To End a Presidency

by Laurence Tribe

  More fundamentally, impeachment talk did not become an ordinary, recurring aspect of political disagreement across these decades. With only a few exceptions, Americans with strong objections to the president’s conduct or temperament criticized him on those grounds. It was not seen as normal to demand impeachment every time the president made a bad decision. By and large, politicians and public intellectuals appreciated that calls to end a presidency should be reserved for truly extraordinary circumstances. While an undercurrent of impeachment talk persisted in popular discussion of politics, it played a minor role. That was partly because political elites usually avoided strategies built around inflaming their base to demand the president’s forced exit.

  In that spirit, the House generally acted responsibly in handling matters of impeachment. This was certainly true of Watergate, where the House Judiciary Committee did a first-rate job. To a lesser extent, it was also true of Iran-Contra. Equally revealing is how Congress handled meritless cases. When Weiss and Gonzalez submitted antiwar impeachment resolutions, the House shunted them aside with little fanfare. For the most part, other legislators didn’t use them as a chance to grandstand, fund-raise, or debate the president’s policy. The press, in turn, gave them relatively little attention. Impeachment was recognized as serious business, not as an opportunity to score points or engage in partisan gamesmanship.

  Of course, we don’t mean to overromanticize these tumultuous decades or to suggest that they offered a study in civility. With the fate of the world at stake, Cold War politics were not for the faint of heart. The 1960s birthed a radical and revolutionary ethos—and a conservative counterrevolution—that bolstered partisan differences. The noble struggles of the civil rights movement shook and reordered the foundations of our society. Presidents in this period faced no shortage of tough critics and motivated opponents, who at times resorted to extreme and bloody measures.

  In some respects, that makes the limited role of impeachment talk even more noteworthy. Considering this period as a whole, and focusing only on the question of presidential impeachment, it was a time of comparative moderation. Even as impeachment talk achieved a new prominence in American life, it largely stood apart from the daily grind of partisan politics. Surveying the scene in 1992, one could say that most of the time, on most issues, presidential impeachment had little to do with the conduct and rhetoric of national politics. By the end of the decade, that would no longer be true.

  Bill Clinton ran for president in 1992. He won, but never stopped running. Even after he was inaugurated, Clinton stuck to scripts and tactics from the campaign trail. Relying on polls to decide seemingly banal questions, like where to vacation, he sought an electoral edge at every turn. While this approach wasn’t new, Clinton pursued it on a different level. So did the Republican majority that rose to power in Congress on his watch. Thus began the age of the permanent campaign, which has since expanded to dominate American politics. That context is crucial to understanding impeachment in the post-Clinton era.

  Let’s start with an uncontroversial claim: when US voters elect leaders, we hope that they will appreciate and fulfill their duty to govern the nation. In most cases, that requires a measure of deliberation, collaboration, and bipartisanship. Responsible officials should take a long view of the challenges facing the country and strive to improve the national welfare. They should also respect norms that facilitate workable government. In our diverse society, effective administration often depends on cooperation with political opponents and openness to compromise.

  Accordingly, governing requires a different mentality than campaigning for office. Campaigns are built around winning and retaining power. Officials focused on campaigning are therefore more likely to adopt an adversarial and short-sighted approach. They may aim for quick, high-profile victories even at the expense of norms such as civility and comity. Further, many campaigns seek to build support by condemning opponents and issuing bold statements of principle. Although voters claim to prefer bipartisanship, they often reward officials who thwart compromise and make flashy statements of commitment to the right causes. Aware of that, campaigners frequently care less about concrete achievements than about symbolically pandering to a defined set of donors and demographics. If necessary, outrage and victimization can always be manufactured to fire up the base. As Professor Hugh Heclo wrote, the consultants, pollsters, and politicos who comprise the permanent campaign seek to “transform[] politics and public affairs into a twenty-four-hour campaign cycle of pseudoevents for citizen consumption.”60

