To End a Presidency

by Laurence Tribe

  Yet another peculiarity in Clinton’s trial was the absence of an agreed-upon standard of proof. In most civil cases, the plaintiff must prove it’s more likely than not that the defendant broke the law. Put differently, the plaintiff must establish her case by a “preponderance of the evidence.” Criminal cases work differently. There, prosecutors must convince juries of guilt “beyond a reasonable doubt.” Given how hard it can be to prove that a person engaged in willful wrongdoing, there’s a world of difference between “preponderance of the evidence” and “beyond a reasonable doubt.”

  Scholars have long debated the appropriate standard of proof in an impeachment trial. Everyone agrees that the House must prove its case by more than a fifty-one/forty-nine margin. It would be crazy to end a presidency on the basis of a razor-thin probability that the president committed “high Crimes and Misdemeanors.” On the other hand, requiring proof beyond a reasonable doubt would set the bar too high. We’re not obliged to leave a president in power when the Senate believes that he almost certainly committed treason but can’t escape a hint of doubt. That strict rule would defeat impeachment’s purpose of securing the nation against threats from the Oval Office. So what’s the standard? We favor Professor Charles L. Black Jr.’s charmingly noncommittal view that managers must prove the president’s guilt by “an overwhelming preponderance of the evidence.”47 To this, we’d add just one important caveat. Where the president is accused of conduct that suggests imminent and existential peril if he remains in office, it would be proper to gently lower the evidentiary threshold.

  One reason scholars still debate this question is that the Senate has never seen fit to answer it. Exercising its treasured power of nondecision, the Senate has affirmed that each senator can adopt his or her own standard of proof for impeachment. In fact, the Senate has taken this approach to many substantive questions that arise during the proceedings. The result is that impeachment trials involve one hundred judges with different views about making public statements, coordinating with the parties, setting a standard of proof, evaluating evidence, and defining “high Crimes and Misdemeanors.” Unlike judicial trials, where most procedures and standards are knowable in advance, impeachments are tried before a court that often lacks consistent or agreed-upon rules, changes them midway, or refuses to reveal them to the parties. Greg Craig, one of Clinton’s lawyers, recalls that “when the Senate decided what the rules were going to be for our trial, they really made them up as they went along.”48

  It would give the Senate too much credit to describe the absence of rules as based entirely on respect for each senator’s individual prerogatives. That’s only part of the story. A more important factor is that impeachments strain Congress’s institutional capacity. The House is not a district attorney’s office. The Senate is not a court. People aren’t elected to those bodies because they possess the skills, training, or temperament we’d expect of prosecutors and judges. Focused on the ordinary business of government, Congress has few incentives to maintain the resources or expertise necessary for a smooth impeachment process. Further, true to their political instincts, legislators prefer to keep all options open. Committing in advance on major questions can tie their hands later, when it might be convenient to take a different view. This would never fly in a court of law, where the parties have a right to regular procedure. But in the House and Senate, important aspects of the impeachment process are always up for grabs.

  In describing the ad hoc quality of impeachments, we don’t mean to suggest that due process has no role in this story. Far from it. Congress’s discretion only makes it more important that legislators adhere to values of justice and fair play. That’s true both of the procedures they establish and the substantive decision they render on removing a president. Legislators will always scheme and skirmish. Party loyalty doesn’t dissipate overnight. But ultimately, the House and Senate have a constitutional duty to reach an equitable, well-supported outcome that can be accepted as legitimate by nearly all Americans.

  This vision of impeachment mixes principle with pragmatism. As we’ve seen in earlier chapters, it’s consistent with the Constitution’s original public meaning and structure. It’s also grounded in constitutional text: at minimum, the textual requirement that senators “try” impeachments demands a more impartial and judicial outlook than normal legislative decision-making. The same is true of the Senate’s special oath and the selection of the chief justice as presiding officer. Although the House and Senate are irreducibly political, the Constitution makes clear that impeachment calls for a profoundly different mentality.

  Stated simply, impeachments are no place for small minds or low politics. Here Congress can vindicate, or obliterate, our governmental structure. Exercising this power demands seriousness of purpose and an honest engagement with constitutional values. While disagreements are inevitable, it’s incumbent on Congress to act in good faith. At all stages of the process, legislators must be guided by principled impartiality.

  Impartiality has a distinctive meaning in this context. Unlike in a courtroom, it’s impossible to expect a truly neutral decision maker. Nobody in the House or Senate is indifferent to the president. Nearly everyone voting on his fate will identify as his ally or opponent. To demand perfect neutrality in that circumstance would be to ask the impossible. Instead, impartiality is a matter of degree and attitude. It requires discipline, empathy, and self-reflection. It also requires a principled commitment to the structure and culture of our democratic constitution, apart from mere party or personal interest. As Professor Black observed, it’s helpful to ask how we would answer questions if we had opposite feelings about the president threatened with removal.

