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Explaining the Constitutional Crisis Dodge

Be wary of political parties' dismissal of impeachment as the invocation of a constitutional crisis.
President Bill Clinton.

President Bill Clinton.

Democrats wondering why Republicans stick with Donald Trump despite his various transgressions should really listen to season two of the Slow Burn podcast. It paints a picture of partisans working to defend a leader whose actions they despise, simply to deny the other side a victory.

That's not to say, one way or another, whether the actions for which Bill Clinton was impeached are on a similar moral or legal level to the various infractions of which Trump has been accused. But the parallels in the behavior of the regime supporters are pretty striking, especially in the dismissal of any remedies to presidential transgressions as invocations of a "constitutional crisis."

Episode seven of this season includes segments of a fascinating interview with Donna Shalala, who served under Clinton as secretary of health and human services. Shalala was one of the women in Clinton's cabinet who spoke fiercely in his defense when allegations of his affair with Monica Lewinsky first surfaced, and then had to backtrack when Clinton changed his denial to an admission. She was annoyed, not just because she defended a lie, but because Clinton was doing the same things she'd fired faculty for in her previous role as a university chancellor:

I was just pissed off, I was just irritated. It really had to do with who I was and where I had come from. In the academy it's the worst thing we deal with and we deal with it all the time, as you well know. Particularly graduate students.... I was irritated that I had defended him publicly, that he had told me he hadn't done it and told everyone else, and now we were facing it as a cabinet.

There was a crisis. A couple of us talked about whether we should resign over this. I think we actually all decided the same thing, that we should not turn this into a constitutional crisis.... I talked to three other cabinet members whom I don't want to name, and all of them were feeling the same way I was, and that is, This is disgusting but we've got to keep going. [emphasis added]

Compare this with the language used by the Trump administration official who penned the anonymous op-ed in the New York Times last month:

Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until—one way or another—it's over.

There are a few points to be gleaned from these two examples. First, they reveal a similar attitude of resignation: "This is the team we've signed up for, and we're going to defend, right or wrong." They also both show a party's commitment to obstructing the removal of their president—even though the cost of removal would be relatively modest from a policy perspective. That is, if Clinton had been forced from office, Al Gore would have been president, likely pushing almost identical policies and keeping much of the cabinet intact. A Mike Pence administration would probably differ from a Trump one in a number of important ways, but would likely press similar policies. Yet these loyalists just wanted to deny the other side anything that might be conceived as a win.

It's also important to note that following a procedure delineated in the Constitution is by definition not a constitutional crisis. It may be unlikely to succeed—no president has ever been removed via the high bar of a two-thirds Senate vote, and the Twenty-Fifth Amendment is actually quite a mess and not a very practical method of removing a conscious incumbent—but it's wrong to dismiss these procedures as some sort of crisis.

There's a better case to be made that the deliberate neglect of a constitutional guideline—like Clinton's defenders did in 1999, and like the anonymous Times op-ed writer suggests in his/her piece—would itself amount to a constitutional crisis.

For all the talk about how it's wrong for Congress to overturn the will of the voters, the Constitution provides several mechanisms for doing precisely that. The president's supporters forestalling those mechanisms because it would cause a constitutional crisis are, in fact, creating a constitutional crisis.