To End a Presidency

by Laurence Tribe

  Of course, Congress is hardly a monolith. When we say that “Congress” must make decisions, we’re really saying that hundreds of legislators must separately and collectively pick a course of action. To be sure, those legislators are organized by political party and membership in various committees, caucuses, and leadership structures. But this organization often looks more impressive on paper than it feels on a day-to-day basis. Accordingly, individual legislators may not know how their colleagues will vote—and may thus struggle to ascertain the likely consequences of their own decisions. Amid fast-moving developments, power in Congress is everywhere and nowhere.

  In short, impeachment analysis is fact intensive, constantly evolving, and partly recursive. Nonetheless, it’s possible to identify some general guideposts. We’ll do so here by asking three questions: What are the risks of impeaching too quickly? What are the risks of impeaching too late (or not at all)? And what risks are unavoidable even in a justified, well-timed impeachment? Although somewhat artificial, this framework can help us identify some of the most important considerations in any debate over impeachment.

  Let’s start with the risks of moving too quickly.

  How might that come to pass? In general, we suspect most people agree that impeachments should be careful, deliberative, and thorough. But when we’re faced with crisis, or when partisans sense blood in the water, caution can fall by the wayside. Ours is not a patient culture. If support for impeachment grows, a public addicted to speed may chafe at the tedium of congressional process or Justice Department investigators. It’s in the heat of such passion that Congress might buckle, forgetting that we can’t afford to screw up an impeachment.

  A significant risk of moving too quickly is sacrificing a complete investigation. In most cases, only fools or hacks approach impeachment with their minds inalterably made up. Before removing a president, it is necessary to see the full picture that compels such rough treatment. Except in the most extraordinary circumstances, impeaching with a partial or plausibly contested understanding of key facts is a bad idea. We may subsequently learn new information that casts the whole course of events in a very different light. Moreover, the House might rush to judgment but then fail to prove its case in the Senate—or in the court of public opinion.

  That’s why a neutral entity, trusted by a broad cross-section of the public, must be given time, resources, and investigatory powers to build a reliable factual record. Historically, the House and Senate have investigated through their committees. They’ve also relied on evidence from special prosecutors, independent counsels, and ad hoc commissions. Effective investigations, however, usually take months or years. To achieve their purpose, they look beyond whether crimes were committed and instead assess the full scope and circumstances of potentially impeachable conduct. Critically, although they may involve occasional public hearings, most investigatory activities must be kept secret until they have nearly reached an end. Impeaching before these investigations have concluded may prevent the creation of a complete and respected account of what the president allegedly did wrong.

  If Congress moves quickly to impeach, it may also lose a different source of useful information: the president’s response to allegations of wrongdoing. Does the president admit error, apologize, and clean house? Does he prove his innocence, or at least his reasonable good faith? Or does he lie and obstruct until the bitter end? Maybe he fires investigators and stonewalls prosecutors? If ordered by a court to take an action or to abate illegal conduct, does he comply in good faith or does he defy the judiciary, either overtly or by a mere semblance of compliance?

  These data points are invaluable when Congress asks whether leaving the president in office would pose a continuing threat to the nation. They can also clarify why the president did what he did and shape public views on whether he remains a viable leader. In some circumstances, moreover, the president might commit additional high crimes while trying to conceal his misconduct. A race to impeachment may thus deny Congress insights that can be gleaned only from the president’s real-time reaction to a national inquiry.

  Indeed, how the president handles scrutiny might reveal whether he’d accept alternative forms of corrective action. In the face of high crimes, it’s easy to assume that half measures are inadequate. That assumption, though, may be unfounded. Many forms of presidential wrongdoing are effectively redressable through ordinary uses of legislative or judicial power. In assessing whether options short of impeachment will suffice, it’s essential to know whether the president will go to war with the other branches rather than tolerate new limits on his authority. The answer to that question, moreover, might evolve as the terrain shifts during an impeachment inquiry. Presidents who initially respond with denunciation or outright defiance may suddenly crack under mounting pressure. The very first steps of an impeachment can thus reveal both that the president abused his power and that removing him from office isn’t necessary.

  Shooting from the hip on impeachment is also dangerous because it can short-circuit public deliberation. Mustering two-thirds of the Senate is no easy task. For this to occur, and to avoid a crushing backlash, there must be a relatively durable bipartisan consensus in support of removal. Even for a president with low popularity ratings, that kind of national will takes time to emerge. The process of impeachment, drawn out through investigations, hearings, and debates, allows the nation an opportunity to deliberate. If the process functions well, Congress may account for a more mature public sentiment than could have existed beforehand. In contrast, if the process is seen as hasty, incomplete, or illegitimate, Americans may lose faith in it. Worse, they may close their minds to new evidence, freezing attitudes before all the facts are in.

