To End a Presidency

by Laurence Tribe

  Within a few months, however, the uproar faded. From the outset, Democrats controlled Congress and refused to consider the idea of impeachment. As one Democratic senator noted, “there is nothing whatever to do in this instance except to stand with Truman. It is simply a question of whether civil government is to be maintained.”40 Calls for impeachment also faced another obstacle: opposition from influential newspapers, which blamed MacArthur for insubordination and grasped his threat to civilian control of the military. That feeling was fortified by seven weeks of Senate hearings, which revealed MacArthur as an extremist and let Pentagon leaders dissect his faulty reasoning. By late May 1951, popular support for MacArthur had plummeted. But there wasn’t a corresponding boost for Truman. His handling of the situation, and his failure to make an effective case to the public, took a heavy toll on the president. Repeated calls for impeachment had reflected and reinforced a perception that Truman was fundamentally inadequate to the task.

  One year later, Truman sparked another constitutional crisis. After labor disputes threatened to shut down many of the nation’s steel mills, he decided to seize the mills as federal property. Truman justified his decision as necessary to preserve the war effort and the national economy. Since no statute authorized this massive taking of private property, Truman purported to rely on his inherent authority as president and commander in chief. When pushed to defend his position, Truman reasoned that “the President has the power to keep the country from going to hell.”41 This was a remarkable and limitless claim, but Truman had been privately reassured by Chief Justice Fred Vinson that the law was on his side.

  Truman announced the seizure on April 8, 1952. His position was met with a furious, unrelenting outcry. The president’s asserted power to seize private property in the name of national security reeked of tyranny. Congressional Democrats saw little reason to defend Truman, whose term in office was nearly over. Meanwhile, Republicans came out swinging.

  Unlike a year earlier, impeachment was not the principal goal of their criticism. Republicans recognized that Democrats in Congress would shut down any removal proceedings. Still, they laced their public remarks with impeachment talk. Echoing his Republican colleagues, Senator Bourke Hickenlooper opined that Truman’s action “constitutes prima facie grounds for impeachment proceedings.”42 In the House, many Republicans argued that Truman “should be impeached today.”43 Impeachment resolutions were introduced on April 22, 23, and 28. In addition, several congressional Republicans formally urged the House to create a bipartisan committee to investigate Truman’s impeachable offenses.

  Truman was untroubled. The New York Times reported on the president’s casually dismissive attitude when he was asked about impeachment: “Oh, Mr. Truman replied, that is a political proposition. They have a right to do that if they want to. He said he had a pretty good defense. (Laughter).”44

  Truman had little to fear in Congress, where his party controlled both houses and buried the impeachment resolutions. But in court, his own lawyers invoked impeachment to disastrous effect. On April 24, US District Judge David Pine held argument on a motion to block the president’s order. There, defending Truman, Assistant Attorney General Holmes Baldridge cast his client’s position in an extremely unnerving light:

  THE COURT: So you contend the Executive has unlimited power in time of an emergency?

  MR. BALDRIDGE: He has the power to take such action as is necessary to meet the emergency.

  THE COURT: If the emergency is great, it is unlimited, is it?

  MR. BALDRIDGE: I suppose if you carry it to its logical conclusion, that is true. But I do want to point out that there are two limitations on the Executive power. One is the ballot box and the other is impeachment.45

  Judge Pine was incredulous. He asked Baldridge, “Is it your concept of Government that the Constitution limits Congress and it limits the Judiciary but does not limit the Executive?” When Baldridge stated “that’s our conception,” Judge Pine bluntly responded, “I have never heard that expressed in any authoritative case before.”46

  This wasn’t the first time—and it wouldn’t be the last—that impeachment was invoked in court to favor the president. In cases about the pardon power, the interpretation of treaties, and the president’s legal immunity for his official acts, the Supreme Court has relied on the possibility of impeachment to reject the need for other constraints.47 Most of the time, however, such arguments are wrong and dangerous. Impeachment is not meant to function as an all-purpose tool for enforcing the Constitution. Accepting that position would create perverse effects. On the one hand, given how hard it is to remove a president, this rule would allow an extraordinary amount of unconstitutional conduct. At the same time, it would warp the role of impeachment, which is meant exclusively for “high Crimes and Misdemeanors.” Accordingly, when the president violates individual rights, there’s an overwhelming presumption in favor of judicial review—not impeachment—as the appropriate response. If the president follows a court order directing him to cease an unlawful act, only in a rare case would impeachment also be justified. It gets things entirely backward to rely on the theoretical availability of impeachment as a reason for courts not to protect personal liberty. That is the core judicial role.

