To End a Presidency

by Laurence Tribe

  Through all six chapters, we emphasize the constant importance of exercising good judgment in the here and now. That may sound obvious, but a great deal of writing about impeachment implies that the Framers, the Constitution, the criminal code, Congress, or someone else has already made the judgment calls that truly matter. For example, in a generally excellent book about impeachment, Professor Cass Sunstein writes: “[The Framers] knew what they were doing. They threaded a needle. They accomplished a miracle. There’s no reason to depart from their understanding of their framework. We can’t do better than they did, and if we tried, we would probably do worse.”2 Language like this comes awfully close to misty-eyed Framer worship. It can also be read to suggest—falsely—that our role in the impeachment process amounts to little more than faithfully executing a vision set to holy parchment more than two centuries ago.

  Those who wrote the US Constitution were blessed with great insight, but it blinks reality to think that their intent or understanding can answer all of our questions. Since 1789, the world and the Constitution have changed in innumerable ways, and any useful account of impeachment must reckon with those changes. They affect the scope of impeachable offenses, the odds that any impeachment campaign will succeed, and the likely consequences of pursuing (or deciding against) an impeachment. Moreover, any individual impeachment involves innumerable discrete decisions made by many different actors. On most of these issues, the Constitution speaks only in majestic generalities—if it speaks at all. We most faithfully fulfill the Framers’ vision when we respect the decisions they made, recognize the decisions they declined to make, and carefully exercise the responsibility they entrusted to us.

  Acting responsibly here means recognizing that impeachment is a fearsome power. In principle, ending a presidency this way carries the potential to save or destroy the constitutional system. Because of its extraordinary danger, impeachment should be invoked only under dire circumstances. And even then, it must be handled with care. Every effort should be made to carry out the impeachment process in a manner that brings the country together rather than rending it apart. To be sure, there are times when impeachment is the last, best hope for democracy; faced with abuse and corruption of the highest order, our duty is to act. But striking at the president in a fit of passion—and without a plan for the future—risks exploding all that we’re trying to preserve. A well-intentioned effort to save democracy through impeachment could thus tragically backfire—unleashing outrage and aftershocks that exacerbate our system’s underlying dysfunctions.

  As we’ll see, that is one of many paradoxes that afflict discussions of impeachment. This subject is rife with surprising and counter-intuitive dynamics that often pass unnoticed:

  • In some cases, well-justified calls to impeach the president can simultaneously empower him, harm his political opponents, and make his removal from office less likely.

  • When a demagogue gains power by sowing division and confusion, the importance of impeaching him may increase even as the possibility of mustering a consensus to do so diminishes.

  • Because removing a truly determined tyrant may unleash havoc, the risks of impeaching a president are apt to be most extreme precisely when ending his tenure is most necessary.

  • As a matter of political reality, an impeachment may be most likely to succeed in Congress when other, less extreme measures are also most viable.

  To avoid these sand traps, the American people must think strategically about their response to abuse and corruption. Democracy requires vigilant protection against presidential tyranny.

  If you’re reading this book in 2018, you’re probably thinking about Trump. So are we. It’s impossible to write about impeachment without confronting a president whom millions regard as a menace to liberty, but whom many others view as their hope for a better life. Our own views on Trump are no secret. We’re among the lawyers suing him for accepting illegal emoluments. We’ve opposed him on many other legal and political fronts, too. It will suffice to say that we both think Trump is an abysmal president and that we’re appalled by his conduct in office. When we discuss Trump in relation to impeachment—at the end of Chapters 2 and 5, and in Chapter 6—we pull no punches in our assessment of the damage that he has done to American democracy.

  But this book is not a brief for removing Trump. It does not reflect partisan talking points, and it does not rely on “liberal” or “conservative” methodologies. Rather, we’ve undertaken a wide-ranging exploration of law, history, and politics bearing on exercise of the impeachment power. We have sought to identify general principles and frameworks that should govern any impeachment analysis. It is our hope that these ideas serve as a basis for bipartisan discussion in this divisive era. We are confident that our constitutional study will stand the test of time and will remain useful for many years to come. Whether you support or oppose removing Trump from office, we promise that this book will challenge your views and deepen your insight.

  When we began this project, we ordered a copy of the House Judiciary Committee report on the impeachment of Richard M. Nixon. To our surprise, Amazon sent us a copy signed by civil rights legend John Doar, who served as special counsel to the committee. His signature was dated August 1974, the month Nixon resigned from office, and it was accompanied by an inscription: “The Constitution is well worth fighting for.”

  This is a book about ending presidencies through the power of impeachment. It’s also a book about fighting for the Constitution and the democracy it protects. Whether those are the same thing—or are instead diametrically opposed—is for each of us to decide in our own time.

  1

  WHY IMPEACHMENT?

