To End a Presidency

by Laurence Tribe

  There’s no denying the force of those concerns. Still, as Barack Obama learned repeatedly, and as Trump has already discovered, tales of Congress’s death (and the president’s imperium) have been somewhat exaggerated.

  In any event, to ask about alternatives to ending a presidency is to presume that we’re already in impeachment territory. As a matter of political and institutional reality, that would occur only if there were substantial legislative support behind calls to rebuke or restrain the president. Keep in mind that congressional paralysis isn’t inevitable. It’s a consequence not only of institutional failures but also of broken, gerrymandered, and polarized politics. Changed facts on the ground could alter those dynamics and generate a temporary consensus about addressing presidential misconduct. Thus, when the stars are aligned such that impeachment is on the table, other responses to the president may also be available.

  Congress’s arsenal should not be underestimated. The basic genius of the Constitution is to divide powers among branches that possess the self-interest and sheer capacity to counteract one another. When roused to action, Congress has many methods of constraining a president and thwarting his abuses. Before concluding that impeachment is necessary, it’s important to review these powers and to decide whether an alternative strategy would be more appropriate.

  Let’s start with some of Congress’s most straightforward options. Naturally, Congress might invoke its power to legislate (and to override presidential vetoes). By passing new laws, Congress can impose sweeping, durable limits on the president and the rest of the executive branch. The power of the purse, in turn, allows Congress to exercise far-reaching control over the conduct, policies, priorities, and very structure of the executive branch. Finally, Congress’s powers over personnel give legislators a major say in who occupies judgeships, cabinet positions, and agency roles. That indirectly enables Congress to shape policy and to influence cultures of independence and integrity within the president’s domain.

  When exercised directly against the president, these powers allow Congress to coerce obedience to its will. But they also have a subtler dimension. Used properly, they can shrink the scope of the president’s authority to act unilaterally. As Justice Robert Jackson famously wrote, the president’s powers “are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”18 If Congress legislates on issues of great concern to the president, it can reduce his power to what Jackson called “its lowest ebb.” This would undermine the president’s formal prerogative to pursue significant initiatives without congressional support.

  In the same breath, Congress can undermine the president’s informal authority. On many issues, the Constitution offers little more than a rough sketch for how the political branches should interact. As a result, the governing authority actually available to the president and Congress at any given point isn’t determined only by law. Instead, it’s largely determined by shifting dynamics of public support. As Professor Josh Chafetz writes, “within the confines laid out by the [Constitution], it is public engagement in the public sphere that determines where… the power to decide really lies.”19 If the president’s abusive conduct undermines his standing with the public, Congress can seize the high ground. Having done so, it can then attempt to realign national politics behind its initiatives—including efforts to keep the rogue president under control.

  Relatedly, Congress can hold the president and his staff accountable through aggressive oversight. Both houses of Congress enjoy a power of investigation that the Supreme Court has deemed “penetrating and far-reaching.”20 This includes the authority to compel testimony and hold uncooperative witnesses in contempt. Through its vast investigatory power, Congress can keep a close eye on the president, interrogate and publicly shame administration officials, and review many top-secret materials.

  If its investigations reveal troubling information about the president, Congress’s right to share that news with the American people is protected by the Constitution’s Speech and Debate Clause. Under that provision, an array of official acts by legislators and their staffs are shielded from criminal prosecution, civil discovery, and other burdens that might chill their deliberations. As relevant here, the Speech and Debate Clause safeguards the prerogative of individual legislators to publicly release confidential information about the executive branch.

  Savvy use of these oversight powers allows Congress to trigger an even broader network of checks on the presidency. In traditional accounts, the federal system is balanced between three branches of government and a fourth estate, the press. But as Professor Jack Goldsmith has observed, the “modern accountability system” involves a host of decentralized, nontraditional actors. Civic groups at home, human rights groups abroad, lawyers and watchdogs within the executive branch, and new species of journalist hold the government responsible for its misdeeds. Goldsmith notes that these players “help ensure that the other institutions of government know about the president’s actions, can require him to account for them, and can punish him if they think he is engaged in the wrong policy or acting unlawfully.”21 Congress’s power to check the president can thus activate—and be activated by—a broader alarm system around the White House.

  In extreme cases, Congress may seek to restrain the chief executive by carefully raising the question of impeachment. Even when the odds of removal from office are very low, serious legislative consideration of impeachment can strike fear into a president. In 1813, for instance, John Adams confided in Thomas Jefferson that calls for his removal over a decade earlier had offered “a hint or two… on the Subject of Terrorism.”22 Here he referred to the explosive Hermione controversy in 1799. That year, American officials seized and detained Jonathan Robbins, a mutineer on Her Majesty’s armed frigate Hermione. Adams ultimately surrendered Robbins to the British military, despite a last-minute claim by Robbins that he was American. Although Adams remained secure in the presidency, opposition leaders demanded impeachment for this decision and apparently made a lasting impression in doing so.