  Baldridge’s contrary argument was slammed in the court of public opinion. One of the president’s aides described it as the “legal blunder of the century.”48 Truman himself disavowed that position, as did the Department of Justice. But the damage was done. In suggesting that the president had unlimited power—bounded only by elections and impeachment—Truman’s lawyer confirmed the public’s worst fears. Judge Pine blocked the seizure order, and the Supreme Court later affirmed by a vote of six to three. In a famous concurring opinion, Justice Robert Jackson reminded Truman that “the purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.”49 Reassured by the Court’s decisive repudiation of Truman’s unlawful order—and by Truman’s prompt compliance with the Court’s decision—Republicans in Congress dropped their calls for impeachment.

  At this point, the nation had seen two surges of impeachment talk in a single year. Both of them shared three notable characteristics. First, they ran hot and burned out fast. Neither emerged from—or turned into—an extended opposition campaign to remove the president from office. Indeed, given Democratic control of Congress, the odds of an actual removal always hovered near zero. The impeachment rhetoric instead reflected a high level of frustration with the Truman presidency and the Korean War. Viewed this way, impeachment talk was used primarily as an intensity booster to convey just how strongly some parts of the public disagreed with Truman.

  Second, both impeachment fights of the early 1950s broke down along partisan lines. Despite Truman’s deep unpopularity, Democrats in Congress stood by him. Nearly all calls for impeachment came from Republicans, though with some division in the ranks. Impeachment politics were thus continuous with preexisting partisan differences.

  Finally, these developments were extraordinary. No president since Johnson had faced such prominent calls for his impeachment. While the Gilded Age and Progressive Era saw plenty of political turmoil, impeachment talk had been confined to socialists, extremists, and partisan outliers. Under Truman, it briefly returned to the heartland of national debates and took on renewed importance. In that respect, it offered a glimpse into the future of American politics.

  After the tempests of the early 1950s, presidential impeachment returned to the political hinterlands. There were no substantial calls to impeach Dwight Eisenhower, John F. Kennedy, or Lyndon B. Johnson. The nation’s experiences under Truman didn’t generalize into a more robust conception of the role that impeachment should play. That held true even amid the pitched social battles of the 1960s.

  Rather, impeachment talk in this period focused squarely on the Supreme Court. Led by Chief Justice Earl Warren, the Court decided Brown v. Board of Education in 1954. It then spent decades expanding and creati
ng rules to safeguard civil rights. Southern backlash led to a flurry of “Impeach Earl Warren” billboards. Richard Nixon capitalized on that anger in his law-and-order presidential campaign, and then set out to impeach Justice William O. Douglas in 1970 (as we saw in Chapter 2). Although that particular effort failed, Nixon later succeeded beyond his wildest dreams—or nightmares—in reinvigorating the impeachment power.

  In fact, some scholars have suggested that Watergate and its aftermath inaugurated an “age of impeachment” that continues to the present day.50 There’s no denying that the Nixon administration produced a new awareness of impeachment in American thought and politics. It also magnified and entrenched cynicism about our democratic institutions—especially the presidency. After 1974, to speak of impeachment was to speak of Nixon.

  But Watergate was exceptionally traumatic. Nothing about the experience left Americans eager to reprise it. For that reason, among others, credible presidential impeachment talk almost completely abated for several decades after Nixon resigned from office in August 1974. This historical perspective cuts against heavy reliance on Watergate as the fountainhead of modern impeachment politics. The story is much more convoluted than that.

