1.The impeachment saga really reminds me of the Merrick Garland nomination. They both expose how what seem like hard limits in our governing system often are actually soft limits – or, rather, aren’t limits at all (a thread)
2.In the case of Garland, McConnell and Senate Rs grasped that there were no legal requirements for them to vote on Garland, or even hold hearings. They acted accordingly.
3. Reasonable people can argue that they SHOULD have handled it differently. But because they were not REQUIRED to handle it differently, they did not.
4. Impeachment exposes something similar, and it’s why I find the legal arguments about what is or is not impeachable ultimately beside the point
5. It is up to the House, on a simple majority vote, whether to impeach the president.
6. In the Senate, a two-thirds supermajority is required to convict and remove.
7. The Constitution leaves it up to Congress to determine what “high crimes and misdemeanors” actually means
8. There is no legal backstop to the process. The president has no one to appeal removal to.
9. Other trappings of the “trial” are just for show. That includes the oaths the senators take at the start of the process, as best as I can tell.
10. For instance, here’s this from Lawrence Tribe: “There really is no mechanism for enforcing the oath that senators take before an impeachment trial.” newsweek.com/trump-impeachm…
11. Calling what is going on a trial is technically correct but practically unhelpful to understanding what is actually going on. The senators take on the guise of jurors, but there is no enforcement power to make them act as jurors
12. There are PRACTICAL limits to impeachment, of course. Namely, the two-thirds requirement for Senate conviction is a very high bar to clear.
13. Public opinion hypothetically imposes political limits on politically-minded people. But again, public opinion is not a hard guardrail
14. If the will to remove exists in the Senate, what limit is there to its power to remove? I would argue none.
15. How is this comparable to Garland? Both exercises expose how Senate functions that may appear to have legal requirements actually do not.
16. Of course, participants and observers can and should argue about whether some activity by the president merits impeachment. But it’s ultimately a judgment call by the House and Senate. /end
