol. 1, p. 21.  If you look at this page, you will see that Hare is paraphrasing Tocqueville, which Ivanka assumed to be a direct quotation.  Tocqueville, however, does not exactly say this.  He does say that the impeachment power of the national Congress and of the state legislatures is easy to abuse; and so "once the American republics begin to degenerate," one might expect to see an increase in the use of the impeachment power.  That might support what Ivanka Trump is implying--that it's a sign of America's degeneration that her father is being impeached unfairly by his political opponents.

But if you read the page in Hare's book, you will see a thoughtful observation about the dilemma the constitutional framers faced in formulating the impeachment power that does not necessarily support Ivanka's claim.  The dilemma was this.  On the one side, impeachment seemed necessary as a congressional check on presidents who abuse their powers.  On the other side, the Congress could abuse this power of impeachment "to overawe the executive by the menace of an impeachment."

Hare thought that if Andrew Johnson in 1868 had been convicted by the Senate through the power of the Radical Republicans, this could have been "the first step in the downward path" towards turning the impeachment power into a partisan political weapon for making the president subordinate to the Congress.  This was avoided because a "few steadfast men in the Senate"--a few Republican Senators--voted against conviction.

This illustrated how one way to guard against the congressional abuse of the impeachment power, Hare indicated, was the requirement for a 2/3 supermajority in the Senate to convict and remove the president from office.  He explained: "If less than one third of the senators were of the same party with the accused, he could not hope for favor, and would be fortunate if he received bare justice; if more, it might be difficult to obtain a condemnation, even on the clearest proof of guilt."

Ivanka does not quote this passage, because it works against her argument.  Today, far more than one third of the Senators are Trump Republicans, and therefore "it might be difficult to obtain a condemnation, even on the clearest proof of guilt."  Mitch McConnell and other Senate Republicans have promised this.

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