  During Gerald Ford’s tenure, talk of presidential impeachment emerged only once: after he decided to pardon Nixon. But this discussion was short lived. Although many Americans viewed the pardon as outrageous—and Ford paid a steep political price for it—there was no proof that he had entered into a corrupt bargain with Nixon. Instead, Ford consistently maintained that he had pardoned his predecessor to help the country move on, which would have been impossible during a drawn-out criminal trial. When challenged by skeptical Democrats, Ford effectively preempted impeachment talk by agreeing to testify before the House Subcommittee on Criminal Justice. This gave Ford a perfect opportunity to address and defuse accusations that the pardon was part of a quid pro quo arrangement. After his testimony, the issue quickly drifted away. The nation was exhausted. It had no interest in prosecuting yet another president without clear proof of grievous offenses.

  Jimmy Carter succeeded Ford in January 1977. There was no serious impeachment talk on his watch. For all his many failings, Carter was neither corrupt nor abusive. To the contrary, Carter’s modest view of the presidency led him to devalue and diminish rather than aggrandize the powers at his disposal. Torn by indecision and unable to lift the national mood, the main threat Carter posed was weakness.

  Responding to Carter’s perceived inadequacy, the nation overwhelmingly chose Ronald Reagan in 1980 as a leader who would restore strength to the White House. Too much strength, it turned out. At home and abroad, Reagan took a stunningly expansive view of his executive authority. This led to a minor uptick in impeachment talk during his first term. Then, on November 10, 1983, Representative Ted Weiss introduced a resolution in the House urging that Reagan be impeached for abuse of power.51

  Weiss’s resolution wasn’t a bolt from the blue. Weeks earlier, and without consulting Congress, Reagan had invaded the Caribbean nation of Grenada. He justified the invasion by referring to a leftist coup on the island, which supposedly endangered US students and risked further chaos in the region. More fundamentally, though, Reagan aimed to intimidate Soviet-aligned forces in Latin America. He also hoped to break the post-Vietnam paralysis that made Americans wary of military intervention. While Reagan’s covert invasion of Grenada drew international sanction, most Americans viewed it as a justified and successful operation.

  But Ted Weiss was a die-hard Manhattan Democrat and he saw things differently. Reagan had violated the Constitution by deploying troops for combat in a foreign nation without congressional approval. That was the end of the matter. As Mayor Edward Koch later said about Weiss, “Whatever room he entered, a living room or the halls of Congress, he was the conscience of that room. There were times I thought he would impeach God, but the fact is, even then you knew he would be intellectually honest. You knew he thought God should be impeached.”52

  Weiss never got around to impeaching God; instead, he had to settle for Reagan. As Weiss explained, “by his actions in Grenada, the President has usurped the warmaking powers of Congress, contrary to the very constitutional framework of our Government.” Weiss knew that his proposal did “not fit the current mood of most Americans.” Nevertheless, he insisted on it because “the Constitution of the United States was not meant to apply only when its provisions enjoy majority support.”53

  Weiss didn’t stand alone. His resolution attracted seven cosponsors. But it was still sent to the House Judiciary Committee for a slow, invisible death. Even if Reagan had exceeded his powers—and that’s a murky legal issue—there was no political appetite for an impeachment. Consequently, Weiss and his allies were isolated. Even most Democrats looked away. Reagan thereby established an important precedent supporting executive control over the use of force abroad.

  In Reagan’s second term, impeachment talk swirled around the Iran-Contra Affair, which we explored in Chapter 3. Here was a case where impeachment might well have been justified, yet the president’s opponents foreswore it. They did so for many reasons, including the absence of a smoking gun, Reagan’s cooperation with investigators, and their fear of destabilizing the nation. Reagan emerged from Iran-Contra bruised and bloody but not beaten. His relatively gentle treatment suggested that Watergate had left Congress temporarily trigger-shy on impeachments.

