To End a Presidency
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Johnson’s near removal offers some enduring and underappreciated lessons about “high Crimes and Misdemeanors.” Most important: it really does matter which acts are identified in articles of impeachment voted on by the House. Although impeachment proceedings are intensely political, they are also technical and legalistic. When the House decides to impeach a president on the basis of specific misdeeds, it will inevitably be held to establishing those particular claims in the Senate and in the court of public opinion.
In Johnson’s case, there was a stark mismatch between the articles of impeachment and the actual reasons he was impeached. Following a bloody Civil War, slavery had finally been abolished—at least on paper. But brutal racial suppression still stalked the land. More than six hundred thousand Americans lay dead, with collateral damage to every aspect of national life. Profound questions about the future and very nature of the Union stood unanswered. As many legislators recognized, the Constitution had failed in its essential purpose and required radical transformation. Led by a fractious Republican coalition, Congress therefore embarked on a controversial reconstruction program meant to heal a broken country.
These would have been trying times for a truly great leader. But Johnson wasn’t great. He wasn’t even okay. Utterly devoid of presidential manner, Johnson mixed malice and incompetence with virulent racism. Universally disliked, Johnson would have been an awful president at any point. In 1868, though, his awfulness reached transcendent heights. As Professor Annette Gordon-Reed has observed, “it would be impossible to exaggerate how devastating it was to have a man who affirmatively hated black people in charge of the program that was designed to settle the terms of their existence in post-Civil War America.”38 Johnson opposed and then vetoed landmark civil rights statutes. When Congress overrode those vetoes, he refused to enforce the laws and interpreted them in bad faith. Along the way, he mangled the basic duties of his office and trashed every ounce of goodwill he was offered. “[W]ithin a year of [his] elevation to the presidency,” writes historian Michael Les Benedict, the “preliminary Reconstruction program enacted by Congress lay in utter ruin.”39
After repeated, unsuccessful efforts to compromise, Republicans in Congress finally concluded that Johnson had to go. At this point, they searched long and hard for an ironclad offense that would justify his removal. But rather than rely on the true reasons for their campaign, Republicans resorted to the Tenure of Office Act. Having selected a dubious impeachable offense, they were stuck with it. In the case they made to the Senate, Johnson’s removal of Stanton—rather than his reactionary and neo-Confederate vision of the post–Civil War presidency—took center stage.
This was unfortunate. The shaky claims prosecuted by Republicans obscured a far more compelling basis for removal: that Johnson’s virulent use of executive power to sabotage Reconstruction posed a mortal threat to the nation—and to civil and political rights—as reconstituted after the Civil War. In 1868, these were not ordinary policy disagreements. In many ways, the country was in the throes of a second founding. Yet Johnson abused the powers of his office and violated the Constitution to preserve institutions and practices that had nearly killed the Union. He could not be allowed to salt the earth as the Republic made itself anew.
Historians have long debated whether different arguments would have ended Johnson’s presidency. For example, perhaps it would have been wise to impeach him for failing to “take Care that the Laws be faithfully executed”—in particular, the series of laws comprising Reconstruction. Historians have also debated whether removing Johnson would have mattered in practice (given the politics of the era) and whether the act of impeaching him was sufficient in its own right (since Johnson thereafter deferred to Congress on Reconstruction). We’ll revisit some of those questions in subsequent chapters. But in hindsight, there can be little doubt that House Republicans failed to plead and prosecute their best case on the merits.
The Johnson proceedings thus teach a crucial lesson. The Impeachment Clause directs attention to particular misdeeds, not the ambient badness of a presidency. It’s therefore essential that the House formulate articles of impeachment that effectively capture the full gamut of alleged “high Crimes and Misdemeanors.” It’s through these articles that the House defines the terrain on which it will join battle with the president. When the House contemplates formal accusations that the president committed impeachable offenses, those charges must stand on their own.
A difficulty may therefore arise in cases—like Johnson’s—where the offense consists not of a single atrocity, but rather an accumulation of bad acts into a terrifying pattern. On the one hand, accuracy and specificity are key attributes of “high Crimes and Misdemeanors.” They separate that standard from “maladministration,” and help ensure that impeachment trials don’t become free-ranging meditations on shifting, scattershot allegations. On the other hand, an unyielding fixation on discrete deeds can blind us to patterns that turn individually troubling acts into a dangerous abuse of office. To adapt a term from debates over privacy law, consider this a “mosaic theory” of impeachable offenses: individual tiles might say little, but viewed together they can compose a shocking picture.40
In some cases, a mosaic approach is therefore necessary. Indeed, as attorney John Labovitz recognized in 1978, “the concept of [a discrete] impeachable offense guts an impeachment case of the very factors—repetition, pattern, coherence—that tend to establish the requisite degree of seriousness warranting the removal of a president from office.” The question, he added, “is not whether a string of zeroes will sum to one, but whether a number of fractions will.”41 At times, a single evil act might say everything necessary to justify impeachment. In other cases, though, that determination requires reference to a broader course of conduct that slowly reveals a monster lurking in the Oval Office. In Johnson’s case, for example, none of his particular vetoes, speeches, nonenforcement policies, misinterpretations of the law, or neo-Confederate acts were “high Crimes and Misdemeanors” in their own right. But they almost certainly qualified as impeachable in the aggregate.
