To End a Presidency

by Laurence Tribe

  It all begins in the House. The most important thing to understand about the House is that it runs by majority rule. As a result, whichever party controls the House also controls impeachment, so long as its members are willing to vote with their leadership. The House can alter almost any of the rules that we’re about to describe, which are based on past practice.

  There are many ways to initiate an impeachment. For example, the House may choose to act on a citizen petition, a grand jury charge, or the request of a state legislature. In the late twentieth century, federal law also permitted the appointment of an “independent counsel” whose authority included impeachment referrals to the House. Independent Counsel Kenneth Starr acted pursuant to these provisions when he submitted his report on Monica Lewinsky and Whitewater. But Starr’s handling of Clinton’s case, among other debacles, inspired devastating criticism of the independent counsel law. When those provisions lapsed in 1999, Congress did not renew them. Ever since, sensitive cases involving abuse of power have been instead handled by “special counsel” pursuant to Department of Justice regulations. Although these regulations are silent on impeachment referrals, there are many ways for a special counsel to raise alarms in Congress.

  In any event, impeachments are usually triggered through a more mundane process: the filing of a resolution by a member of the House. In Andrew Johnson’s case, Representative Thaddeus Stevens prevailed on the House to create a Joint Committee on Reconstruction, which swiftly called for Johnson’s removal. The House passed that resolution 126 to 47, and then established a committee to draft articles of impeachment. In Richard Nixon’s case, the House was a tad more direct: it passed a resolution authorizing the Judiciary Committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to impeach President Richard M. Nixon.”38 After performing a comprehensive investigation, the committee approved three articles of impeachment, though Nixon resigned before they reached the full House. Finally, in Bill Clinton’s case, the House followed its Nixon precedent and passed a resolution authorizing the Judiciary Committee to investigate impeachment. Relying on a report from Independent Counsel Starr, the committee drafted four articles. Representative Henry Hyde then proposed those articles as a resolution in the full House; by majority vote, the House ultimately approved two of them (perjury and obstruction of justice).

  As this summary suggests, the House traditionally addresses most matters relating to presidential impeachment through its committees. The Judiciary Committee plays an especially important role. It usually takes the lead in investigating misconduct and drafting articles of impeachment. In that process, it isn’t bound by technical rules of evidence or an agreed-upon definition of “high Crimes and Misdemeanors.” Instead, its members have broad authority to subpoena documents, call witnesses, hold hearings, make legal determinations, and undertake any other activities necessary to fulfill their mandate. Congress’s investigatory powers are at their zenith in the realm of impeachment. They should ordinarily overcome almost any claim of executive privilege asserted by the president. In addition, the committee is free to make use of evidence provided by a special counsel. Ultimately, the committee must decide what the president did, whether that conduct is impeachable, whether impeachment is warranted, and what articles of impeachment (if any) to propose to the full House.

  Because they’re where major decisions get made, House committees should work hard to build and maintain public credibility. Historically, however, they have taken inconsistent approaches to their role. The Joint Committee on Reconstruction didn’t dwell on technicalities: given Johnson’s decision to fire Secretary of War Edwin M. Stanton, it immediately concluded that he had violated the Tenure of Office Act and recommended impeachment. In contrast, the Judiciary Committee devoted extraordinary resources to investigating Nixon. It established a special staff to focus on impeachment, hired John Doar as special counsel, and spent ten months engaged in intensive fact-finding. It also deliberated over the standard for “high Crimes and Misdemeanors” and prepared scholarly reports on the history of impeachment. Many of its most important decisions were bipartisan, and the committee allowed Nixon’s defense lawyer—James St. Clair—to participate in its proceedings. Unfortunately, the Judiciary Committee acquitted itself less well in Clinton’s case. Relying almost completely on the allegations set forth in the Starr Report, it failed to undertake independent fact-finding. After a series of ostentatiously partisan hearings, dominated largely by questioning of Starr and testimony from legal academics (including one of us), the committee passed four articles along party lines. This process set an ugly tone that contributed to the Clinton impeachment’s eventual failure.

  When presented with proposed articles of impeachment, the House may hold a floor debate and then vote by simple majority on each article. If the articles fail, the president is not impeached. That has happened several times. As we’ve noted, the House rejected two of four proposed articles in Clinton’s case. And before Johnson was finally impeached, the House rejected multiple resolutions—including one backed by the Judiciary Committee—calling for his impeachment. On many other occasions, the House has effectively killed impeachment resolutions from individual representatives by voting them down, tabling them, or burying them in committee. As we’ll discuss in Chapter 5, that occurred under Thomas Jefferson, Grover Cleveland, Herbert Hoover, Harry Truman, Ronald Reagan, George H. W. Bush, and George W. Bush. It has also occurred several times since Donald Trump took office.

