Pulling this all together: when the nation is confronted by evidence of “high Crimes and Misdemeanors,” there is a point at which not impeaching becomes the more dangerous choice. When that is a possibility, Congress must steel itself for combat. Most important, it should immediately open an investigation so that it can exercise its judgment with an understanding of all relevant facts. It’s incumbent on Congress to assess whether the president can be brought into line or whether he will remain a threat. If only impeachment and removal can safeguard the system and set it aright, then Congress has a duty to act.
Finally, what risks do we face even if Congress impeaches and removes the president precisely when that’s the right move to make?
Power can never be exercised without consequence. That is doubly true for the great powers of the Constitution, including impeachment. When Congress ends a presidency before its natural life span, there’s no avoiding profound and enduring national trauma. If the president’s “high Crimes and Misdemeanors” aren’t widely felt, the removal process itself will be. During an impeachment, important aspects of federal governance are necessarily affected. So are America’s influence and authority in the world, and Americans’ national self-conception. As scholar Jane Chong writes, even when impeachments herald a necessary course correction, they “involve[] a measure of violence from which our constitutional democracy can only slowly and by no means inevitably recover.”35 While the pain may be worth the price, it’s virtually impossible to know in advance. Impeachments take place in a sea of variables that continually shift and reshape themselves. Congress can exercise some control over that process, but not very much.
An unavoidable risk of any impeachment is that the Congress, the president, and the chief justice are diverted from the ordinary business of governing for a prolonged period. To be sure, many aspects of federal administration don’t involve the heads of each branch and would continue uninterrupted. Yet there are always matters that require the nation’s most senior decision makers. For months (or even years), they would devote significant time to an internal crisis of governance rather than to shaping and administering policy. Beset by an impeachment, they may struggle to give other issues, including emergencies, the attention that they deserve. Friends and foes abroad would swiftly notice that America’s leadership is distracted, and our country’s standing in the global community could suffer as a result.
Impeachments are especially hard on presidents. No matter how brave a face they put on, laboring under a grand inquest by the House of Representatives is a brutal, taxing experience. John Adams, as we’ve seen, viewed even hopeless impeachment calls as a lesson on “Terrorism.” And James Buchanan, while protesting demands for his removal, warned that trying the president on articles of impeachment “would be an imposing spectacle for the world.”36 At stake, he pleaded, was not only expulsion from political office, “but also what is of infinitely greater importance to [the president], his character, both in the eyes of the present and of future generations.”
Fear of that judgment can crush a person. In the final days of his presidency, Richard Nixon bitterly observed to General Alexander Haig, “You fellows, in your line of business, you have a way of handling problems like this. Somebody leaves a pistol in the drawer.”37 As historian John A. Farrell recounts in his excellent Nixon biography, senior officials were so concerned by the president’s mental state in August 1974 that they took drastic steps: “To ensure against a military coup, a nuclear Gotterdammerung, or some other frantic act, the secretary of defense instructed the Joint Chiefs that any eleventh-hour orders from the White House must be vetted by the chain of command.”38
Impeachment was also a strenuous ordeal for Clinton—despite the fact that he retained strong public support and allies in the Senate. In his autobiography, My Life, Clinton weaves together the story of his impeachment and the flow of executive business. His thoughts on major policy decisions, missile strikes, and Middle East negotiations are interspersed with detailed renderings of maneuvers to save his presidency. As you might expect, he denies that his judgment was compromised: “The best way to win the final showdown with the Far Right was for me to keep doing my job and let others handle the defense… that’s what I tried to do.”39 But even to a casual reader, Clinton’s pride in his other accomplishments can’t eclipse the overwhelming sense that everything he did was shadowed by impeachment. Every decision could affect the proceedings; every choice could be attacked as an effort to wag the dog. Because Clinton saw congressional attacks as a partisan ploy, he viewed high popularity and the appearance of leadership as crucial to his defense strategy. Impeachment was always in sight.
Obviously, presidents who commit evil deeds and bring impeachments on themselves deserve little pity. Our point here isn’t that impeachments should be avoided because they might upset presidents. Rather, it’s that when the House impeaches a president, it distracts and weakens the commander in chief of the military, our main global emissary, and the head of a vast bureaucracy. Given the president’s singular role in American life and public administration, undercutting our head of state always presents substantial risks—no matter how well justified.
In theory, impeachments can also have long-term consequences for checks and balances. There’s no turning back from such a raw display of legislative power. By effectively decapitating the executive branch, Congress sends a resounding message about limits on the presidency. The precedent it establishes is bound to shape the national mood and constitutional architecture. At the extreme, if Congress were to take an excessively broad view of impeachable offenses, it might tilt our system toward parliamentary rather than presidential democracy.