On this score, the Nixon impeachment hearings are instructive. After thorough fact-finding and debate, the House Judiciary Committee reported three articles of impeachment to the full House. The committee’s first article, “Obstruction of Justice,” leveled the following accusation:
On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.42
This allegation was followed by nine paragraphs identifying “the means used to implement this course of conduct.” Those means nonexhaustively included many lesser offenses: perjury; withholding evidence; interfering with ongoing FBI investigations; endeavoring to misuse the CIA; disseminating secret information to people under investigation; making and supporting false public statements about investigations into his illegal conduct; and encouraging prospective criminal defendants to expect favored treatment in return for their silence or false testimony.
This article of impeachment wisely mixed the particular and the pattern. While it charged Nixon with a single overarching offense, the supporting evidence canvassed years of conduct and dozens of discrete acts—few of which would have been grounds for removal viewed in strict isolation. Only through painstaking effort, and sensitivity to the bigger picture, did the House Judiciary Committee assemble a clear and damning account of Nixon’s abuses. Sometimes “high Crimes and Misdemeanors” occur in slow motion and require panoramic vision.
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nbsp; Lawyers specialize in thinking about things while pretending not to. As Professor Thomas Reed Powell caustically remarked in 1935, “if you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”43 In this chapter, we have identified general principles of constitutional law that must frame any account of impeachable offenses. This analysis should stand for many years to come, under presidents of different backgrounds and ideologies. Yet it would be strange to pretend we can discuss “high Crimes and Misdemeanors” today without any reference to Donald Trump.
So we won’t pretend. Instead, we’ll offer a few thoughts on specific questions that have arisen in the early Trump presidency.
But first, a disclaimer: impeachments are dynamic processes that must respond to new information and evolving political realities. Whether presidential conduct justifies removal from office can’t properly be decided in a void. That’s especially true when the public doesn’t yet have a full understanding of the facts or their legal implications. As we write in mid-March 2018, Special Counsel Robert Mueller and several congressional committees are investigating relationships between Russia and the Trump campaign. Those investigations are exceptionally important. Their conclusions will shape public views of whether Trump engaged in, knew about, or recklessly tolerated collusion with a hostile foreign power. It would be imprudent to make strong claims about Trump’s conduct without a full record of the relevant facts. Accordingly, at this juncture we must confine ourselves to some general observations about the nature of Trump’s alleged “high Crimes and Misdemeanors.”
Among the gravest allegations shadowing this presidency is that it may have come into being illicitly. There is now a plausible basis for speculation that senior figures in Trump’s campaign—and possibly the president himself—conspired with the Kremlin in manipulating the 2016 election. For example, it has already been established that the president’s son and campaign manager knowingly met with Russian agents to obtain information that they hoped would harm Hillary Clinton’s candidacy. Further, it is now apparent that an astonishing number of senior Trump advisors have lied about meeting with Russians, lied about who was present, and lied about what they discussed. Perhaps most alarming, since taking office, Trump has ostentatiously refused to fulfill one of his most basic duties as president: protecting the nation and its political system from damaging cyberattacks by a hostile foreign power.
In creating the impeachment power, the Framers worried most of all about election fraud, bribery, traitorous acts, and foreign intrusion. Willful conspiracy with a hostile foreign power to influence the outcome of a presidential election directly evokes all of these concerns. Although the meaning of “high Crimes and Misdemeanors” is often open to dispute, here there’s little room for serious disagreement. Needless to say, any such duplicity would be especially severe if it could be shown that the foreign power had assisted the winning candidate in exchange for promises to bend US policy in its favor. The evil posed by that sordid arrangement would be compounded further still if the foreign government had also offered the continuing benefit of withholding embarrassing or incriminating information about the president (or his associates). These misdeeds involve an extreme and corrupt betrayal of the United States, and it would therefore be appropriate to impeach a president who owed any part of his election to them. Simply put, a president found to be engaged in such extraordinary treachery could never again be trusted to lead the US government or conduct its foreign affairs.
Some observers, however, have voiced doubt that conduct before a president is elected or sworn into office can ever justify impeachment. They note that it is logically impossible to abuse power before one actually possesses it.