  If the full House approves articles of impeachment, it must select “managers” from among its ranks to serve as prosecutors in the Senate. The managers typically should be supporters of impeachment and can be chosen in several ways: general ballot, a resolution naming individual members, or selection by the Speaker of the House (though only if the Speaker has been so authorized by resolution). There are few fixed requirements. The House can set its own criteria for selecting managers and assigning responsibilities. In Clinton’s case, for instance, the House chose thirteen Republicans as managers—though many of them lacked the temperament or skills necessary to prosecute a case, and thus harmed their own cause. Clinton, in turn, hired five all-star professionals as his private defense attorneys. While the Constitution is silent on this point, the Senate has long allowed the president to defend himself through counsel. That’s a sensible rule. When impeachments arrive at the Senate, they enter a strange and disorienting world.

  Traditions define the Senate. The rules that it devised for Johnson’s impeachment trial in 1866 were used, almost verbatim, for Clinton’s trial in 1998. The major difference is that there are now one hundred senators rather than fifty-four (in 1866), or twenty-six (in 1789). As anyone who has served on a jury knows, it’s hard enough to decide tough cases when there are only twelve decision makers. Organizing one hundred people into an effective, deliberative court is almost impossible—especially when dealing with larger-than-life personalities. Still, the Senate soldiers on, aided by a culture of decorum and a flickering sense of national responsibility.

  The Senate’s role begins when it is formally notified by the House that articles of impeachment have been approved. The Senate must inform the House when it is ready to first receive the managers. Subsequently, the managers appear before the bar of the Senate to orally accuse the president of “high Crimes and Misdemeanors,” and to “exhibit” the articles of impeachment against him.

  The Senate then summons the chief justice, who replaces the vice president as the Senate’s presiding officer. This is essentially a conflict of interest rule: the vice president would ascend to the presidency upon a conviction, so he is excluded from any role in the president’s trial. Today, we might expect that the vice president’s ambition could be slightly counterbalanced by loyalty to his running mate—though it’s hardly clear that adding another, competing conflict of interest solves the problem. But in 1789, a very different concern prevailed. Before passage of the Twelfth Amend
ment, the vice president was whoever received the second-most votes in the Electoral College. Because the Framers did not anticipate that political parties would organize partisan tickets, they worried that the Electoral College might sometimes pick the president’s arch-rival (rather than his trusted ally) to serve as vice president. If that were to occur, the vice president would have everything to gain—and little to lose—from a verdict against the president.

  Notably, this is the only impeachment-related conflict of interest rule made explicit in the Constitution. Other recusal decisions depend entirely on individual assessments of fairness and integrity. Pursuant to those principles, when House members have participated in impeachment votes and have then been elected to the Senate, they have nearly always recused themselves from the trial.39 But some politicians have displayed less zeal for ethics. In Johnson’s impeachment, for example, Senator Benjamin Wade refused to step aside even though he was next in line to the presidency under then-operative succession rules. At that same trial, the presiding chief justice, Salmon Chase, nurtured a burning presidential ambition. Yet there’s no evidence that he considered recusing himself. Although we don’t endorse these decisions, we’ve described them to show that swapping the vice president for the chief justice doesn’t fix all conflicts.

  Once the chief justice has arrived in the Senate, but before consideration of the articles, each senator must swear a special oath: “I solemnly swear (or affirm) that in all things appertaining to the trial of the impeachment of [the president], now pending, I will do impartial justice according to the Constitution and laws: So help me God.” Although the Constitution provides that senators “shall be on Oath or Affirmation” when trying impeachments, this language was devised by the Senate itself.

  Oaths may sound trite or chintzy, but they help to personalize and internalize the responsibilities of constitutional law. As Professor Richard Re explains, “for each official, the critical moment of constitutional obligation is the moment of taking the oath and thereby promising to adhere to a certain role defined by certain powers and duties.”40 Most famously, the president swears a constitutionally specified oath of office, the only one that the Constitution spells out word for word: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” In addition, Article VI requires that all state and federal officials “shall be bound by Oath or Affirmation, to support this Constitution.”

  It’s therefore striking that the Framers added an extra oath here. After being sworn into office, legislators can exercise all their other powers without taking additional oaths. Indeed, House members can debate and vote on articles of impeachment in the ordinary course of business. Only in the Senate, and only for impeachments, is a further oath required. The Constitution thus impresses on each senator the unparalleled gravity of his or her decision in the case at bar. It also signifies that the Senate now sits as a court rather than as a legislative body and can exercise adjudicative powers elsewhere denied to it.

  With the chief justice presiding and all members sworn, the Senate issues a writ of summons to the president. That sets in motion any pretrial pleadings that the parties may wish to file. Then the trial begins. Lawyers for both sides make opening and closing presentations, each of which can last many days. They may offer whatever evidence and argument the Senate sees fit to allow. If evidentiary questions arise, the chief justice may rule on them himself or put the issue to a vote of the Senate. If the Senate disagrees with any decision by the chief justice, it can overrule him. In Clinton’s trial, Chief Justice William Rehnquist issued only a single substantive decision: that the House managers had to “refrain from referring to the Senators as jurors.” Rehnquist otherwise kept a low profile. He later quipped, “I did nothing in particular, and I did it very well.”41

  Impeachment trials can be taxing for senators. In most settings, they spend the bulk of their time speaking and glad-handing; suddenly, their main role is to sit silently and pay careful attention. For some, staying awake throughout the proceedings proved too much of a challenge during the Clinton trial. Senators can’t even ask questions directly. Rather, they must submit them in written form to the chief justice, who poses them orally to the lawyers and witnesses.