  If we don’t allow presidential impeachment, warned Benjamin Franklin, then the only recourse for abuse of power will be assassination. In Franklin’s view, that’s what history taught about “cases where the chief Magistrate rendered himself obnoxious.” Yet assassination is a deeply flawed and unjust remedy. The victim is “not only deprived of his life but of the opportunity of vindicating his character.” Surely it would be better “to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”1

  Franklin made this plea to the Constitutional Convention on July 20, 1787. By then, the Framers had already begun designing the office of the presidency. Although we now take many features of that office for granted, nearly everything was up for grabs at the Convention. Disagreements ran deep. What powers should be vested in the executive branch? Should the chief executive be one person or several? How should the chief executive be selected, how long should his term in office last, and should there be limits on running for reelection? Also, what should we call this newfangled position? (It wasn’t until August that the Convention’s Committee of Detail settled on the title “president.”)

  In the thick of these debates, the Framers started to worry. They were creating a powerful chief executive to preside over a powerful federal government. Despite all the safeguards they had layered in the Constitution, including the Electoral College, evil or incompetent leaders might someday hold that position. The results of tyranny or corruption at the highest level could be devastating. Clearly, something had to be done. But what? The scope of the president’s power—and his independence of the other branches—would partly depend on who could remove him from office (and on what basis). Unless carefully bounded, the mighty power to end a presidency could too easily become the power to control a president.

  As Franklin reminded his colleagues, world history offered little guidance. For millennia, nations had struggled and failed to deal with powerful leaders who jumped the rails. Ancient Athenians briefly experimented with formal ostracism, allowing the Assembly to exile any citizen, for any reason, for a period of ten years. The Romans, in turn, empowered magistrates called “censors” to expel members of the Senate for illegal or corrupt conduct—though this right of rem
oval did not reach emperors (many of whom instead fell to usurpers’ blades). Neither the Greek nor the Roman examples came highly recommended. Indeed, virtually without exception, the history of bad rulers known to Franklin and company was a brutal, bloody, and tragic tale.

  But Franklin saw a way to break that cycle. In his telling, the English doctrine of impeachment offered a civilized answer to problems once solved by assassins and revolutions. Dating to 1376, impeachment had been forged in the crucible of contests between Crown and Parliament. To curb abuse and protect its prerogatives, the House of Commons prosecuted powerful offenders before the House of Lords. This practice quickly fell into disuse after it was first invented, but a newly assertive Parliament revitalized it in the mid-seventeenth century (following the English Civil War). At that point, the political theory of rule by divine right made it inconceivable that Parliament could lawfully remove the king from power. As a workaround, Parliament instead began impeaching royal ministers—not only for personal misconduct, but also to express disapproval of royal policies. In these cases, Parliament relied on the threadbare fiction that faulty advisors must have led the king astray. Ultimately, as Professor Raoul Berger explains, Parliament used impeachment to make “ministers chosen by the King accountable to it rather than the Crown, replacing absolutist pretensions [with] parliamentary supremacy.”2

  Impeachment thus had a long pedigree in England. But that wasn’t true in the New World. American colonial assemblies never enjoyed a formal right to impeach anyone for anything. The colonists, though, were nothing if not precocious when it came to thwarting tyranny. As two leading historians recount, “American men of affairs, concerned with the safety of their communities and with their own political advantage… often ignored or refashioned rules of law to fit exigency and interest.”3 By the early 1700s, many colonists had come to view the impeachment power as a birthright. During the years leading up to the Revolution, some legislatures refused to stop impeaching even when ordered to stand down by panicked royal councilors.

  When Franklin spoke of assassins and alternatives at the Constitutional Convention, he invoked this rich history. Revised into an American vocabulary, the impeachment power would allow “We the People” to inflict political death—but nothing more—on tyrannical leaders who posed a grave threat to the Republic.

  In principle, this was an elegant solution. Yet as was often true that hot summer in Philadelphia, the details were devil-ridden. To understand the place of impeachment in our democracy today, we must first reckon with a series of trade-offs made by the Framers in the eighteenth century. Those decisions shed light on the impeachment power as structured by the Constitution. They also provide a useful frame of reference for ending presidencies in the modern world.

  Franklin’s remarks on impeachment were part of a long-running debate that had finally neared its end. That same day, the Convention would vote on a resolution making the president “removable on impeachment and conviction of malpractice or neglect of duty.”4

  By this point, everyone knew the deck was heavily stacked in favor of allowing presidential impeachment. Indeed, the Convention had passed an identical, preliminary resolution nearly two months earlier. Since then, many delegates had set forth plans of government that included a mechanism for removing the chief executive from office. An assumption that presidents could be impeached thus pervaded the underlying harmony of the Constitution as it took shape in June and July 1787. In debating judicial appointments, for instance, George Mason cautioned that “if the Judges were to form a tribunal for [impeachment], they surely ought not to be appointed by the Executive.”5 Although Mason’s concern was ultimately rendered moot, it reflected his expectations about the existence of an impeachment power.

