To End a Presidency

by Laurence Tribe

  Copyright

  Copyright © 2018 by Laurence Tribe and Joshua Matz

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  Library of Congress Cataloging-in-Publication Data

  Names: Tribe, Laurence H., author. | Matz, Joshua, author.

  Title: To end a presidency : the power of impeachment / Laurence Tribe, Joshua Matz.

  Description: New York, NY : Basic Books, 2018.

  Identifiers: LCCN 2018010873 (print) | LCCN 2018011754 (ebook) | ISBN 9781541644878 (ebook) | ISBN 9781541644885 (hardback)

  Subjects: LCSH: Impeachments—United States. | President—Legal status, laws, etc.—United States. | United States—Politics and government—1989- | BISAC: LAW / Constitutional. | POLITICAL SCIENCE / Constitutions. | POLITICAL SCIENCE / Government / Legislative Branch. | POLITICAL SCIENCE / Government / Executive Branch. | LAW / Government / Federal.

  Classification: LCC KF5075 (ebook) | LCC KF5075 .T75 2018 (print) | DDC 342.73/062--dc23

  LC record available at https://lccn.loc.gov/2018010873

  ISBNs: 978-1-5416-4488-5 (hardcover), 978-1-5416-4487-8 (ebook)

  E3-20180406-JV-NF

  CONTENTS

  Cover

  Title Page

  Copyright

  Dedication

  Preface

  1. Why Impeachment?

  2. Impeachable Offenses

  3. To Impeach or Not to Impeach

  4. Congress, the Decider

  5. Impeachment Talk

  6. Impeachment, Incapacity, and Broken Politics

  Acknowledgments

  About the Author

  Advance Praise For TO END A PRESIDENCY

  Selected Further Reading

  Notes

  Index

  For our partners, Elizabeth and Hillel

  PREFACE

  Impeachment haunts Trumpland. Never before has an American leader so quickly faced such credible, widespread calls for his removal. By early 2018, the list of alleged “high Crimes and Misdemeanors” included abuse of the pardon power, obstruction of justice, assaults on the free press, promotion of violence against racial and religious minorities, receipt of unlawful emoluments, deliberate refusal to protect the nation from cyberattacks, and corrupt dealings relating to Russia. President Donald J. Trump fueled these fires by rejecting bipartisan norms of presidential conduct and by ferociously attacking anyone who dared to challenge him. Reeling from this onslaught, the American public has fractured. Some warn that Trump is moving us inexorably toward tyranny and global war. Others have circled their wagons, convinced that Trump is uniquely capable of saving the United States—if only political elites will let him. A dwindling group of fence-sitters finds itself besieged on all sides. Calls for Trump’s impeachment, and indignant rebukes of those calls, echo everywhere from TV screens and editorials to Facebook comments and Twitter feeds.

  It’s now clear that as long as Trump holds the nation’s highest office, Americans will actively debate his impeachment. Indeed, as we write this book, over 40 percent of the US electorate supports action to force Trump from power. Roughly 30 percent of voters, in contrast, would view impeachment proceedings as a coup in disguise. In these stormy waters, it is entirely possible that impeachment investigations will already have begun when this book is published. That’s an extraordinary disclaimer to include just one year into a presidential term. But since Trump took office in January 2017, “extraordinary” has become the new normal.

  Of course, that story is much larger than events in the Oval Office. These are angry, anxious times. Tempers run high on TV and social media, fueled by the chattering class and a booming outrage industry. Sharp partisan divisions poison US politics, and the government frequently struggles to govern. We’ve seen a sharp rise in hate crimes, economic inequality, drug addiction, and social conflict. We’ve also witnessed steps toward the unraveling of a liberal international order, including triumphs by right-wing extremists abroad. An unyielding sense of crisis has gripped much of the nation, centered on Trump but swirling outward into every corner of the polity. Democracy itself feels threatened by enemies foreign and domestic. Many now count Trump among those enemies, though millions still view him as the nation’s long-awaited savior.

  This combination of political polarization, incendiary rhetoric, and widespread anxiety has yielded a highly unstable climate in which to debate impeachment. It’s therefore important that the American people develop a shared, well-grounded understanding of impeachment’s role in the US constitutional order. We need a baseline for reasoned discussion and disagreement. That calls for cool and evenhanded reflection, informed by the Constitution and lessons from history. It also requires nuance, rather than absolutes, and the capacity to look beyond reflexive partisan loyalties. Impeachment is not just another form of political combat; it’s an emergency measure meant to save the democratic foundation on which all other politics unfold.

  In approaching this issue, we must aim to strike a balance. Intense disagreements and the pressures of partisan hostility can lead people who lose an election to view the victor as an existential threat. Over the past twenty years, the switch from “electoral loser” to “impeachment supporter” has occurred faster—and on a larger scale—than at any previous point in US history. But sore losers are often matched by self-righteous winners. Especially when the other side has cried wolf many times before, a president’s base can too quickly ignore well-founded fears of tyranny and corruption. A premise of the impeachment power is that leaders may disappoint our expectations in the most tragic and destructive ways. It’s therefore essential to resist both of these attitudes toward impeachment. The specter of a banana republic lurks at either extreme.