  Politicians have always blurred governing and campaigning. But it’s now conventional wisdom that American politics have veered sharply toward permanent campaign footing, at the near-total expense of actual governance. It’s also generally accepted that this is a bad thing. The permanent campaign is blamed for exacerbating cynicism, paralysis, partisanship, obsessive fund-raising, and many other democratic dysfunctions that we’ll explore in far greater detail in Chapter 6. As political scientist Norm Ornstein has remarked, “when politics is driven by the need to turn out your base and policy is dominated by the desire to cater to that base, our baser instincts come to the fore.”61

  Impeachment hasn’t escaped that dynamic. Starting in the mid-1990s and continuing through the present, we’ve seen the creeping emergence of a permanent impeachment campaign. While demands to impeach the president were once extraordinary, they’ve become increasingly common in the nation’s partisan civil war, where nothing is sacred and everything can be weaponized. The result has been a degradation of presidential impeachment—with potentially troubling consequences.

  There are many causes for that development. But none looms larger than the Clinton proceedings. Born of partisan spite and rejected on partisan lines, they energized many of the most pernicious trends in our political system. At the same time, they dragged impeachment down into the mud. A whole generation came of age with Clinton’s as the only impeachment they had ever seen. Even though many Americans rejected the Republicans’ anti-Clinton campaign, it was too late. The same broken politics that led Republicans to impeach in the first place also guaranteed that the shockwaves would ripple far and wide.

  To this day, Clinton’s case is still cited as precedent to support aggressive deployments of impeachment. For an especially clear example, consider this argument by Michelle Goldberg in the New York Times: “Some commentators fear ‘normalizing’ impeachment as a tool of routine political warfare. But Bill Clinton’s impeachment already normalized its use against Democrats on the flimsiest of pretexts… Democrats may wish to return to a less destructive brand of politics, but that’s not an option while Trump sits in the White House.”62

  Goldberg’s column makes a move that’s currently popular in impeachment talk: jumping straight from Republican attacks on Clinton to a case against Trump. This eye-for-an-eye reasoning is part of a cycle that impels the permanent impeachment campaign forward. As related by Goldberg, though, the story is incomplete. Nearly twenty years elapsed between Clinton and Trump. During that period, Republicans and Democrats alike contributed to the normalization of impeachment talk.

  After Clinton came George W. Bush. During Bush’s first term, which was defined largely by his response to 9/11 and the invasion of Iraq and Afghanistan, there was little discussion of impeachment. That changed shortly after his reelection in 2004. Americans soured on the deteriorating situation in Iraq, especially when it became clear that Bush had built his case for war on faulty intelligence. Bush’s popularity also declined amid revelations of torture, black sites, extraordinary rendition, and illegal surveillance. His gross mishandling of Hurricane Katrina and its aftermath inflicted further political damage. While Bush began his second term with roughly 50 percent approval ratings, that figure dropped to the mid-30 percent range in 2006 and fell below 30 percent in 2008.

  As early as December 2005, impeachment talk picked up. That month, Democratic Representative John Conyers urged the creation of a select co
mmittee to make recommendations on possible grounds for Bush’s impeachment. According to a contemporary Rasmussen poll, 32 percent of Americans agreed that Bush should be impeached and removed from office.63 Impeachment sentiment held steady through the rest of Bush’s second term, with polls noting support at 33 percent in April 2006 and 36 percent in July 2007. Predictably, the 2007 poll disclosed a stark partisan divide on impeaching Bush: Republicans were 9 percent in favor and 91 percent opposed, while Democrats were 58 percent in favor, 39 percent opposed (3 percent didn’t answer).64

  Those figures revealed that impeachment was a classic wedge issue: it split Democrats but unified Republicans. This may explain why many conservatives were thrilled in March 2006 when Democratic Senator Russell Feingold proposed censuring Bush for warrantless domestic surveillance. At that point, the president’s public approval ratings had collapsed. With midterm elections on the horizon, Republicans feared losing control of Congress. What better way to fire up the base than to warn that Democrats would impeach Bush if they prevailed? “This is such a gift,” Rush Limbaugh told listeners.65 The Wall Street Journal ran an op-ed entitled “The Impeachment Agenda,” which the Republican National Committee shared with 15 million supporters.66 Other Republican operatives spread the word: “Impeachment, coming your way if there are changes in who controls the House.”67 This theme permeated Republican messaging throughout the midterm campaign.