With respect to pre-inauguration conduct meant to distort an election, we think that argument is both incorrect and irrelevant. The Framers were practical men. While creating the Constitution, they repeatedly described corrupt acquisition of the presidency as a paradigm case for impeachment. It would be passing strange to think that this concern covers illegal acts by an incumbent (who already holds power), but is utterly inapplicable to an insurgent (who improperly obtains power). Reading the Constitution that way transforms a workable blueprint for self-governance into an exercise in abstract formalism. The Constitution’s commitment to popular sovereignty—and its defenses against foreign influence over federal officials—strongly imply that someone who gains power by working with a hostile nation cannot retain the fruits of his wrong. Although our system affords no process for nullifying or rerunning a corrupted election, it does provide a rough approximation: stripping the treacherous candidate of his ill-gotten gains.
In any event, we doubt that a president who has already betrayed the nation this way would cease all impeachable conduct the instant he is sworn into office. If his collusion with a foreign power involved expectations of continuing influence over US policy, any official actions he took consistent with that expectation would constitute “high Crimes and Misdemeanors.” If the foreign nation threatened to expose the president’s electoral malfeasance, or sought to blackmail him with other compromising information, any official actions he took to conceal that fact or improperly favor the foreign power also would be impeachable. Further, if suspicion of wrongdoing emerged and the president obstructed justice, that conduct would independently justify his removal. For instance, it would be an impeachable offense in that scenario to pardon co-conspirators, fire investigators, order prosecutors to drop the case, intimidate witnesses, and orchestrate a cover-up. It’s therefore unlikely to be decisive whether pre-inauguration conduct is impeachable in its own right. A president who wins by corrupt means will almost inevitably abuse power after swearing the oath of office.
For that reason, among others, it is significant that Trump has already taken steps that raise credible questions about obstruction of justice. To note just a few examples, he secretly demanded “loyalty” from then-FBI Director James Comey; requested that Comey cease investigating his campaign for improper contact with Russia; fired Comey over his handling of the Russia investigation; bragged about firing Comey in a meeting with the Russian ambassador; and then made multiple inconsistent statements about why he had fired Comey in the first place. While many facts critical to an assessment of Trump’s conduct remain unknown, this highly irregular pattern of behavior cries out for congressional scrutiny. Regardless of whether Trump’s conduct satisfies the elements of an obstruction charge under applicable provisions of the US Code, it might well justify impeachment hearings in the House.
Some of Trump’s most extreme defenders have argued that the Constitution categorically prohibits impeachment on the basis of Trump’s decision to fire Comey. In their view, because Trump has broad constitutional authority to hire, fire, and supervise executive branch employees, it isn’t possible for him to “obstruct justice” in exercising that power. This argument bears a striking resemblance to Nixon’s infamous assertion, “When the president does it, that means it’s not illegal.” And it is equally mistaken.
The basic flaw in this claim is that it purports to describe a zone of absolute, unchecked, and uncheckable power. Such a limitless view of the president’s authority is jarringly out of key with the rest of the Constitution, which stands for the principle that nobody is above the law. In conferring powers upon the president, the Constitution does not also immunize him from continuing oversight and accountability. As Jane Chong accurately observes in the Lawfare blog, “There are no realms of impunity and no exercises of power that can be meaningfully described as categorically exempt from serious congressional scrutiny.”44
That scrutiny properly encompasses hearings on whether to end a presidency. Concluding otherwise would blast a massive hole in the Impeachment Clause. After all, the formal powers vested in the chief executive are vast. Put to nefarious ends, they could wreak havoc on our democracy. It is inconceivable that the architects of checks and balan
ces forbade us from removing presidents who use lawful powers to achieve tyrannical ends. If anything, the opposite is true. When the president corruptly exercises his power in destructive ways, impeachment serves as the ultimate safeguard for our political order. Indeed, the paradigmatic case for impeachment involves abuses of “the executive Power” that portend future harm and that can’t be addressed through less extreme measures.
Thus, the president’s broad power over foreign affairs wouldn’t save him from impeachment if he gave our most vital national security secrets to China during a negotiation in exchange for a private benefit to him or his businesses. The president’s power as commander in chief of the armed forces wouldn’t prohibit impeachment if he deliberately ordered US soldiers to massacre innocent civilians. And the president’s power to nominate judges wouldn’t shield him if he announced that he hates courts and will refuse to nominate any judges throughout his term in office. As these hypothetical examples show, it would be irresponsible and dangerous to conclude that Congress may not impeach the president based on how he wields the powers of his office.
For a more concrete example, consider Nixon. As head of the executive branch, he ordinarily would have been free to determine the priorities of the White House, the IRS, the CIA, and the FBI. In fact, he would have been expected to do so. Further, many of the specific orders that he issued to federal employees between June 1972 and August 1974 surely fell within the lawful scope of his constitutional power as president. But for good reason, these facts did not deter the House Judiciary Committee from probing how Nixon had wielded his authority throughout this period. Nor did it stop the committee from exploring the motives for Nixon’s actions. And in the end, the committee had little trouble finding that Nixon had acted with the corrupt and criminal purpose of obstructing justice. On this basis, among others, it decisively approved articles of impeachment against him.