  An important dimension of impartiality concerns partisanship. When an impeachment is purely partisan, or appears that way, it is presumptively illegitimate. Except in extraordinary circumstances, the president shouldn’t be removed from office by a single party. In most cases, that isn’t even possible. While House majorities come and go, mustering sixty-seven Senate votes usually requires some bipartisan consensus. But even where one party has the votes necessary to expel a president, it should think twice—and then think twice again—before doing so exclusively along partisan lines. When only Republicans (or only Democrats) view the president’s conduct as justifying removal, there’s a strong risk that policy disagreements or partisan animus have overtaken the proper measure of congressional impartiality.

  The presumption against partisan impeachments is also supported by pragmatic concerns. As Professor Keith Whittington has explained: “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to [abide] by election results.”49 The risk of destabilizing our political system mustn’t be underestimated. It’s easy to envision how a successful partisan removal could unleash a cycle of bitter, destructive recrimination. Accordingly, impeachment should almost always be confined to cases where there is some bipartisan consensus that the president is too dangerous to be allowed to remain in office.

  We can imagine only one exception to this principle. An impeachment along political party lines would be acceptable where the president has captured or corrupted his own political party and the public has elected the competing party with a mandate supporting removal. In that event, many of the president’s original supporters have either abandoned him or been decisively outvoted in a subsequent election. Partisan impeachments are nightmarish but are most justified when born of a popular command to eject a tyrant (and his political allies) from power.

  The ideal of impartiality runs both ways. Just as the president’s opponents must act responsibly, so must his own party. The Senate’s two-thirds rule generally makes removal impossible unless some members of the president’s team are willing to do him in. And as we’ve dis
cussed, blocking an otherwise-justified impeachment can pose extraordinary risks to the nation. That makes the president’s political party particularly responsible for proper use of this power. Even if voting for removal harms their policy goals or their standing in the next election, constitutional good faith may require the president’s comrades to take that step. Refusing to impeach a known tyrant out of partisan self-interest would constitute a failure of governance at least as profound as urging impeachment solely for partisan reasons.

  In all these respects, Congress must strive toward principled impartiality at every step of an impeachment. The outcome of the proceeding, and its public reception, may depend on how well Congress succeeds in living up to this high standard.

  Of course, that’s not to say Congress should completely tune out politics. We doubt it could do so even if it tried. By temperament, many of its members are operators and pragmatists. They’re accustomed to cutting deals, weighing consequences, and negotiating competing interests. They’re also immersed in political party structures that affect their daily lives in countless ways. Most important, they’re sensitive to the wishes of their party, donors, and constituents. Going too far out on a limb can invite sudden unemployment.

  In some respects, Congress’s political character can be a virtue, not a vice. Impeachment is a political remedy wielded by politicians to address a political problem. Their mastery of politics makes legislators savvy judges—both of the specific charges and of the broader circumstances. Nobody else in the federal government better comprehends the use and abuse of power, or can more capably assess whether the president has truly crossed a line.

  Moreover, during impeachments, Congress must keep a clear-eyed view of the shifting political landscape. These dynamics are crucial to assessing the risks and propriety of ending a presidency—and of failing to end it. They’re also important to carrying out the process in a way that minimizes harmful consequences. At times, presidents may counterattack through partisan channels, requiring Congress to defend itself and its proceedings in the public eye. There, too, Congress can be well served by its political acumen, as long as it doesn’t lose sight of the big picture and its ultimate obligations under the Constitution.

  If that all sounds a bit romantic, that’s because it is. The Constitution calls for greatness at moments of national crisis. In thinking about Congress as the decision maker on impeachments, we benefit from identifying principles to which legislators should aspire. Even if Congress falls short, at least we know what its members must aim for in treacherous times.

  Now we’ll pivot back to earth. History and political science offer useful lessons about what factors tend to drive Congress’s decisions in this field. Although every impeachment has its own unique DNA—and it’s impossible to state with certainty which variables matter most—it’s possible to identify and evaluate a number of important considerations.

  Let’s start with public opinion polls on whether the president should be impeached and removed from office. For obvious reasons, everyone involved in the process keeps careful track of those figures. And appropriately so. Public opinion data may provide valuable insight into how Americans would respond to an impeachment, whether an impeachment effort is likely to succeed, and whether the president is perceived as a viable leader.

  Although Americans now take for granted easy access to such information, for most of US history it had to be gauged impressionistically. During the Johnson impeachment, and through the following decades, Congress lacked access to reliable, scientific data about what the American people preferred. As Professor Sarah Igo explains, “only in the years after World War I did mass surveys telling Americans ‘who we are,’ ‘what we want,’ and ‘what we believe’ enter the public domain.”50 Even then, the first scientific poll on presidential impeachment wasn’t conducted until 1973.