Without dismissing this point, we should note that it is typically overstated and undertheorized. Reflecting on Johnson’s case, for instance, lawyers often assert that his trial caused a lasting diminution of the executive. Yet as historians remind us, Johnson’s failed effort to consolidate power in the presidency (often through racist, populist appeals) was itself a departure from nineteenth-century norms. And if Congress hadn’t impeached, it would have kept invoking other powers to combat Johnson. The result may have been new and more permanent restraints on the presidency. Moreover, from 1868 until the early 1950s, many politicians saw the Impeachment Clause as a dead letter. To the extent impeaching Johnson made use of this power seem unappealing, it may actually have increased executive authority by tainting the notion of ending a presidency.
Nixon’s case offers slightly more support for the idea that impeachments can redefine the separation of powers. After his resignation, Congress ringed the presidency with innovative limits to thwart abuse of power. Many of the nation’s campaign finance, transparency, and ethics rules date to this period. And nobody would describe Gerald Ford and Jimmy Carter as strong leaders who effectively stood up to Congress. Here, though, it wasn’t the threat of an overreaching, aggressive legislature that kneecapped the executive. Rather, the wound was self-inflicted, and a transformative response was overdetermined after Nixon’s crimes came to light. Within a decade, moreover, Ronald Reagan took office and catapulted the presidency to new heights of dynamism. Partly in reaction to a perceived debasement of the executive branch after Watergate, Reagan and his advisors built new legal theories to justify their sweeping vision of presidential command.
In contrast to the Watergate proceedings, the Clinton impeachment produced no durable effect on the separation of powers. Republicans built their case for impeachment on a decidedly uncontroversial premise: presidents shouldn’t perjure themselves or obstruct justice. Condemning such conduct didn’t budge the status quo or repudiate a novel claim to power by Clinton. In the end, moreover, the Republicans’ impeachment campaign came to be viewed largely as an act of partisan animus. Its ultimate failure thus served only to confirm prevailing and preexisting views of when removing a president is justified under the Constitution.
Based on this history, we believe that impeachment would be most li
kely to reshape the separation of powers under two circumstances. First, if Congress were to successfully impeach and remove a president primarily on the basis of policy or partisan disagreement. And second, if Congress used an impeachment to draw a line in the sand, marking a prohibition against conduct that otherwise might have recurred in future presidencies.
In the thick of an impeachment campaign, however, it may be unclear whether these descriptions apply. Presidents invariably argue that attacks on them are partisan and based on specious principles. Their allies warn that the presidency itself will go down in flames if Congress proceeds. Advocates of impeachment, in response, insist that they’re vindicating neutral, well-understood, and settled requirements. They present themselves as defenders of a balanced system that the president upended through his wrongdoing. The success or failure of an impeachment—and its long-term consequences for checks and balances—hinges largely on which framing of the dispute is ultimately accepted by the American people. But that outcome can be very difficult, if not impossible, to anticipate when an impeachment first begins.
In any event, when gauging the risks of an impeachment, it shouldn’t be presumed that weakening the presidency is automatically a bad thing. There’s nothing magical or necessary about the current distribution of power among the branches of government. If anything, modern presidents probably have too much authority in the US constitutional system, not too little.
This speaks to an important tension that may emerge in impeachment debates. As a president grows more powerful, it simultaneously becomes more important to keep him in check and more difficult to do so. Presidents who have unduly aggrandized their authority will always insist that distracting or weakening them through an impeachment will endanger the nation. That claim, however seductive, cannot carry the day. Whatever other challenges we face, a president who has abused power and corrupted his office cannot be trusted to lead us through them.
The inherent risks of impeachments multiply when we shift our gaze beyond checks and balances in the federal system. As Alexander Hamilton recognized in Federalist No. 65, the prosecution of impeachments “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” Frequently, he added, impeachments will connect with “pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other.”
This prediction led Hamilton to fear that impeachments would be “regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” But his observation also points to a distinct risk: that impeachments will unleash and concentrate the ugliest forces in US politics. Virtually every source of dysfunction in our democracy—hyperpartisanship, dark money, fake news, manufactured outrage, cultural warfare—could be magnified tenfold by an impeachment. Even more than presidential elections, the drawn-out, high-stakes drama of an impeachment proceeding might embitter Americans against one another, further fraying our sense of devotion to a shared national project.
An impeachment might also foment widespread feelings of alienation and disenchantment. Sustained inquiry into scandal, corruption, and abuse in the White House can destroy any remaining faith in politics and politicians. That risk is increased when the president is literally placed on trial. The resulting cynicism may persist a generation or longer, seeping like a poison into American life. Even when that feeling is justified by the failure of political elites, it can have unnerving collateral consequences. Reactionary and extremist politics flourish when Americans abandon established political institutions. More than any other congressional act, impeachments can birth a cycle of angry, existential politics, breaking settled political structures and surfacing latent divisions.
Don’t get us wrong: sometimes that’s necessary. We offer no brief for a “see no evil, hear no evil” mentality. Nor are we so petrified of change that we’d prefer a known tyrant to unknown tumult. As Lord Acton warned, power corrupts—and absolute power corrupts absolutely. In our system of government, only the president can edge close to absolute power. If that happens and results in “high Crimes and Misdemeanors,” removing the president from office would be worth a period of disruptive political reconstruction. Indeed, sometimes the end result may be beneficial. Rallying a majority against an abusive president could trigger productive dialogue about reform and reformation. The dilemma is that we can’t know in advance whether an impeachment will raze or reinvigorate the cultures, norms, and institutions that define our democracy.
