An Unimpeachable Democracy
Here's one of my favorite jokes, told as a couple of riddles:
Q: What's the difference between a plum and an elephant?
A: A plum is purple; an elephant isn't.
Q: What's the same about a plum and an elephant?
A: They're both purple . . . except for the elephant.
The recent events in South Korea (which I have previously discussed on Verdict and here on the blog) lead me to the following variation:
Q: What's the same about South Korea and the United States?
A: They're both reasonably well functioning constitutional democracies . . . except for the United States.
Judged by the often pessimistic standards of this blog, that punchline might count as optimism. After all, in asserting (by negative implication) that the United States is not a well functioning democracy, I leave open the possibility that our nation is at least a democracy, albeit a poorly functioning one. And indeed, that was my assessment as of 2021, when I described the U.S. as a "defective democracy" in an essay for the Virginia Journal of International Law. Events since then certainly have not remedied the chief defects of U.S. democracy, but for present purposes I'll assume that the U.S. remains a democracy of some sort.
The question I wish to explore today is whether the U.S. Constitution's approach to impeachment is, all things considered, better or worse than the approach of the constitution of South Korea, where the National Assembly has just succeeded (after failing a week earlier) in impeaching President Yoon Suk Yeol for his unconstitutional declaration of martial law. I shall first assess formalities and then the law in action.
In the U.S., presidents (and other government officers, but I'll focus on presidents) can be impeached by a majority vote of the House and then a 2/3 vote of the Senate. Under the Supreme Court's 1993 ruling in Nixon v. United States (involving a judge named Walter Nixon, no relation to former President Richard Nixon), the courts cannot review a Senate decision to convict and remove a government official, including the president. Chief Justice Rehnquist's opinion for the Court stressed that allowing judicial review of impeachment rulings would be especially problematic in cases of presidential impeachments, because it would create serious uncertainty during the pendency of such review. He wrote:
The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.
Article 65(2) of the South Korean constitution requires a two-thirds majority of the National Assembly to impeach the president. That two-thirds threshold looks similar to the required Senate vote in the U.S., but in an important respect it differs. Impeachment by the National Assembly is not the last word. Article 111 requires that the Constitution Court adjudicate impeachments. A successful presidential impeachment takes a vote of at least six justices of that court. Three of the nine seats on the Constitution Court are currently vacant, so unless the National Assembly can fill one or more of them before the Court adjudicates the impeachment, unanimity will be required.
To Americans familiar with the SCOTUS ruling in the Judge Nixon case, the South Korean approach looks like a messy process, although not so much because of judicial involvement. The Constitution Court adjudication is part of the impeachment process itself, rather than a form of subsequent review. The messiness arises because Article 65(3) suspends the president and any other impeached officials from their jobs after the impeachment by the National Assembly, pending either removal or reinstatement after Constitution Court adjudication. That could result in rapid policy shifts back and forth and possibly back again when, as now, the Prime Minister--who serves as interim president pending adjudication--is of a different party from the president.
Accordingly, as a formal matter, the South Korean process sets both a higher bar for impeachment--two-thirds or greater thresholds in two bodies, not one--and is messier than the U.S. process.
That's on paper. In practice, impeachment in the United States has become an almost unusable tool. In both the House and Senate, in each of the last three presidential impeachments (Clinton, Trump, and Trump again), votes were cast on close to party lines. Given the near-impossibility of either party garnering a two-thirds majority in the foreseeable future, party-line or near-party-line votes in the Senate ensure that House impeachment--even when justified by the facts and law--is a merely symbolic act.
But will we inevitably see party-line voting in U.S. impeachments? Enough Republicans in Congress were prepared to vote to impeach and remove President Nixon to persuade him to resign. What has changed?
The obvious answer is political polarization, but that answer may be too quick. There was at least a plausible argument that Bill Clinton's conduct was deplorable but not impeachable. A critical mass of Senate Democrats might have voted to remove Clinton if his actions had been still more heinous and more official. Even in the current environment, it is possible to imagine congressional Democrats voting to impeach a Democratic president who engaged the kind of conduct that led to Trump's second impeachment (for his role in fomenting and, especially, not intervening immediately to stop the Jan. 6, 2021 insurrection). By contrast, it's hard to imagine Senate Republicans voting on genuine principle to remove Trump or almost any Republican president.
To be sure, in 2021, many Senate Republicans said they had nonpartisan grounds for voting to acquit Trump: by far the most common explanation was that the Senate cannot convict a president who is no longer in office. Having reviewed the historical materials and the relevant arguments at the time, I thought that explanation quite weak, but that's not the main reason why I believe the too-late-to-convict argument was pretextual. I believe that because I remember the sequence of events: in the immediate aftermath of the insurrection, numerous Republicans condemned Trump; within a few weeks, once it became clear that the base was sticking with Trump, those Republicans changed their tune, sometimes making the pilgrimage to Mar-a-Lago to bend the knee to their once and future king.
Perhaps a critical mass of Senate Republicans would actually vote to convict an impeached Republican president, but that seems possible only if that president had not only engaged in heinous behavior but was also extremely unpopular with voters, including Republican base voters.
Seen through the lens of political interest that the American experience suggests, the votes cast for the impeachment of President Yoon by members of his own party do not necessarily look like profiles in courage, where principle comes before party. President Yoon was very unpopular before he declared martial law; his approval rating now is well under 20%. It does not take a great deal of courage for members of his People Power Party to cut him loose under these circumstances. Accordingly, we shouldn't necessarily conclude that South Korean legislators are more principled than American ones.
If neither the different formal structures nor the extent to which legislators adhere to principle explains the difference between South Korea and the United States, what does? The pretty clear answer is the People. South Korea's would-be military dictator is wildly unpopular, thus liberating members of his own party to turn against him. By contrast, and thanks to an almost-majority of U.S. voters, our would-be military dictator will be inaugurated for a second term in just over a month.