  Watergate was thus the nation’s first experience with impeachment polling. Support for impeachment began at 19 percent in the summer of 1973. It rose to 38 percent in October 1973 after the “Saturday Night Massacre,” when Nixon ordered the dismissal of Special Prosecutor Archibald Cox, and his attorney general (and deputy attorney general) resigned in protest. Pro-impeachment sentiment trended upward until August 1974, when Nixon finally resigned. Yet notwithstanding clear evidence of criminality and abuse of power, measurable public support for Nixon’s impeachment never topped 57 percent.51

  There’s an important lesson here. In the 1970s, many Americans didn’t appreciate what it meant to impeach a president. Pollsters discovered that confusion persisted even when surveys described the impeachment process in greater detail. Watergate-related polls may thus have misstated public support for ending Nixon’s presidency. And that deficiency in impeachment polling remains with us. Peter Hart, a professional pollster, has candidly remarked that “the electorate doesn’t fully understand impeachment… their understanding of impeachment is I’m sending a message of disapproval” (italics added).52 Consistent with that view, a July 2014 poll found that 18 percent of the public believes “Congress should attempt to impeach a President in order to express dissatisfaction with his policies or the way the president is handling his job.”53 In many other polls, large numbers of Americans have supported or opposed impeaching specific presidents for reasons flatly at odds with the design of impeachment in the constitutional system.

  People are certainly entitled to their opinions, but in this nation impeachments are not decided by referendum. Legislators swear an oath to uphold the Constitution and are obliged to take its design seriously. They must therefore handle polling data with care. Although Congress properly cares about public opinion, there are also times when it must lead the nation by exercising and explaining its own considered judgment.

  A related factor that has historically affected impeachments is the president’s approval rating. At every step of the process, from opening an investigation to conviction, Congress is less likely to confront a popular president. That partly reflects electoral self-interest, since presidential popularity can have a big effect on the outcome of congressional races. But there’s also a simpler reason: if the American people support the president, they’re more likely to forgive his sins, oppose his adversaries, and resist any effort to unseat him from power. This helps explain why Ronald Reagan wasn’t impeached for Iran-Contra and why the Senate didn’t vote to convict Clinton. Throughout their scandals, both Reagan and Clinton maintained relatively strong overall approval and likability measures. In stark contrast, Nixon’s public approval declined from 68 percent in January 1973 to 24 percent at the time he resigned in August 1974. We don’t have data for Johnson, but the record suggests that he was hated by most of the voting public.

  It’s unnerving to consider the significance of presidential popularity in impeachments. Approval ratings can be affected by a thousand variables, ranging from economic growth to developments in foreign policy to the president’s general affability. The fact that a president excels at speechifying may have little to do with whether he’s a tyrant. Yet in practice, presidents who are good at maintaining a positive public image may have more leeway to get away with “high Crimes and Misdemeanors.”

  In assessing polls on impeachment and public approval, it’s important to parse the data. We can start by identifying two groups of key players in Congress. One group consists of the House and Senate leadership, the committee chairs, and other party elders who command respect. The second group consists of legislators whose votes will likely control whether an impeachment succeeds. While legislators in both groups will care about national data, they’ll usually care most about polls of their own constituents and political party. Where support for impeachment is concentrated in a few regions or in a single party, national polls may fail to predict outcomes. As journalist John F. Harris writes of Clinton’s case, “Members of Congress were not driven by the logic of national majorities, but by two other imperatives: one was the imperative of individual congressional districts; the other, the
politics of the party caucus.”54

  This leads to another major factor in impeachments: political party control of Congress. The impeachments of Johnson, Clinton, and Nixon all occurred while their opponents controlled both the House and Senate. That isn’t a coincidence. Legislators maintain a deep reservoir of goodwill for presidents from their own party. For self-evident reasons, it’s unappealing to impeach a president who would otherwise support favored policies (and whom many legislators likely endorsed). Polling expert Nate Silver thus notes that “members of a party tend to stick together, until the wheels come off—and even then the wagon sometimes gets repaired again.”55 A president’s approval ratings would have to be radioactive, threatening ruin and destruction in the next election, before his own party would consider pursuing an impeachment.

  When a party controls the House or Senate, it has powerful tools to set the agenda and keep its ranks in line. Disloyal members can be punished with loss of prized committee assignments, campaign funds, and legislative pork. If the president’s party controls a chamber, these threats may allow its leadership to push wobbly members into resisting calls for removal. In contrast, when the president’s opponents control a chamber, their leadership can exert great pressure on swing votes to support impeachment. The Republican campaign to remove Clinton offers an especially clear demonstration of these strategies. As Clinton recounts in his autobiography, “One Republican committee chairman was plainly distraught when he told a White House aide that he didn’t want to vote for impeachment but would lose his chairmanship if he voted against it. Jay Dickey, an Arkansas Republican, told Mack McLarty he might lose his seat on the Appropriations Committee if he didn’t vote to impeach me.”56