  While casual calls for #impeachment now litter the Internet, ending a presidency this way remains a very big deal. It’s easy to forget that the United States has never actually impeached and removed a president. Although that was the likely outcome had Richard Nixon remained in office, he resigned before the House of Representatives formally approved articles of impeachment against him. On the two occasions that the House did impeach a president—Andrew Johnson and Bill Clinton—the Senate ultimately acquitted, albeit in Johnson’s case by only a single vote. We therefore have no historical experience with the full consequences of pushing that red button. Instead, we’ve generally relied on presidential term limits, the forces of civil society, federalism, and checks and balances to mitigate the damage inflicted by terrible leaders.

  There can be little doubt that a successful impeachment campaign would inflict enduring national trauma. For months or years, politics would shift from ordinary governance toward a grand inqu
est into the president’s alleged evil deeds. With the highest conceivable stakes, political interests and factions on every side would hold nothing back. The resulting enmities, cynicism, and disenchantment with democracy could persist for generations. Throughout the impeachment struggle, moreover, the United States would appear vulnerable to its enemies and unreliable to its allies. An embattled president—or his opponents—might engage in acts of desperation that shatter norms, institutions, and the rule of law. And once removed, the ex-president may not go quietly into the night. The would-be tyrant and his remaining supporters, estranged from our national community, might disavow or seek to destroy American democracy.

  That’s not to say we should never end a presidency through the impeachment power. Faced with a disastrously corrupt or abusive executive, doing nothing may be far riskier than attempting to oust him. As journalist Ezra Klein notes, we must not be “too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office.”1 Especially in this era of a powerful chief executive and decreasingly effective checks on his power, thwarting a tyrant may be worth almost any price. Even then, however, the country would face a terrible choice and a rocky path forward. While an impeachment campaign might rally the public against a threat to liberty, it could also promote division and disunion.

  Accordingly, in responsible discussions about ending a presidency, there are three vital questions to ask. First, has the president engaged in conduct that authorizes his removal under the standard set forth in the Constitution? Second, as a matter of political reality, is the effort to remove the president likely to succeed in the House and then in the Senate? And third, is it genuinely necessary to resort to the impeachment power, recognizing that the resulting collateral damage will likely be significant?

  Put differently: (1) Is removal permissible, (2) Is removal likely to succeed, and (3) Is removal worth the price the nation will pay?

  Anybody who favors impeaching a president should be able to explain why all three of these considerations support that decision. Unfortunately, much writing on impeachment comes up short. More often than not, writers adopt what we call the “Roman Coliseum” style of impeachment analysis. In ancient Rome, crowds passed judgment on defeated gladiators by voting thumbs-up (spare him) or thumbs-down (kill him). This was a yes-or-no determination that occurred in a single moment and in response to a single event. In pronouncing its sentence, the crowd didn’t have to reckon with any continuing consequences in the wider world.

  We’re willing to wager that you have seen a few hundred articles that fit the Roman Coliseum formula: an account of some specific misdeed allegedly committed by the president; a sprinkling of nonspecific quotes by Framers of the Constitution; and then a solemn thumbs-up or -down on whether the president must immediately be impeached. On a rare occasion, the author might glancingly concede the wisdom of awaiting further investigation. And that’s it. The president has (or has not) committed alleged “high Crimes and Misdemeanors,” and therefore he must (or must not) be removed. Arguments about expelling the most powerful leader in the world from office are presented in a simple, one-step analysis.

  As you can probably tell, we’re not fans of the Roman Coliseum style. You shouldn’t be, either. It’s quick and easy—and totally inadequate. Often it treats as the only question what should really be the first of many questions: whether the president may have committed an impeachable offense.

  We’ve written this book to offer a more comprehensive, realistic, and pragmatic view of ending a presidency. Rising above the daily clamor, we map out and address the big questions presented by any impeachment. Along the way, we explore how the impeachment power has shaped (and been shaped by) the broader architecture of our legal and political systems. Many of the issues that we cover have previously received shockingly little attention. And when we arrive at more familiar terrain, such as the definition of impeachable offenses, we show that there’s more to the story than conventional wisdom suggests.

  Our approach has been heavily influenced by the recognition that an impeachment is a dynamic undertaking that unfolds over months or years. Unlike a verdict in the Roman Coliseum, ending a presidency can’t be reduced to a flash-frozen judgment in which Congress votes yea or nay on particular “high Crimes” and then Americans all get on with their lives. We take seriously the fraught political path toward impeachment; the intricacies of prosecuting, defending, and adjudicating an impeachment case; and the importance of anticipating and seeking to minimize disruptive consequences that may follow. We also highlight the many decision makers involved and the many decision points they face. With these issues in mind, suspicion of “high Crimes and Misdemeanors” is revealed as just the tip of the iceberg. The public must therefore think panoramically to determine whether impeaching a president would be wise—and to decide how best to pursue or oppose an impeachment campaign.

