To End a Presidency

by Laurence Tribe

  In July 2014, with midterm elections months away, the events of 2006 repeated themselves—this time with the political parties flipped. On July 29, Nick Corasaniti reported that “Democrats cannot get enough of Republicans talking about impeaching President Obama.” Those impeachment threats, he noted, had a “catalytic effect on [their] fund-raising.”85 Over the following months, Dan Pfeiffer—a senior advisor to Obama—highlighted the impeachment narrative. He was joined by Senator Harry Reid, who wrote a fund-raising letter claiming that a “Republican House and Senate could go beyond shutting down the government—they could waste months of our lives on impeachment.”86

  All the while, Republican leaders in Congress strenuously denied that there was a secret plot to impeach Obama. In frustration, Speaker of the House John Boehner responded: “This whole talk about impeachment is coming from the president’s own staff and coming from Democrats on Capitol Hill. Why? Because they’re trying to rally their people to give money and to show up in this year’s elections. We have no plans to impeach the president.”87 Boehner stuck to this position all year long, even as members of his own party gravitated in a more radical direction.

  By August 2014, New York Times reporter Neil Irwin had picked up on an “odd symbiosis” in the midterm campaign. As he observed, “unelected voices on the right and elected Democrats both want to keep impeachment buzz going, while Republicans who actually hold power dismiss the idea out of hand and grumble about the Democrats’ use of the ‘threat’ for fund-raising purposes.”88

  Republicans ultimately retained control of the House. True to their word, they never sought to impeach Obama. In fact, nobody did. Instead, as was true under Bush, impeachment talk under Obama was little more than a manifestation of the permanent campaign. Democrats used it to scare their base into voting. Right-wing Republicans used it to agitate supporters while signaling loyalty to the anti-Obama movement. Both groups used it to fundraise and add new supporters. Meanwhile, Republican leaders worked hard to avoid the issue—which risked alienating independents—even as their attacks on “King Obama” were riddled with impeachment-caliber language. Throughout Obama’s second term, impeachment was unavoidable everywhere except in the halls of Congress, where no one dared propose it.

  By early 2016, the architecture of a permanent impeachment campaign was in place. Through the Clinton, Bush, and Obama presidencies, impeachment had become an accepted, predictable tool of partisan combat. This was true for liberals and conservatives. To their credit, most legislators still acted responsibly and avoided promiscuous use of the “i-word.” But on both sides of the political aisle, a coterie of journalists, operatives, and officials had spent decades mastering the strategy and rhetoric of impeachment talk. In that same period, the American people had grown accustomed to it. Calls for impeachment—and denouncements of those calls—were now firmly established in the political dialogue. When the president did something outrageous or controversial, an angry public knew how to respond.

  And then along came Donald Trump and Hillary Clinton (to whom we’ll refer as Hillary). We suppose it’s possible that a talented fiction writer could imagine two candidates better calculated to trigger impeachment alarms. We doubt it, though. Hillary was weighted down by decades of Republican animus, a horde of conspiracy theories, questions about her “missing e-mails,” and a weakness for sketchy dealings. Trump, in turn, had a web of disturbing entanglements with Russia, open disdain for democratic norms, decades of racist and sexist conduct, a history of fraudulent business practices, and a temperament that many viewed as disqualifying. From the very outset, commentators warned that this would be an exceptionally ugly campaign.

  They were right. And it only got uglier as 2016 wore on. Presented with escalating charges of criminality and corruption, the American public swiftly defaulted to impeachment talk. This was now a conditioned response. It had become so natural that many Americans barely hesitated before debating the impeachment of people who didn’t yet hold office. When impeachment talk is inevitable, why wait?