  Of course, that assumes there are witnesses. The Constitution doesn’t give the House, or the president, any right to present specific kinds of evidence. Nor does it prescribe rules of evidence. Here, too, the Senate must exercise judgment. In Clinton’s trial, it initially appeared that no witnesses would testify. Only after a party-line vote, with Republicans in the majority, did the Senate compel Monica Lewinsky, Vernon Jordan Jr., and Sidney Blumenthal to appear. The three witnesses were then deposed privately, with tape recordings made available to senators in a secure room. Nobody offered live testimony in the Senate chamber at any point during the Clinton impeachment trial. The proceedings consisted largely of opening and closing statements, three private depositions, and over 150 questions posed orally to lawyers for both parties.

  Even without courtroom drama, impeachment trials raise sensitive questions about transparency. Under Senate rules, most of the proceedings—including evidentiary submissions and oral presentations—are open to the public. The senators’ deliberations, however, occur in closed session. In this respect, they are like the Supreme Court’s private conferences. But unlike the Court, the Senate does not later release any reasoning to explain its decision. After deliberations conclude, the Senate votes separately on each article of impeachment. Senators may vote guilty or not guilty. (In Clinton’s case, Senator Arlen Specter of Pennsylvania cited Scottish law to cast a third ballot—“not proven”—which was recorded as a vote of not guilty).42

  If the president is convicted on any article of impeachment, he must be removed from office. The Senate may then vote separately on whether to disqualify him from future office-holding. It may not consider any other punishments or sanctions at that time.

  In structuring impeachment proceedings, the Senate has virtually unbounded discretion. The Senate’s “sole Power to try all Impeachments” thus includes the authority to redefine or eliminate almost every standard feature of a judicial trial.

  This issue arose in Clinton’s case. From day one, it was clear that the House managers could never convince sixty-seven senators to convict the president. Dreading the prospect of a full-blown trial, Senate leaders spent weeks debating an alternative associated with Senators Slade Gorton (Republican) and Joseph Lieberman (Democrat). Under this creative proposal, the Senate would hold a preliminary vote after hearing opening statements. If none of the articles received two-thirds approval—a foregone conclusion—then the Senate would end proceedings right away, without hearing testimony or further argument. At first, the Gorton- Lieberman proposal commanded strong support. And when the plan ultimately collapsed, it did so not because of any legal defect but because outraged House Republicans browbeat their Senate colleagues into allowing a broader presentation.

  Here we encounter one of impeachment’s most striking oddities. The Senate must “try all Impeachments.” But its proceedings needn’t be anything like judicial trials, which have been refined over centuries to achieve fairness, accuracy, efficiency, and many other goals. The Senate itself must decide whether and to what extent the strictures of the Due Process Clause even apply to impeachment trials. More broadly, the Senate must decide what it means to “try” an impeachment, knowing it’s almost unimaginable that the Supreme Court would review any decisions it makes. Thus, as attorney Russell Spivak has remarked, “the rules… are governed by the whims of the 100 men and women with offices in the Dirksen, Hart or Russell buildings.”43 While senators agreed in Clinton’s case to use a general procedural framework first designed for Johnson’s trial, they exercised creativity and discretion where those rules didn’t squarely address the question at hand.

  G
orton-Lieberman was an especially extreme example of how the Senate might reimagine a trial. Now let’s consider something more pedestrian. Under most circumstances, judges neither collaborate nor communicate off the record with parties appearing before them. Doing so would normally be regarded as fatal to the integrity of the proceedings. But these rules don’t necessarily apply to impeachment trials. During Clinton’s case, for example, Republican senators regularly huddled with the managers (and their allies in the House). Democratic senators, in turn, kept in frequent contact with the president’s team to plan strategy. Some senators even turned double agent. According to Clinton, “one Republican senator who was opposed to impeachment kept us informed of what was going on among his colleagues.”44 The relentless swirl of innuendo around Washington, DC, meant that the Senate simultaneously plotted with parties and judged their case.

  A related anomaly in Clinton’s trial was the absence of a gag rule, which later led Judge Richard Posner to denounce the proceedings as “a travesty of legal justice.”45 In a normal case, the judge waits until the end to announce the ruling. Not here. Before and throughout the Clinton trial, many senators took strong public positions on the ultimate issue of conviction. The senators’ incessant, self-congratulatory rhetoric about their own open-mindedness therefore rang hollow. Moreover, as Judge Posner observed, “the normal order of a trial—hearing, then verdict—was reversed, just as [in] Alice in Wonderland. Having made up their minds before hearing the evidence and arguments, the Senators were inattentive as well as biased adjudicators.”46