  As reporter David Kirkpatrick observed at the time, “in playing up the impeachment threat, conservatives have forged an alliance of sorts with the most liberal wing of the Democratic Party.”68 Indeed, the “liberal wing” had been hard at work building support for removing Bush immediately. Reflecting a majority view among Democrats, liberal stalwarts had already championed Bush’s impeachment in Harper’s and The Nation. Their cause received support from movie stars, some local governments and state legislatures, and a coalition of activists organized through ImpeachPAC.

  By May 2006, Democratic Minority Leader Nancy Pelosi was sick of it. At a party meeting, she made clear that “impeachment is off the table”—a commitment she had to repeat many times over the next six months.69 This decision triggered heated debates within the political left, but she stood by it as sound electoral strategy. One day after Democrats won control of Congress, Pelosi confirmed that impeachment remained out of bounds.70 As she later explained, impeachment would have divided the county and allowed Republicans to portray Democrats as obstructionists. Further, an impeachment would almost certainly have failed in the Senate, unlike some of the domestic policy legislation that Pelosi hoped to pass with her new House majority.

  From 2006 through 2008, liberal Democrats pushed Pelosi to impeach and she refused. This tension peaked on June 12, 2008, when Representative Dennis Kucinich introduced thirty-five articles of impeachment against Bush. These accusations covered the waterfront: abuses relating to the Iraq War, torture, rendition, unlawful surveillance, corrupting elections, an inadequate response to Katrina, and much more. The House voted 251 to 166 to send this resolution to the Judiciary Committee, where it would never see the light of day. In a stark departure from historical practice, the 166 “no” votes came from Republicans who hoped to embarrass Democrats by forcing a public debate on whether to impeach Bush. Speaking for Democrats, Howard Dean responded that “the American people sent us [to Congress] to get things done… [not] to impeach the President.”71

  Even then, the issue didn’t die. When Pelosi launched a book tour two months later, reporter Carl Hulse described it in the New York Times as “The Why-Haven’t-You-Impeached-the-President Tour.”72 According to Hulse, “Pelosi found herself under siege by people unhappy that she has not been motivated to try to throw President Bush out of office.” Pelosi had to explain that “the proceedings would be too divisive and be a distraction from advancing the policy agenda of the new Democratic majority.”

  This response did not assuage her critics—including Donald J. Trump. In October 2008, Trump told Wolf Blitzer, “I was surprised that [Pelosi] didn’t do more in terms of Bush and going after Bush. It just seemed like she was really going to look to impeach Bush and get him out of office. Which personally I think would have been a wonderful thing.” Blizter asked, “To impeach him?” And Trump replied, “For the war. For the war! Well, he lied! He got us into the war with lies!”73

  In some ways, George W. Bush’s experience with impeachment was ordinary. Impeachment talk peaked as his popularity plummeted. It was confined largely to margins of the opposition political party. And it formally manifested only in a single resolution, introduced by a single representative, which was buried in the Judiciary Committee.

  The underlying dynamics, however, were very different from those of any prior case. It’s not unusual for the president’s most zealous opponents to focus attention on impeachment. It was unprecedented, however, for the president’s own allies to rely so heavily on impeachment threats to turn out their own base. It was also unprecedented for the president’s party in the House to vote against killing an impeachment resolution just so that they could embarrass their opponents. This unholy alliance of interest between Rush Limbaugh and Dennis Kucinich reflected a deeply cynical calculus by Republican operatives about the political benefits of anti-Bush impeachment talk.