The Nixon case exemplifies both possibilities at once. Scholars have shown that Watergate permanently scarred a generation of Americans. Public attitudes toward politics have never recovered. Yet Watergate also unified much of the nation in fury and horror. Familiar political divisions collapsed in a widely shared recognition that the president was a menace. From the ashes of Nixon’s resignation rose new laws to shield integrity in politics.
Perhaps the single greatest risk of any impeachment, no matter how justified, is that a minority will view it as a gussied-up coup d’état. In most cases, the Constitution’s supermajority voting rule for the Senate will help to avoid that outcome. But a president could still be removed with millions of Americans in bitter dissent. Those citizens might simply walk away from our shared democratic project, concluding that their votes and voices don’t matter. Or they might drift ever more deeply into revolutionary politics, concluding that our democracy is rotten to the core. In the worst of all worst cases, they might even take up arms—especially if the ousted president refuses to depart gracefully and instead terrorizes the polity that rejected him.
If this sounds extreme, recall that we’ve already seen such threats from allies of President Trump. Roger Stone, for instance, has predicted that impeaching Trump would cause “a spasm of violence in this country, and insurrection, like you’ve never seen.” “Both sides are heavily armed,” he added, so politicians voting to impeach Trump “would be endangering their own life.”40 While we doubt Stone knows of what he speaks, his threats remind us that we’ve never seen a president removed from office under protest. Nixon resigned and then retreated to California, where he paced the beach of San Clemente in solitude. Not every president would go quietly into the darkness. That, too, is an unavoidable risk of impeachment.
Like many foreign scholars before him, Viscount James Bryce was fascinated by the constitutional power to end a presidency. After careful study, he concluded: “Impeachment… is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at.”41
The Constitution never requires Congress to deploy this weapon. Instead, it puts the option on the table and vests Congress with virtually unlimited discretion in deciding whether (and how) to use it. By virtue of that design, Congress cannot escape final responsibility for the prudent exercise of power. Legislators should therefore acknowledge the judgments they must make and address them forthrightly in dialogue with the public.
Indeed, some especially thoughtful members of Congress have described their role in exactly these terms. Consider this statement by Representative Jerrold Nadler, currently the top Democrat on the House Judiciary Committee:
[I]f we decide that the evidence isn’t there for impeachment—or even if the evidence is there we decide it would tear the country apart too much, there’s no buy-in, there’s no bipartisanship and we shouldn’t do it for whatever reason—if we decide that, then it’s our duty to educate the country why we decided it.42
Although these remarks referred specifically to a possible Trump impeachment, the general decision-making process that Nadler described reflects the major lessons of this chapter. It also displays a commendable understanding that Congress must respond to voters while also affirmatively educating th
e public about when impeachment is appropriate.
In that respect, and many others, Congress must take the lead in ending an abusive presidency. When confronted by evidence of “high Crimes and Misdemeanors,” Congress should immediately open a comprehensive investigation to ensure that its judgment can be applied to a correct view of the facts. If the House finds that the president has committed arguably impeachable offenses, it should deliberate alongside the nation and consider whether any steps short of impeachment may suffice. At that time, the House must consider all the risks of impeachment—those discussed here and many more—and set a course that it deems in the best interest of the Republic. If the House decides that impeachment is necessary, both houses of Congress should act at every step to keep the process fair and legitimate, which may help hold the nation together.
By their nature, attempts to end a presidency are traumatic. As Senator Byrd acknowledged in the Clinton proceedings, there may be “no happy ending, no final act that leads to a curtain call in which all the actors link hands and bow together amid great applause from the audience.”43 We can hope only that the nation survives with its spirit intact and the strength to rebuild all that’s been broken.
4
CONGRESS, THE DECIDER
Whether our nation’s leader is being elected or removed, it goes without saying that who decides the identity of the American president makes an enormous difference. Never has this been clearer than on December 12, 2000, when five Republican-appointed Supreme Court justices decided that George W. Bush, a Republican, would be the forty-third president.1 The constitutional reasoning offered to justify this outcome was hard to credit. The justices in the majority had spent decades advocating judicial restraint, deference to states, and a very narrow view of the Equal Protection Clause. Yet suddenly, they turned that jurisprudence on its head, reversing a decision by the Florida Supreme Court to continue counting certain disputed ballots. Even many conservatives blushed at the Court’s results-oriented analysis. When later challenged, Justice Antonin Scalia rarely bothered invoking the Constitution. Instead, he barked at critics to “get over it,” asserting that the Court had risked its neck to save a nation in crisis. “We were the laughing stock of the world,” he said. “It was becoming a very serious problem.”2
To End a Presidency Page 13