  That perspective underlies this book. It led us to divide our inquiry into six parts.

  In Chapter 1, we begin at the beginning: Why have an impeachment process at all? When the Framers assembled in Philadelphia over the summer of 1787, it was hardly a foregone conclusion that they would embrace the obscure English practice of impeachment. We recount their deliberations to illuminate the original purposes of the impeachment power. We also show how the Framers structured impeachment to harmonize it with rest of their constitutional design. Building on that foundation, we identify several lessons of history concerning the use and abuse of impeachment. That discussion leads us through the contemptible efforts to remove John Tyler (1842) and Bill Clinton (1998) from office, and it concludes with Nixon and the infamous Watergate scandal.

  In Chapter 2, we venture into the Roman Coliseum and explain what kind of conduct justifies impeachment. The short answer is easy: “Treason, Bribery, or other high Crimes and Misdemeanors.” But unpacking what that means—if it means anything at all—requires a deeper analysis. We give substance to this famously vague phrase by drawing on original understanding, constitutional text and structure, centuries of historical practice, and a dash of common sense. We then explain why it is wrong and harmful to think that only criminal offenses may qualify as “high Crimes and Misdemeanors.” We also show why it is appropriate to account for patterns of tyrannical conduct in formulating articles of impeachment. With a working definition in place, we then address several of President Trump’s alleged impeachable offenses.

  In Chapter 3, we explore a frequently overlooked subject: Congress’s discretion in deciding whether to impeach the president when faced with credible evidence that he may have committed “high Crimes and Misdemeanors.” There can be no doubt that such discretion exists. The House of Representatives holds the power to impeach, not the duty to do so. And on many occasions—including the Iran–Contra scandal—Congress has decided against seeking the president’s removal when that was a plausible option. After situating this discretion in the Constitution, we discuss the nature and scope of Congress’s formidable power not to impeach. First, we describe other powers that Congress may invoke to address a rogue president, including censure. Next, we explain how legislators’ discretion operates at every step of the impeachment process, from the first hints of wrongdoing to a final vote in the Senate. Finally, we develop a general framework to guide exercises of the impeachment power, identifying a broad array of factors that should inform decisions about whether, when, and how to pursue presidential impeachment.

  In Chapter 4, we go deeper into the halls of Congress. We begin by exploring why the Framers vested the impeachment power in the legislature, rather than in the judiciary, and why they split this power between the House and the Senate. We then consider the many implications of that fateful decision. To start, we describe what actually happens in the House and Senate during an impeachment proceeding. Because the Constitution says almost nothing on this topic, Congress’s chosen procedures illuminate how it has interpreted its own role. They also dema
rcate the strange, haphazard, and intensely political minefield that lawyers must navigate when advancing or opposing a case against the president. Based on this discussion of process, we consider the values and principles that should guide Congress in making impeachment decisions. With that idealized account in hand, we then discuss the wide array of partisan, political, institutional, and other factors that have historically increased the odds that Congress will support impeachment.

  In Chapter 5, we offer a broad history of “impeachment talk” throughout the life of the Republic. Beginning with Thomas Jefferson and ending with Donald Trump, this colorful tale covers every impeachment resolution submitted in the House of Representatives. It also captures selected moments in which the American people aggressively debated ending a presidency but nobody initiated formal impeachment proceedings. These stories show the many and creative purposes for which impeachment has been invoked. Viewed together, they also reveal just how unusual our own era is. Impeachment talk has historically been infrequent and marginal in US politics. That held true until late in the twentieth century, notwithstanding spikes under Woodrow Wilson, Harry Truman, and Richard Nixon. But everything changed after the failed attempt to remove Bill Clinton from office. Under George W. Bush, Barack Obama, and Trump, impeachment talk has become a far more significant aspect of US political discourse and strategy. We discuss that development and conclude with a warning: over the long haul, this saturation of our politics with impeachment talk is likely to do more harm than good.

  Finally, in Chapter 6, we move from the past to the present and examine impeachment in a world of broken politics. By requiring that a majority of the House of Representatives and two-thirds of the Senate agree, the US Constitution ensures that no impeachment will succeed without durable, bipartisan support. But what happens when polarization, hyperpartisanship, “alternative facts,” and other forces of democratic decline make it almost impossible to achieve consensus? We conclude by asking whether the impeachment power can still achieve its underlying purpose in this strange new reality. We also consider calls to invoke the Twenty-Fifth Amendment, which provides a complex process for sidelining the president when he is “unable to discharge the powers and duties of his office.” Ultimately, we warn against recent trends toward fantastical, apocalyptic thinking about impeachment. This historical moment calls for a realistic and savvy defense of democracy. Maybe that involves ending a presidency; maybe it doesn’t. Either way, in the heat of partisan strife, the public must not lose sight of what is truly at stake: our democracy.