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If the Democrats take back the House of Representatives on Election Day, Nancy Pelosi, a Democrat representing San Francisco, will no longer be merely the minority leader. She’ll most likely be voted speaker of the House. That will put her two heartbeats from the presidency. It’s no wonder that Republicans are doing their best to remind undecided and conservative voters about this prospect, for Pelosi is widely known to represent the left wing of her party and a very left-wing city. And it’s also no wonder that Pelosi has publicly and repeatedly told the American public that impeachment proceedings are “off the table.” She pledged as much on “60 Minutes” in October. Although her pre-commitment on impeachment seems politically savvy, it does raise a number of puzzles from the perspective of constitutional law and the theory of political representation. In the final analysis, the potential legal problems with her “pledge” are less troublesome than what her pledge means for the people whom she has sworn to represent: the voters of San Francisco. A REPRESENTATIVE’S DUTY? Some might challenge Pelosi’s pledge as a dereliction of her duty as a member of the House. Even if we put to one side the merits of whether President George W. Bush deserves to be impeached for high crimes and misdemeanors, surely each member of the House must always keep an open mind about impeachment. It’s part of the responsibility of a member of Congress and part of that person’s oath to uphold the Constitution. Perhaps that means keeping impeachment “on the table” just in case the president commits certain crimes. Impeachment is, after all, the only way to remove him. Pledging not to impeach not only ties Congress’ hands if the remedy is warranted, but is, in some very real sense, an abdication of a duty of office. Now Pelosi has recourse to an obvious rejoinder (even if she won’t resort to it for fear of being this year’s great “flip-flopper”). Her pledge can be interpreted as pertaining only to presidential actions now known, not actions about which she may learn in the future. As a sort of campaign promise, this precommitment is unexceptional. Politicians routinely change their minds when new information comes to light. Moreover, her pledge may just be an attempt to describe the current state of affairs: Impeachment is off the table because the votes for impeachment simply aren’t there. Her critics may nevertheless argue that there is a nonwaivable duty to impeach, and taking it off the table should be seen itself as unconstitutional. Certainly, some Republicans in the House saw it as their duty to impeach President Bill Clinton, notwithstanding any political retribution that might accrue to them. And some courts — notably the U.S. Court of Appeals for the D.C. Circuit in Mitchell v. Laird (1973) — have suggested that there are real duties of impeachment in the legislative standing context. Accordingly, it may be improper to pledge not to take the duty sufficiently seriously or to waive it altogether. But as Yale law professor Akhil Reed Amar wrote in the Hofstra Law Review in the wake of the Clinton impeachment, “Article I, Section 2, of the Constitution gives the House the �power’ to impeach, but imposes no duty to impeach. The Framers knew how to use the word �duty’ — indeed they used it twice in Article II — and so there is no ambiguity here. House impeachment is about power, not duty — about choices, not obligations.” Amar had a further argument that the question of impeachment always requires calculations about whether the turmoil is worth it. Pelosi made clear that she thinks impeachment of Bush would be a “waste of time.” According to Amar, that’s always a relevant consideration. Just as prosecutorial discretion allows prosecutors to choose not to enforce certain remedies upon certain wrongdoers, the House has the discretion not to exercise its impeachment power. The House also has the power to pardon the president (since it would be ridiculous to let the president pardon himself), and each member of Congress can decide whether to use that power to let the president off scot-free. So Pelosi’s claim doesn’t seem like an unconstitutional dereliction of her duty. But isn’t it transparently political? Isn’t it simply part of some general Democratic strategy to respond to Sean Hannity’s and Bill O’Reilly’s routine demonization of Pelosi, and let voters on the fence know that Democrats won’t bring government to a standstill if they should win back the House? Indeed, it probably is. That seems to reveal impeachment as a partisan process through and through. But the Framers, after all, set the bar very high by requiring a strong supermajority. They understood that the president could be unseated too easily if a mere majority had the votes to impeach. They knew that the constitutional standard of “high crimes and misdemeanors” was vague and could be subject to partisan manipulation, so they required a high threshold of agreement to transcend the bickering of day-to-day politics. If the Framers knew it, we ought not to wince when we see impeachment battles for what they are: political plays that are used for partisan reasons. David Swanson of the pro-impeachment group AfterDowningStreet.org was outraged when he learned of Pelosi’s impeachment promise. Swanson said, “She’s thinking in terms of the election. It’s disgraceful to put electoral politics ahead of checks and balances and the Constitution.” Indeed, we might like to think of impeachment as a high-minded moral enterprise of meting out justice. But, with respect, that’s naive. You can’t fault Pelosi for playing politics here; the Framers already wrote this very script. SPEAKING FOR SAN FRANCISCO Perhaps no group is more up in arms about Pelosi’s pre-commitment than the very people she represents. In February of this year, San Francisco’s Board of Supervisors passed a resolution instructing the city’s congressional representatives to call for Bush’s impeachment. While the board has no actual power to demand that Pelosi do anything (and technically she doesn’t represent the entire city), the board’s vote is probably a fair reflection of her constituents’ views. So Pelosi is obviously not heeding those views, and that is problematic. Of course, representation doesn’t require a one-to-one correlation between voters’ opinions and lawmakers’ acts. A representative serves as a trustee of sorts and needn’t mirror every political preference of those she represents. Moreover, a congressional representative has an additional constituency to whom she must cater: Pelosi is a member of the federal government and, as such, has duties to the federal government and to all Americans. She also has duties to her party, and the Democratic Party leadership may very reasonably believe that an impeachment process would be counterproductive. Since she may very well become speaker of the House and be in line for presidential succession, she has more to think about than her leftist supporters back home. But why else do we have geographical representation at the congressional district level if not to enable the voters to demand that their core preferences be acted upon by their representatives? If the voters of San Francisco want impeachment, they can feel justifiably slighted by their representative’s pledge to take it off the table. Of course, if San Franciscans really oppose her gambit on the impeachment issue, they have the power to vote her out. This is the standard democratic solution to the failures of representation. Just as Ned Lamont was able to beat Sen. Joseph Lieberman in Connecticut’s Democratic primary, someone can challenge Pelosi for her views on impeachment. But it is fair to see this democratic solution as cold comfort (just as the citizens of Connecticut are learning that their effort to punish Lieberman for his support of the Iraq war was relatively ineffective). Pelosi has power in the House that a new representative would lack, and the only viable way to beat her in a Democratic primary would be with tons of money. In any case, it’s too late now to rerun the Democratic primary, and voting Republican may not strike many San Franciscans as a good option. This leaves voters with little real recourse. And for that reason alone — that she is ignoring a central political preference of her constituents, who themselves are at her mercy — Pelosi’s pledge on impeachment is a suspect decision.
Ethan J. Leib, author of Deliberative Democracy in America (2004) and co-editor of The Search for Deliberative Democracy in China (2006), is a professor of constitutional law and legislation at the University of California’s Hastings College of the Law in San Francisco.

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