  To our knowledge, 2016 was the first campaign between two non-incumbents marked by open threats of impeachment for whoever won. As early as April 2016, before he had secured his party’s nomination, Politico reported on speculation about the likely impeachment of a hypothetical President Trump.89 That belief simmered throughout the campaign—sometimes encouraged by conservatives who saw it as a creative path to installing Mike Pence as president. Generally, though, Democratic officials avoided pre-election impeachment talk. The same couldn’t be said for Republicans. On November 3, 2016, the Washington Post reported that “senior Republican lawmakers are openly discussing the prospect of impeaching Hillary Clinton should she win the presidency.”90 New York magazine and the New York Times separately confirmed statements by top Republicans that Hillary would face impeachment if she were elected.91 Trump joined the fray at his rallies, reminding crowds of Bill’s trial and asking, “Folks, do we want to go through this again?”92 Republicans used these threats to achieve two goals: (1) increasing their odds of winning the election, and (2) laying groundwork for their siege of a likely Clinton administration.

  After Trump’s surprise victory, many Democrats fell into a state of grief and despair. The sheer enormity of the disaster left them too stunned to plan their next steps. Within weeks of the election, though, early sparks of impeachment talk appeared in liberal blogs and Twitter feeds. Like so much else about the 2016 election, the wave of impeachment sentiment that built from November through January was unprecedented. But so were Trump’s flagrant violations of the Emoluments Clauses, which made it conceivable that he would commit an impeachable offense on his very first day.93 As winter gripped the nation, calls for Trump’s swift ouster appeared in Huffington Post, Vanity Fair, and other liberal outlets.94 Then, on Inauguration Day, the impeachment campaign launched in earnest. ImpeachDonaldTrumpNow.org went live and received so many hits that it crashed. In GQ, commentator Jay Willis explained “How to Impeach a U.S. President (Say, Donald Trump).”95 And in Ireland, the online bookmaker Paddy Power cheerfully reported that 90 percent of all relevant bets wagered against Trump lasting a full four-year term.96

  Through the rest of 2017, impeachment remained a dominant motif of Trump’s presidency. Indeed, just two weeks after Trump’s inauguration, nearly one-third of the American public supported impeaching him. Even in a world gone topsy-turvy, this was a truly extraordinary data point. As the year progressed, Trump’s approval ratings started low and trended lower—impelled downward by legislative failures, outrageous public statements, and a thick haze of malice, incompetence, and kleptocracy. At the end of 2017, 41 percent of Americans favored impeachment proceedings, including 70 percent of Democrats and 40 percent of independents.97 An unceasing parade of dismal polls confirmed that Trump was the most unpopular first-year president since the advent of polling. Quinnipiac University reported that “idiot,” “liar,” and “incompetent” were the most common words used to describe Trump in a December 2017 survey.98 And real-money prediction websites offered 20 percent odds that Trump would be impeached by the end of 2018.99

  Of course, impeachment talk during Trump’s first year resulted from more than his unpopularity. Time and again, Trump violated basic norms of presidential behavior and personal decency. It soon became clear that no major issue would escape his unparalleled capacity for mayhem, dishonesty, and vulgarity. This realization cast a pall over American democracy. As journalist Masha Gessen wrote in November 2017, “the sun still rises every morning, but an [early] barrage of Trump’s tweets might obscure it… we have settled into constant low-level dread.”100 Ultimately, many people concluded that Trump threatened the rule of law, national security, and global peace. This threat was so great, they believed, that only his immediate removal could stop it.

  Support for impeachment drew strength from plausible claims that Trump may have committed “high Crimes and Misdemeanors.” His alleged offenses included grave abuse of the pa
rdon power and illegal financial entanglements with foreign countries. Some experts also invoked impeachment as a remedy for Trump’s assault on the news media, his attacks on free speech and religious pluralism, and his chilling demands that federal prosecutors target his political opponents.

  But nothing loomed so large as Russia. Too many officials close to Trump had lied about meeting and dealing with Russians, and had then lied about the circumstances and context of those meetings. By December 2017, pollsters reported that over half of American voters believed that members of the Trump campaign had colluded with Russia to interfere in the 2016 presidential election.101 An increasing number of Americans also suspected that Trump himself had played a role in such collusion. Trump stoked these suspicions by pandering to Vladimir Putin, bragging to the Russian Ambassador about firing FBI Director James Comey, denying Russian interference despite clear evidence, and sabotaging efforts to protect the nation from Russian cyberattacks.

