Stop the Impeachment-Polling Madness
In a representative democracy, the will of the people always counts. Though elected officials are not obliged to vote in accordance with the will of their constituents, they are obliged to elicit and understand the opinions and circumstances of those whose best interest they serve.
As for whether that necessitates incessant public-opinion polls on the president’s impeachment and removal—that's a stretch.In his now-classic impeachment handbook, published just months before President Richard Nixon's resignation in 1974, the late legal scholar Charles Black decried opinion polls on presidential guilt or innocence prior to the Senate vote as an “unspeakable indecency.” The technology of the time served as the starting point of Black’s anxiety: He worried that "continual nationwide television exposure" would create "public pressure for some given result." In Black’s view, periodically polling the public on whether the president should be impeached and removed could only serve to heighten that pressure, and was a practice no more justifiable, legally speaking, than polling the public to decide whether to indict or convict a criminal defendant.
[Benjamin Wittes and Quinta Jurecic: The utter ridiculousness of the U.S. Senate]Two impeachments and an internet later, impeachment polls have become, to appropriate a phrase from the novelist Don DeLillo, “a form of cultural hysteria.” DeLillo was referring to lists, but polls are seductive and reductive in many of the same ways. Today’s impeachment polls are a special dubious subset of the polling genre, owing to their sheer number, questionable purpose, and potential sway over Senate votes. They are multiple choice and minimal fuss, facilitating the distillation of partisan chaos and factual complexity into a tweet and a punch line. They are updated regularly and amalgamated daily, offering a nation of smartphone obsessives and Fitbit users the specious knowledge that comes of real-time data. Thanks to his colorful tweets, the American public knows President Trump is tracking the polls, too, and that, like the rest of the country, he swings between loving them and grieving them. Watching him watch them has become an essential part of this hollow collective ritual, of repeatedly taking the temperature of the body politic without checking for a pulse.The point is not to dismiss public-opinion polling generally or data science specifically, or to rehash what Time magazine wearily described—in 1948—as “the debate over whether public-opinion polls are good or bad for a democracy.” Nor is it to deny that impeachment polling can yield some interesting insights. For example, a Quinnipiac poll released earlier this month showed that although only 7 percent of Republicans approved of the House’s vote to impeach Trump, 39 percent would like to see testimony from John Bolton, Trump’s former national security adviser. And this was almost two weeks before The New York Times reported that Bolton’s forthcoming book says Trump explicitly described his desire to withhold aid to Ukraine unless the country investigated his political rivals. As a point of comparison, 91 percent of Democrats both approved of Trump’s impeachment and want to see Bolton testify.But an overemphasis on polling data, as Black’s warning suggested, is a problem to watch out for in an impeachment trial, because polls are not designed to merely measure the public's views on important issues. They also are intended to amplify them. And for a couple reasons, the overemphasis may prove a particularly pointed problem for the trial that is now unfolding.For one thing, the timing of Trump’s impeachment and trial has heightened the perceived need for polling data; how the public feels about his removal is an unavoidable question for the purposes of assessing the Republican Party’s chances of success in November. Although commentators like to emphasize that Trump’s removal is more popular than President Richard Nixon’s at the height of Watergate, targeted polls spotlight the preferences that matter: They belong to voters in battleground states like Michigan, Pennsylvania, and Wisconsin. This conflation of presidential ejection and election, combined with the frequency and granularity of modern polling, complicates and exacerbates the electoral pressures that Black feared would influence Senate votes.[Greg Weiner: Due-process rights don’t apply in an impeachment trial]A second, deeper dynamic threatens to give impeachment polling data undue significance. As the country moves through the first impeachment trial of the Twitter era, how the American public perceives the proceedings has become its own subject of intense scrutiny. This is in part because of the concern that the technological environment that shaped the 2016 presidential election—echo chambers, Russian trolls, fake news—will prove similarly divisive and thus damaging to the national psyche as it processes Congress’s approach to presidential removal.One way to mitigate this problem, at least in theory, is to demand consensus—that’s consensus not only among the senators charged with determining whether President Trump committed an impeachable offense, but also among the public. To push this point, prior to the House vote, conservative commentators seized on current Judiciary Committee Chair Jerrold Nadler’s warning back in 1998, during the impeachment of President Bill Clinton, that impeachment requires “a broad consensus of the American public, a broad agreement of almost everybody, that this fellow has got to go because he’s a clear and present danger to our liberty and to our Constitution.”There are at least two ways to read Nadler’s statement. It could be read as a statement about the type of conduct that meets the impeachment threshold. If so, it’s accurate; the president’s conduct must be of the kind that, in Black’s words, “a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy.”The more straightforward reading, however, is that the Senate has no business convicting Trump so long as Americans remain evenly split on his impeachment and removal—as indicated by a Washington Post/ABC News poll in November, a Wall Street Journal/NBC News poll in December, and a NPR/PBS NewsHour/Marist poll earlier this month. And that position finds no support in the Constitution. House Majority Leader Steny Hoyer got it right, constitutionally speaking, as the House’s public hearings got under way back in November: “This is not a question about polls, this is a question about each member deciding about whether or not they believe conduct that clearly has been corroborated by many, many witnesses rises to high crimes and misdemeanors.”
In short, popularity is how presidents get elected (Electoral College distortions aside), but unpopularity is not a legitimate basis for their removal. The Constitution provides that a president may not be impeached and convicted except for in cases of "Treason, Bribery, or other high Crimes and Misdemeanors." This is a legal standard, albeit one whose application the Constitution entrusts to a political branch rather than to the courts. Denying the essentially juridical character of an impeachment trial tends to take the focus off the Senate’s obligation to vote in accordance with its good-faith interpretation of the evidence and the Constitution. It puts the spotlight on national opinion and threatens to legitimize voting in accordance with political expediency.These risks are heightened by the national fixation on polling. The unceasing deluge of polling data has the potential to create confusion about the public’s role in the proceedings. The public is the conscience of any working democracy, and that’s the circumscribed role it gets in an impeachment trial—reminding the Senate to fairly and seriously probe the charges, the facts, the evidence, and the law.When it comes to assessing the president’s unfitness for office, the public is not entitled to what it wants. To the contrary, it is entitled to senators who refuse to calibrate their votes in accordance with the sentiments of their base—and who indeed, if so required by their constitutional mandate, resist them.