  As we’ll see in Chapter 5, threats of impeachment talk can raise many difficult strategic questions. So can reliance on any of the other constitutional powers that Congress might invoke to address a rogue president. And there’s no denying that those alternatives may, in some cases, be inadequate to the task of thwarting tyranny. Even when Congress sustains consensus and aggressively asserts itself, a president can always do a lot on his own—especially in the realms of foreign affairs and national security.

  That said, Ezra Klein hit on an important truth when he observed that “Congress is a tiger that we pretend is made of paper.”23 The legislature wields exceptional and wide-ranging powers. With sufficient commitment to country over party, Congress could effectively assert itself against the president and avert the need for impeachment. Identifying when that’s the best option is always a context-sensitive judgment. It may not be an easy call to make; however, it’s a choice we can’t avoid.

  When evidence of presidential abuse comes to light, a resolution of censure may emerge as an attractive middle ground between impeachment and more quotidian legislative checks. Congress unquestionably has the authority to censure a president. The trick is ascertaining what effect, if any, a censure will have.

  Congress’s power of presidential censure isn’t made explicit in the Constitution. Whereas censure of legislators is authorized by the Rules and Expulsion Clause, which empowers each house to “punish its Members for disorderly Behaviour,” no comparable language addresses censure of the president. Still, resolutions of censure are consistent with all relevant constitutional rules. First, because a resolution of censure is merely an expression of opinion rather than an individualized punishment by the legislature, the Bill of Attainder Clause poses no obstacle. Second, while impeachment can result only in removal and disqualification, the Constitution doesn’t forbid other sanctions outside of an impeachment proceeding. Finally, Congress’s duty to “keep a J
ournal of its Proceedings”—considered alongside the Speech and Debate Clause—supports the authority of either house (or both concurrently) to pass a resolution expressing views on public issues.

  A censure may sound like very weak medicine. In many cases, a legislative slap on the wrist is unlikely to convince a tyrant to confess error and mend his ways. Intense skepticism is usually the right attitude toward censure. But history suggests that there are occasions when a resolution condemning the president can send a powerful message.

  Andrew Jackson offers a telling example. In 1832, Jackson vetoed an act to recharter the Bank of the United States and then moved to withdraw all federal deposits. These decisions were enormously controversial and incited a backlash by Jackson’s enemies, who held a majority in the Senate. Led by Henry Clay, Daniel Webster, and John C. Calhoun, they put forth this proposal: “Resolved, That the President… has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.”24 After ten weeks of debate, the resolution passed 26 to 20. Jackson’s fury knew no limits. As a biographer explains, “Jackson could not get it out of his head that a verdict had been rendered against him, and against his vision of the Presidency.”25 Jackson responded to the Senate with a “Protest” defending himself and denying the legality of the Senate’s action. In a stunning breach of protocol, the Senate refused to print or acknowledge the president’s response in its own journal. The House, in turn, passed a resolution criticizing the Senate for its handling of the situation.

  This episode stuck with Jackson. In his Protest, he wrote that the censure was a “judgment of guilty by the highest tribunal in the Union.” It would inflict a stigma “on the offender, his family, and fame… handing down to future generations the story of his disgrace.” To Jackson, these were the “bitterest portions, if not the very essence” of the Senate’s punishment.26 Three years later, when Jackson’s allies retook the Senate, they ordered that the censure text be stricken from the 1834 journal. That night, historians report, “the Senate galleries were so raucous and the atmosphere so tense that [Jackson’s allies] sent for guns.”27 Once the deed was done, a courier rushed to Jackson bearing a poignant tribute: the pen that erased his infamous censure. Needless to say, these were not the actions of people who thought that censure was a mere slap on the wrist. Jackson took it very seriously indeed.

  Less dramatic but no less revealing are two cases where impeachment and censure were debated simultaneously. The first occurred in January 1848, after James Polk sent General Zachary Taylor beyond the Nueces River in Mexico, triggering hostilities without a declaration of war. Whigs in Congress passed a resolution denouncing Polk’s gambit as “unconstitutional.” But they stopped short of calling for impeachment, leading Polk’s defenders to level charges of cowardice: “They have said by their votes that the President has violated the Constitution in the most flagrant manner… and I here demand of them to impeach the President.”28 Incredulous, a Tennessee Whig named Washington Barrow responded: “Impeach the President! Do they take us to be fools?… [Instead we] have placed a rebuke of him upon [the House Journal], which will continue to blister his name so long as he lives, and will be affixed to his memory while the history of the country endures.”29 In Polk’s case, censure didn’t convince the president that he should withdraw American forces from Mexico. Nor did it destroy his reputation in the history books. Instead, it was the only official action against Polk available to a party that lacked the votes to impeach.