  While evaluating alleged presidential misconduct, Congress must carefully avoid crying wolf. If legislators are quick on the trigger in urging impeachment—or in suggesting that possibility—each subsequent call may be taken less seriously. A nation constantly warned that the president is a despot can grow numb to those accusations, especially if prophesies of doom aren’t immediately realized. That’s why Congress should always tread carefully around references to removing the president. When impeachment talk is normalized as an aspect of partisan discourse, it is easily trivialized. Promiscuous invocation can thus prevent the impeachment power from achieving its purpose. (As we’ll see in Chapter 5, this concern is now at a historical high point.)

  Ultimately, the greatest risk of striking too early is that Congress might fail where it should succeed. Impeachment is not a bullet that can be readily fired twice during a single presidency. The resources and energy that must be marshaled for a Senate trial on articles of impeachment are too great for the nation to sustain them year after year. If Congress shoots and misses, the president will be practically untouchable. Wounded but not dead, the president could pursue his worst and most tyrannical impulses without fear of premature expulsion from office. History teaches that abuse of power rarely ceases of its own accord. The nation would thus remain in grave and continuing danger.

  In short, the risks of impeaching too quickly are significant. Which raises a question: How can we tell when we’re moving too quickly? Abusive presidents and their supporters will insist until the end of time that it’s too early to consider such drastic measures. Their victims and political foes, in contrast, may start pounding an impeachment drum while the oath of office is sworn. Responsible legislators may struggle with when to finally declare, “Enough!”

  This is where generalizations start running dry—and where it’s vital to recall that different stages of the impeachment process present their own questions. Tweeting #ImpeachPOTUS isn’t the same as voting for articles of impeachment. Over time, legislators properly assign different weights to the importance of gathering information, seeing how the president responds, gauging the political landscape, and allowing citizens to deliberate. That calculus must also be informed by the nature of the impeachable offense. If the president has a twitchy thumb near t
he nuclear codes, impeaching him yesterday wouldn’t be too quick. But if he doesn’t threaten immediate damage, and if Congress can otherwise stabilize a crisis, it may be worth taking time to build an unassailable case. Beyond that, the Constitution offers no magic formula. Knowing when it’s too early is ultimately a matter of judgment.

  What about the risks of moving too slowly, or not at all, when the president is believed to have committed impeachable offenses?

  Specificity is elusive here. The risks of not impeaching are as diverse as the forms of potentially impeachable conduct. Failing to remove a chief executive who is secretly a Russian agent could be catastrophic. Declining to remove a president who has obstructed investigations into his son’s tax fraud would be harmful, but not earth-shattering. In theory, the risks of a decision against impeaching the president for high crimes range from very bad consequences to the destruction of the nation and the death of millions.

  If abiding the president’s abuses doesn’t pose risks within that spectrum, then those abuses aren’t really “high Crimes and Misdemeanors.” Impeachable offenses are necessarily defined by substantial risk of future danger. While backward-looking in its assessment of specific acts already committed by the president, the orientation of an impeachment is primarily prospective and probabilistic. The all-important question is whether we must remove a leader whose continuation in office poses a grave risk.

  Consider Andrew Johnson’s case. The House spent years locked in a scorched-earth battle with the president before deciding that it had to impeach him. Failing to take that step would have left the federal government at war with itself. These escalating interbranch hostilities risked permanently destabilizing the separation of powers. More important, leaving Johnson in office would have allowed him to continue destroying rights and programs crucial to a fragile nation. Left to his own devices, Johnson could have undone still more of the Union victory and might well have pointed the nation toward further bloodshed. Under these circumstances, Congress properly concluded that the risks of not impeaching were overwhelming. While the effort to oust Johnson didn’t succeed, it achieved its primary goal. In exchange for a few key votes in the Senate, he acceded to most of Reconstruction and appointed moderates to his cabinet.

  If the House hadn’t impeached Johnson in 1868, it risked leaving the country stuck with a leader who pretended to hold exceptional power but couldn’t actually lead. This concern may arise in other cases, too. A president seen as a villain will hemorrhage legitimacy—the lifeblood of effective presidential leadership. He may also discover that Congress, the judiciary, and his own bureaucracy are willing to take extraordinary measures to control his authority. Disabled, but still vested with “the executive Power,” that wrongdoer in chief would be forced to resign or to stumble along, presiding over a resistant and ungrateful nation. Although alarming under any circumstances, a collective loss of trust in the chief executive could be disastrous were a crisis to occur. There are times when the nation urgently needs a leader who can capably perform all the duties of the office. In some cases, declining to impeach may leave the ship of state without a functioning captain.

  A related concern is that presidents weakened by proof of “high Crimes and Misdemeanors”—and laboring under the shadow of potential impeachment—may take desperate steps to regain authority. Even when compromised by public knowledge of their misdeeds, presidents command a bully pulpit, the military, and endless ways to reshape the narrative. It’s hard to imagine a crooked president, or one with an outsize ego, simply resigning himself to irrelevance. More likely, he’d try to assert control, even if that required new and creative abuses of power. As a result, we could never know whether to trust him again. His every action, no matter how legitimate, would be undermined by suspicion of ulterior and unsavory motives.