  At the same time, many of the calls to remove Trump were based on conduct that is not properly impeachable. For instance, some Americans appeared to support impeaching him for withdrawing from the Paris Agreement on Climate Change, for having abused women before taking office, for gutting the US Foreign Service, or for lending comfort to the neo-Nazi thugs who terrorized Charlottesville, Virginia. Others pushed impeachment as a response to Trump’s many illegal executive orders—including his anti-Muslim entry bans, his ban on military service by transgender persons, his threats to punish sanctuary cities, and his mistreatment of undocumented migrants brought here as children (“Dreamers”). Still others favored removing Trump due to his erratic nuclear brinksmanship with North Korean Leader Kim Jong-un. As many experts pointed out, Trump risked disaster by publishing tweets bragging that his “nuclear button” is “much bigger & more powerful than his, and my Button works!”102 (Obviously, Trump suffers from severe insecurity about size.)

  As 2017 wore on, the bill of particulars against Trump grew longer and more detailed. So did the bizarre reports swirling around him. Rumors spread that Trump’s mental capacity had deteriorated—as evidenced by a noticeably smaller vocabulary, a near-total unwillingness to read, and increasingly frequent repetition of the same point. Reporters claimed that Trump spent four to eight hours per day obsessively watching (and sometimes live-tweeting) cable news, mainly Fox and CNN. Cabinet officials were overheard describing him as an idiot, a moron, and a dope—but were also forced to attend meetings where they fawned over him and offered obsequious thanks for his leadership. Trump got into weird Twitter fights, including an exchange in which he said that he should have left three UCLA basketball players in Chinese prison because one of their parents was not grateful enough for his son’s release. Trump also falsely accused Barack Obama of wiretapping Trump Tower; endorsed an alleged pedophile to win a Senate race in Alabama; claimed credit for the lack of any commercial airplane crashes worldwide in 2017; and continued to favor eating food from McDonald’s due to a nonspecific fear that somebody would try to poison him.103

  To many Americans who supported Trump’s removal, there was little need for fine-grained analysis of whether particular misdeeds qualified as “high Crimes and Misdemeanors.” Rather, a generalized assessment of Trump’s conduct led them to a single conclusion: Trump was unfit to serve as president and had proved it by committing a bevy of impeachable (or at least despicable) acts. Channeling that mindset and urging an expansive view of when impeachment is justified, political commentator Ezra Klein made a sharp case for Trump’s ouster:

  Sometimes I imagine this era going catastrophically wrong—a nuclear exchange with North Korea, perhaps, or a genuine crisis in American democracy—and historians writing about it in the future. They will go back and read Trump’s tweets and his words and read what we were saying, and they will wonder what the hell was wrong with us. You knew, they’ll say. You knew everything you needed to know to stop this. And what will we say in response?104

  Even as Trump’s base largely stood by him, dismissing attacks on their hero as elitist hokum, millions of Americans concluded that Trump posed too great a threat if left in power.

  That rise in impeachment sentiment was accompanied by large and creative public displays. When a US science envoy submitted his resignation to the State Department, he spelled “IMPEACH” with the first letter of each paragraph (needless to say, it went viral).105 On October 15, Larry Flynt and Hustler Magazine took out a full-page ad in the Washington Post, offering $10 million for information leading to Trump’s impeachment. Five days later, a billionaire philanthropist named Tom Steyer launched an eight-figure television ad campaign laying out the case for impeaching Trump. In a stroke of genius, Steyer made sure to purchase airtime during Fox & Friends, one of Trump’s favorite shows. True to form, Trump responded almost immediately: “Wacky & totally unhinged Tom Steyer, who has been fighting me and my Make America Great Again agenda from beginning, never wins elections!”106 Thanks in part to free publicity from Trump, Steyer’s impeachment petition boasted more than 3.6 million signatures by the end of the year.107

  Steyer’s national campaign crystallized a dynamic familiar from 2006 and 2014. Once again, a strong majority of the opposition party supported impeaching the president. Once again, an alliance of wealthy donors, grassroots campaigners, and ideological House members called for impeachment. Once again, allies of the president publicly emphasized the threat of impeachment to inflame and unify his base. And once again, leaders of the opposition party in Congress repeatedly discouraged impeachment talk—explaining that the best way to win the next midterm election was to offer an attractive governance agenda.