  The near opposite dynamic unfolded in Bill Clinton’s case. There, House Republicans did have the votes to impeach the president for his misconduct but feared that a successful censure resolution would lose them their pro-impeachment majority. The issue came to a head in December 1998, when several representatives floated the idea of censuring Clinton rather than impeaching him. House leaders refused to allow a floor vote on any of these proposals. Although dressed in legalese, their objections were based on fear that fence-sitters would switch their votes for impeachment if censure were an option. As it turns out, they were right. Several House members who voted for impeachment later stated that they would have preferred only to censure the president. The Clinton case thus produced an unusual alignment: House leaders opposed censure, while the president, many Democrats, and some Republicans supported it. In fact, Clinton later criticized Republican leaders for refusing to put censure to a vote, emphasizing in his autobiography that censure “was the preferred option of 75 percent of the American people.”30

  As this history shows, censure has an indeterminate character. In some cases, formal legislative condemnation may tarnish a president’s legacy and warn him off from further abuses. Moreover, a censure resolution signals to future generations that the president did something terribly wrong—thus ensuring that his misconduct isn’t cited as precedent. But censures are only worthwhile under highly specific circumstances. Where a president isn’t troubled by his standing in the court of history, and isn’t amenable to course corrections, censure is a largely pointless undertaking that may divert energy and attention from more necessary measures.

  That’s to be expected. The appropriate response to presidential wrongdoing is always context-dependent. Given what the president did, how the president is likely to react, and what the nation will think, Congress must decide between impeachment and alternative remedies. In making this choice, Congress is well-served to thoroughly consider the substantial risks associated with any impeachment. We now turn to that analysis, beginning our discussion with an oft-overlooked point: impeachment isn’t a single decision. This judgment is entrusted to an institution with 535 members, who must continuously reassess their position in real time as the process unfolds.

  Chief Justice William Rehnquist cut a dramatic figure as he presided over the Clinton impeachment. Ever since Thomas Jefferson’s stinging rebuke of “needless official apparel,” Supreme Court justices had all worn plain black robes.31 (Jefferson particularly despised “the monstrous wig which makes the English judges look like rats peeping through bunches of oakum.”) But Rehnquist had personally redesigned his robes in 1995, adding four gold stripes on each sleeve. A lover of operettas, he was inspired by a production of Iolanthe in which the Lord Chancellor’s robe also sported gold stripes. The chief’s colleagues were unimpressed; they had already rejected his plea to upgrade their wardrobes. When the cameras started rolling in January 1999, though, he certainly looked the part of Chief Justice of the United States.

  Rehnquist brought more than a fancy title and flashy robes to the Senate. He was also a bona fide expert on impeachment. Years earlier, in Grand Inquests, he had chronicled the failed efforts to remove Andrew Johnson and Justice Samuel Chase. This study led Rehnquist to view the impeachment power as a “wild card.”32 Improper calls for removal, he worried, risked destabilizing the separation of powers between Congress and the other branches. Overall, the thrust of his book was a stern warning against partisan impeachments. It’s no small irony that he later oversaw the divisive impeachment trial of Bill Clinton.

  In describing impeachment as a “wild card,” Rehnquist offered the right metaphor but an incomplete lesson. It’s true that an impeachment can scramble the separation of powers. But this is hardly the full extent of its power to disrupt. In theory, a bitterly contested impeachment could unravel the very bonds that hold the nation together. Of course, the inverse is no less true. A failure to impeach when faced with tyranny could spell the end of US constitutionalism. In these respects, impeachment can serve as both savior and destroyer of American democracy.

  This duality frames the issue of when Congress should impeach and when it should stay its hand. By their nature, impeachments have the potential to cause and prevent many kinds of harm. It thus makes little sense for anyone to be pro- or anti-impeachment in the abstract. Assessing what might happen in any given case requires a deeply fact-intensive analysis—and an appreciation that impeachments can unleash forces impossible to p
redict or control.

  That’s not the only complication. In analyzing how Congress should exercise its discretion, we must always keep in mind what part of the impeachment process we’re discussing. The American public is not shy about debating whether a president should be removed from office. But that framing of the question begins at the end, putting ourselves in the role of senators voting on self-written articles of impeachment. This habit leads us to gloss over the many choices that legislators must make during a full impeachment process. In roughly sequential order, those include (1) holding public hearings on alleged presidential misconduct; (2) investigating the president; (3) publicly or privately using the “i-word”; (4) designating a committee to consider removal; (5) debating and voting on articles of impeachment; (6) voting in the House on those articles; (7) establishing process and procedure for the Senate impeachment trial; (8) conducting the Senate trial; and then (9) voting in the Senate on whether to convict the president.

  By the time the process arrives at the final step, millions of less-noticed decisions have shaped how we got there and what’s likely to happen next. The factors relevant to each of those choices could occupy books of their own. We’ll simply note that in deciding whether to impeach, we’re considering a series of events, not a single yea or nay vote. This perspective highlights the fact that impeachments are more than direct reactions to bad things the president may have done. They’re dynamic processes in which both Congress and the public play a major role. Every step along the road changes the landscape in ways our analysis must take into account. Legislators’ actions and choices at early stages of the process shape the circumstances under which they act later on.