  Apart from Iran-Contra, Reagan had little reason to worry about serving out his full term in office. Four years later, however, George H. W. Bush couldn’t stop thinking about impeachment. By November 1990, he already had decided on invading Iraq and Kuwait to thwart Saddam Hussein. Although many leaders in Congress favored more time for diplomacy and sanctions, Bush was confident that he possessed the raw constitutional authority to strike without requesting congressional approval (or to proceed even if Congress rejected his plan). But he also knew that he could suffer massive blowback if he invaded the Persian Gulf and his strategy went awry. Bush’s biographer reports that the president wrote about impeachment in his diary five times during this period. That fear wasn’t entirely of his own creation. “If you’re wrong about this,” Hawaii Senator Dan Inouye warned Bush, “you are going to be impeached by the Congress.”54

  That wasn’t enough to stop him. “If I don’t get the votes,” Bush told Robert Gates, “I’m going to do it anyway. And if I get impeached, so be it.”55 Fortunately for Bush, he never had to cross that particular bridge. After days of eloquent debate in Congress, he won a resolution authorizing the deployment of troops. Between that victory and effective presidential diplomacy at the United Nations, the whole world now supported his plan. Bush was relieved. He wrote in his journal, “The big burden, lifted from my shoulders, is this Constitutional burden—the threat of impeachment.”56

  As if he had read Bush’s mind (or diary), Representative Henry B. Gonzalez filed an impeachment resolution three days later, on January 16, 1991. Gonzalez was a famously combative, independent, and populist legislator. In 1961, he had become the first Mexican American elected from Texas to the House of Representatives. Since then, he had established himself as ferocious defender of the poor and powerless. He was also known as an iconoclast, especially on matters of impeachment. He joined Weiss’s call to impeach Reagan over Grenada, and then pushed to impeach Reagan again for Iran-Contra. Most legislators never draft or support a call for impeachment; when Gonzalez moved to impeach Bush in 1991, he reached a hat trick within a single decade.57

  The main obstacle for Gonzalez was that Congress had squarely authorized Bush’s use of force. Undeterred, he based his January 16 resolution on three alleged abuses: planning for war; intimidating the UN Security Council to support the war; and committing to war without legislative approval.58 Five weeks later, on February 21, 1991, Gonzalez introduced another call for impeachment. It was similar to the first one, but added a new charge: that Bush had violated equal protection “by putting U.S. soldiers in the
Middle East who are overwhelmingly poor white, black, and Mexican-American, as well as basing their military service on the coercion of a system that denies viable economic opportunities to these classes of citizens.”59

  Gonzalez’s resolutions rested on general objections to the Persian Gulf War—and to structures of racial and economic injustice. Although framed as accusations against Bush, they went far past his presidency and his particular use of military force. Gonzalez drew no support for this societal critique. Both of his resolutions were quietly entombed in the Judiciary Committee. Thereafter, Bush didn’t face any noteworthy impeachment chatter.

  Before continuing, let’s pause and review the story from 1950 to 1992. In this period, mainstream interest in presidential impeachment spiked four times: Truman (1951 and 1952), Nixon (1974), and Reagan (1986). There were also two minor calls to impeach, both meant to protest military action: Reagan (1983) and Bush (1991).

  Compared with US history until 1951, this represented a marked increase in formal impeachment activity. Four presidents faced impeachment resolutions in the House across this forty-one-year period, as compared with five presidents in the preceding one hundred sixty-two years. And apart from those raw numbers, impeachment talk played a comparatively more substantial role in US politics in the late twentieth century. Indeed, if one were to compile a list of high-salience political disputes involving credible calls for impeachment, the lead examples before 1992 would be Jackson, Tyler, Johnson, Truman, Nixon, and Reagan. It’s striking that half these examples come from before 1868 and the other half occurred after 1950.

  This isn’t to say that post–World War II America went on an impeachment bender. Demands to impeach the president remained extraordinary and intermittent before 1992. Most presidents to serve in this period never faced a mainstream impeachment threat (Dwight D. Eisenhower, John F. Kennedy, Lyndon B. Johnson, Ford, Carter, and Bush). While three did, two of them deserved it (Nixon for Watergate and Reagan for Iran-Contra). Truman didn’t deserve it—at least not for firing MacArthur—but in that regard the wave of impeachment mania in 1951 was unusual and is best seen as a reflection of Truman’s severe unpopularity.