  That calculus, in turn, rested on assumptions that wouldn’t have held true in an earlier era. Here we see a post-Clinton shift in awareness of impeachment and expectations regarding its use. Republican voters could be incited by impeachment talk because they actually feared an impeachment effort and didn’t see it as an unthinkable possibility. Democrats largely supported impeachment, though polls showed wide variation in their reasons for doing so. Most important, to both groups impeachment was salient in a way that it simply hadn’t been to previous generations. Indeed, never before had a Speaker of the House traveled the country explaining why she didn’t impeach the president. By 2006, however, many Americans viewed impeachment less as a last resort and more as a standard feature of partisan warfare. Political strategists on both sides of the aisle were more than happy to encourage this view, at least when doing so suited a short-term need for their latest campaign.

  The normalization of impeachment in our politics proceeded apace under Barack Obama. Immediately after his election, millions of Americans—including Trump—seemed unwilling or unable to accept the idea that Barack Hussein Obama was a legitimate president. Many others didn’t feel that way but simply had strong disagreements with Obama’s vision for the country. The Republican Party offered both groups a home, branding itself as the scorched-earth opposition. Throughout Obama’s eight years in office, Republicans stuck to that script, working at every turn to stymie the president and paralyze government. Obama eventually responded by making expanded and adventurous use of his executive powers to address immigration, the environment, LGBT rights, gun regulation, health care, and many other issues. These actions provoked more Republican hostility—as well as charges that Obama was a lawless tyrant with no respect for the Constitution. The Tea Party, a right-wing social movement, took the lead in attacking him. Eventually it urged impeachment with overpass protests across the nation.

  Like Bush, Obama enjoyed a lull in impeachment talk during his first term. The idea was floated by a few congressional Republicans, including Darrell Issa, Michael Burgess, and John Kyl, but it never took off. That changed in Obama’s second term. By 2013, impeachment was a common refrain in conservative circles. Senator Tom Coburn told constituents that Obama was “perilously close.”74 Representative Blake Farenthold believed that “the whole birth certificate issue” justified removal.75 Representative Jason Chaffetz declined to rule out impeachment over Benghazi,76 and Representative Dana Rohrabacher would have impeached for “unconstitutional approaches” to immigration reform.77 After the massacre at Sandy Hook Elementary School, Representative Steve Stockman threatened to impeach Obama for any new gun regulations.78 In Michigan, Representative Kerry Bentivolio admitted that imp
eaching Obama “would be a dream come true.”79 And when asked by conservative broadcaster Rusty Humphries, Representative Michele Bachmann said that Obama should be impeached for unspecified “thuggery.”80

  Through 2013 and 2014, these calls were echoed by prominent ring-wing figures. On Fox News, for instance, Jeanine Pirro demanded Obama’s impeachment for “not protecting and defending Americans in the bloodbath known as Benghazi.”81 Sarah Palin later piled on, declaring that “the many impeachable offenses of Barack Obama can no longer be ignored.”82 By June 2014, National Review writer Andrew McCarthy had published Faithless Execution: Building the Political Case for Obama’s Impeachment. In a sweeping indictment, he concluded that Obama could be impeached for nearly everything he had said or done since taking office. The only question, in McCarthy’s view, was whether we wish to remain a “self-determining people.”83

  According to pollsters, a majority of the public didn’t share McCarthy’s view—though support for impeaching Obama was still relatively high. In July 2014, 35 percent of Americans favored impeachment; roughly 44 percent opposed it and 21 percent weren’t sure. Much like under Bush, these divisions reflected partisan affiliation. Depending on which poll you believed, 57–68 percent of Republicans supported impeaching Obama, compared to 8–13 percent of Democrats and 35 percent of self-described “independents.”84