  This time, however, the stakes were higher and the possibility of impeachment less remote. The White House was beset by scandals, resignations, investigations, and indictments. Attempts at damage control faced crushing external pressure and intermittent bouts of presidential sabotage. Even though Republicans in Congress generally stood by Trump’s side, especially after they passed a major tax cut, impeachment came to feel like a plausible endgame. That seemed to excite right-wing talk show hosts and agitators, who rallied Trump’s base with warnings of a coup. At the same time, it energized the anti-Trump #resistance movement. Buoyed by a wave of popular outrage, aggressive Democratic legislators formally proposed articles of impeachment against Trump in November and December 2017. House Democrats then chose Representative Jerrold Nadler—an expert on impeachment—as their ranking member for the Judiciary Committee.

  These developments reflected extraordinary public opposition to Trump, but they also put Democratic leaders in an awkward position. Vanity Fair nicely captured their dilemma with the headline “Will Impeachment Mania Doom the Democrats?”108 Political pundits filled the air with warnings that Democrats risked losing the midterm elections if they stood for nothing more than impeaching Trump. In response, other pundits insisted with equal certainty that dodging this issue would alienate the Democratic base and demonstrate unforgivable cowardice.

  Deploying strategies that she had honed a decade earlier, House Minority Leader Pelosi came down in favor of muzzling impeachment talk. As Politico reported in November 2017, “Pelosi is eager to show her party can govern—in contrast to the chaos surrounding Trump—and she believes that a reputation as the ‘no drama’ Democrats is key to taking back the House in 2018.”109 Senate Minority Leader Chuck Schumer echoed Pelosi in urging caution. But he pointedly left the door open: “There may be a time. It is premature. And to call for [impeachment] now you might blow your shot when it has a better chance of happening. It is serious, serious, serious. And so… you wait.”110

  As we finish this book in mid-March 2018, the American people are still waiting. Thanks to heroic efforts by investigative journalists, the public has become intimately acquainted with the tawdry affairs of Trump’s inner circle. Americans have been flooded with accounts of Trump’s highly irregular conduct in office, as well as his financial dealings in foreign nations. They have com
e to anticipate that his latest tweet might range from a snarky putdown of CNN to blustery threats of a nuclear holocaust. And they have taken a keen interest in Special Counsel Robert Mueller.

  Mueller was appointed by Deputy Attorney General Rod Rosenstein in May 2017 to investigate ties between Russia and the Trump campaign. For good reason, his selection was initially received with bipartisan acclaim. Trump, however, spent much of 2017 desperately trying to demonize and discredit Mueller. He was joined in that effort by a gaggle of right-wing hacks and ambitious congressional Republicans. Their partisan criticism ultimately expanded to encompass the FBI and the entire Justice Department, which Trump denounced as part of the “deep state” (even though he had appointed its senior leadership). As part of this strategy, Trump and his allies sought to distract the public by demanding federal investigations of Hillary Clinton, her associates, and private groups that had found evidence of Trump’s shady conduct.

  Many Democrats now hope—and many Republicans now fear—that Mueller will produce incontrovertible evidence of “high Crimes and Misdemeanors.” We don’t know if these expectations will be met. Even if Trump engaged in misconduct, it’s very difficult to find a smoking gun in these sorts of cases. But we do believe that the nation needs definitive, credible answers to important questions about the 2016 presidential election. At this point, Mueller may be the only person capable of delivering them. We therefore hope that Trump’s cynical strategy will not succeed. Firing Mueller, subjecting him to improper political control, or turning half the country against him would forever condemn an anxious public to disruptive uncertainty. The people of this nation deserve better.

  Given the pace of recent events, we can’t begin to imagine what will happen next. Trump has repeatedly matched law and order with chaos and nihilism. At least until the 2018 midterm elections, his political destiny will be determined by Republicans, who have yet to find a principle they won’t sacrifice at his altar. For the time being, it is solely by virtue of continuing support from congressional Republicans that Trump remains in office. But even if Congress ultimately declines to act against him, it’s clear that impeachment will remain a defining theme of Trump’s presidency—and likely of many more presidencies to come.