  The United States faced a version of this problem in the late 1990s. First came Wag the Dog, a dark comedy in which a spin doctor distracts voters from a presidential sex scandal by inventing a fake war with Albania. Then, only a few weeks later, came news of Clinton’s relationship with Monica Lewinsky. And then, six months after that announcement, came Clinton’s missile attacks on targets in the Sudan and Afghanistan. At the time, Clinton’s critics raged about a devious effort to shore up his popularity and distract the public. Looking back, that criticism isn’t compelling. Clinton’s targets were all associated with Al Qaeda and Osama bin Laden. But following news of Clinton’s trysts, his opponents openly wondered whether his military judgments, sexual escapades, and public relations tactics had cross-fertilized.

  Of course, a weakened and unreliable president isn’t the only potential downside of inaction. Failing to impeach a president for “high Crimes and Misdemeanors” may result in irreparable damage to the constitutional system. That is particularly clear when the impeachable offenses at issue undermine democracy or threaten the separation of powers. In such cases, only by removing the president from office can Congress undo the immediate damage and prevent continuing constitutional harm.

  Furthermore, declining to impeach for “high Crimes and Misdemeanors” may forever change how the American people understand their own democracy. People aren’t good at living with tension. If they decide to support the continuation of a presidency despite evidence of misconduct, they will be motivated to believe in the wisdom of their own decision. This feeling can distort and mitigate whatever disgust they originally felt toward the president. Eventually, to avoid cognitive dissonance, many Americans might come to view the president’s wrongdoing as tolerable, or even admirable. When the sun keeps on rising, their original moral revulsion may fade into a sense that the president’s abuse wasn’t really so bad. Legislators and journalists may be especially susceptible to this pressure: while resisting impeachment calls, they may come to view their fates as enmeshed with the president’s and thereby lose perspective on the gravity of his misdeeds. As solid red lines dissipate in a haze of convenience and rationalization, abuses that once seemed unthinkable can be normalized. The president might even be praised for his next impeachable act, and the one after that.

  Declining to impeach for severe misconduct can also establish many kinds of bad precedent within the federal government. Presidents tend to move forward rather than backward in their claims to power. Decisions not to impeach signal to future chief executives that they, too, can cross whatever bridge proved safe for a predecessor. Worse, such decisions may later be cited as proof that the president didn’t really commit “high Crimes and Misdemeanors,” thus permanently raising the bar on what counts as an impeachable offense.

  But the harm doesn’t stop there. Tolerating corruption and abuse of power in the White House sends a terrible message. It may lead other officials and bureaucrats to ask, If the president can do this, why can’t I? That’s how destructive cultures take root in the halls of power. And it can stoke cynicism about governmental ethics and integrity that lasts for decades.

  House Republicans repeatedly cited this concern in their case against Clinton. Indeed, Representative Henry Hyde highlighted it in his closing argument: “The issues we’re concerned with have consequences far into the future, because the real damage is not to the individuals involved, but to the American system of justice, and especially the principle that no one is above the law.”33

  To Hyde’s credit, this wasn’t a trivial or unreasonable point. Clinton’s conduct had sent exactly the wrong message about the rule of law, respect for women, and basic decency. Ultimately, though, many Americans concluded that removal wasn’t justified on those grounds alone. In their view, the impeachment process itself had offered a more than sufficiently harsh rebuke for Clinton’s wrongdoing. The president’s offenses, moreover, didn’t portend national peril if he were allowed to serve out the remaining twenty-two months of his term. As Professor Keith Whittington has noted, Clinton was “a generally competent president who could be trusted to exercise the duties of his office in a manner that was within normal bounds of politica
l tolerance.”34

  Needless to say, all of the risks discussed so far pale in comparison to the worst-case scenario: that by sitting on our hands and not impeaching, we destroy civilization itself. That isn’t intended as hyperbole. Impeachment is the final limit on a person who commands the most powerful military, largest nuclear arsenal, and most deadly cyberwarfare capabilities on the planet. In the twenty-first century, all that’s truly required for global disaster is the kind of president who would needlessly launch or trigger cataclysmic warfare.

  Shy of global Armageddon, not impeaching for the highest of “high Crimes” also risks the end of our constitutional order. This nightmare could take many forms. Most of them would involve the president corrupting the electoral system to his own advantage. Along the way, the president would presumably violate many other rights and degrade democratic institutions. Maybe there would even be a steady beat of impeachment calls, defeated or dismissed until the president’s abuses are substantially normalized. Eventually, the president and his allies in Congress would openly wonder whether we really need to hold elections at all.

  Here we encounter a tragic aspect of the impeachment power: as democracy itself strains under presidential assault, impeachment may grow both more imperative and more dangerous. If a tyrannical president sabotages free speech, voting rights, and fair elections, the nation may reach a point where only impeachment can save it—but where our political system can’t withstand the strain of an impeachment (or muster the will to undertake one). By the same token, populist demagogues who sow discord and division can nurture tyranny even as they destroy the political consensus necessary to thwart it. Impeachment is a mighty weapon, but also an imperfect one.