  On July 20, however, the Framers began with first principles: whether they should allow any form of presidential impeachment. When that question reached the floor, Charles Pinckney and Gouverneur Morris raised immediate objections. In their view, impeachment would destroy the separation of powers and defeat a core purpose of the Constitution. They added that other checks and balances in the federal system would suffice to address any instances of presidential wrongdoing.

  This opening volley of criticism was met straightaway by a devastating series of responses from Mason, Franklin, James Madison, William Davie, Elbridge Gerry, and Edmund Randolph. (We shiver at the thought of finding ourselves on the wrong side of an argument with that group.) These statements illuminate the specific anxieties and general principles that led some Framers to conclude that the Constitution must authorize impeachment.

  Their first concern involved electoral integrity. After months of debate, the Framers had established the Electoral College. They were satisfied with it as a tool for picking presidents but feared that individual electors might be intimidated or corrupted. In Mason’s view, the risk of election fraud “furnished a peculiar reason in favor of impeachments.” He asked, “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”6 Without an impeachment process, presidents could obtain office corruptly and then enjoy the poisonous fruit of their own electoral treachery. Democracy itself might be destroyed.

  Davie worried about elections, too, but he didn’t limit his concern to manipulation of the Electoral College. If a president couldn’t be impeached, then he might commit abuses and seek to escape punishment by sparing “no efforts or means whatever to get himself re-elected.”7 Including an impeachment power in the Constitution would prevent corrupt and criminal presidents from seeking victory at any cost. Even if returned to office by loyal supporters, they could still face justice for their wrongdoing.

  Many Constitutional Convention delegates also worried that presidents might be tempted to accept foreign bribes and conspire with enemy powers. These fears of betrayal weren’t hypothetical. The Framers knew that King Louis XIV of France had used lavish pensions to corrupt King Charles II of England. Based on this experience, they appreciated that powerful leaders could be vulnerable to foreign influence. That is why they separately forbade federal office holders from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state.” And it was one reason why Madison argued in favor of allowing impeachment. An American president, he observed, might someday “betray his trust to foreign powers.”

  In Madison’s view, the threat of foreign bribery related to a more general risk that presidents could seek to improperly enrich themselves. The Constitution, he concluded, had to address the possibility that a president “might pervert his administration into a scheme of peculation or oppression.”8 (No longer a common term, peculation refers to embezzling public monies.) Randolph echoed and expanded upon Madison’s point: “The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.”9

  Finally, with characteristic foresight, Madison identified a distinct imperative: “defending the Community [against] the incapacity… of the chief Magistrate.” Here, he warned against the danger posed by a president who has “lo[st] his capacity after his appointment.” In Madison’s view, quadrennial elections alone were “not a sufficient security” against this nightmare scenario.10 (As we explain in Chapter 6, it was not until ratification of the Twenty-Fifth Amendment in 1967 that the Constitution explicitly addressed presidential incapacity.)

  Electoral corruption, foreign bribery, treason, and abuse of the fisc and army anchored the case for an impeachment power. But arguments in favor of this position flowed from deeper principles. For Mason, impeachment was about vindicating the rule of law: “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?” Randolph voiced a similar view: “Guilt wherever found ought to be punished.” Gerry, for his part, sought to bury the maxim “that the chief Magistrate could do [
no] wrong.” Urging the necessity of impeachments, he emphasized: “A good magistrate will not fear them. A bad one ought to be kept in fear of them.”11

  Other delegates highlighted the risk of not allowing presidential impeachment. Randolph, for example, echoed Franklin’s concern about domestic strife: “Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections.”12 Franklin, in turn, warned against condemning the nation to disruptive uncertainty in cases of suspected presidential misconduct. Here he referenced “the case of the Prince of Orange,” who had broken a promise to deploy the Dutch fleet to rendezvous with French forces. Suspicion of the prince spread like wildfire. “Yet as he could not be impeached and no regular examination took place, he remained in his office… [giving] birth to the most violent animosities & contentions.” In Franklin’s view, “had [the prince] been impeachable, a regular & peaceable inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.”13

  These observations nicely captured the political zeitgeist. The American people had only recently endured decades of royal abuse. They had risked their lives combating tyranny and corruption. Many of the Framers had signed the Declaration of Independence, whose bill of particulars against King George III modeled what we’d now view as articles of impeachment. In that context, the Constitutional Convention was not about to create a more robust federal government—presided over by an energetic chief executive—and then deny the nation an escape hatch. As Mason noted early in the deliberations, “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.”14 This was not mere political theory. To the Framers, it was hard-won wisdom.