To End a Presidency

by Laurence Tribe

  There are numerous compelling explanations for the surge of impeachment talk under Trump. Most of them involve the unique circumstances of his presidency. But this development also reflects dynamics with deeper historical roots and more enduring significance. Since 1998, impeachment has become a weapon of first resort in partisan combat. The post-Clinton normalization of impeachment talk is a dramatic and underappreciated departure from past practice. While it’s too soon to grasp the full implications of this change, we suspect that it will ultimately cause more harm than good.

  To be sure, impeachment talk can sometimes play a valuable role in our constitutional scheme. When a president approaches the outer limits of his power, inspires doubt concerning his mental fitness, or adopts bizarre positions on important issues, demands for his removal may function as an early warning system. In that respect, they might help the American people signal in a peaceful way that opposition to the president has escalated beyond ordinary political disagreement. Such warnings may convince the president to turn back or change tactics. In the alternative, they may invigorate other checks and balances by creating an atmosphere of constitutional crisis. If nothing else, a burst of impeachment talk can allow an outraged segment of the public to blow off steam.

  Impeachment talk is also essential when there is credible proof that the president committed “high Crimes and Misdemeanors.” As we’ve seen, impeachment doesn’t automatically fall from the sky when a president veers toward tyranny. Instead, it’s a fundamentally political process that should involve extensive public deliberation. When a president’s conduct lands him in impeachment territory, the nation must decide how to respond. In those circumstances, it would be irresponsible for the American people not to debate whether removal is warranted.

  But impeachment talk can fulfill its worthy functions only if it is taken seriously. When calls to impeach the president are played on repeat for years at a time, they lose their punch. And two full decades after the Clinton saga, that is where we find ourselves. The normalization of impeachment has trapped the American people in a massive “boy-who-cried-wolf” dilemma. Panicked warnings that the public must impeach or face extinction have dulled our senses and encouraged skepticism. A nation over-saturated with impeachment talk may find it especially difficult to remove a president from office when it’s really, truly necessary.

  Rising partisanship exacerbates this concern. To succeed, an impeachment must transcend party conflict. Since the 1990s, however, impeachment has become increasingly entangled with the daily grind of partisan politics. As a result, the president’s political opponents are quick to frame their major disagreements in terms of impeachment. The president’s supporters, in turn, are quick to dismiss even legitimate impeachment talk as a partisan conspiracy to nullify the last election. This state of affairs is unfortunate. In principle, calls for impeachment should seek to vindicate the constitutional foundations on which all other political debate transpires. In practice, impeachment talk has been degraded in ways that may prevent it from achieving that purpose.

  Even as partisanship has subverted the impeachment power, an overdose of impeachment talk has pushed our politics toward extremes. This dynamic should now sound familiar. When political conflict unfolds in the constant company of impeachment threats, it can feel more existential and all-encompassing. That’s true even when the odds of a successful impeachment are low. Committed to an impeachment mindset, some of the president’s opponents may come to view every skirmish as a battle in their larger war to depose a tyrant. Some of the president’s allies, in turn, may see every challenge as a threat to their leader’s survival and legitimacy. Public fixation on impeachment can thus reinforce tribal tendencies on both sides of the aisle, undercutting compromise and bipartisanship. It can also divert valuable time, energy, and resources from the ordinary business of politics and policy. When the major question on TV and Twitter is whether to impeach, other issues may fail to attract the attention they deserve.

  Perversely, the normalization of impeachment talk can actually leave presidents freer to commit abuses. That’s true for three reasons. First, removal from office becomes less likely when a president’s supporters presumptively view impeachment talk as a tired partisan ploy. Second, as threats of impeachment motivate a president’s base to rally around him, he may worry less about political pushback from within his own party. Finally, the public may punish a president’s opponents at the polls if they’re seen as standing only for the negative step of impeachment.

  This is why recent presidents and their political advisors have deliberately stirred the pot around midterm elections. It’s why Pelosi resisted calls to support impeaching Bush and Boehner did the same with Obama. And it’s why anyone publicly urging impeachment should think strategically about what they’re trying to achieve—especially if their party doesn’t control enough seats in the House to initiate impeachment hearings.

  There are circumstances in which impeachment talk is necessary. There are circumstances in which full-blown impeachment proceedings are necessary. It’s possible that Trump has created those circumstances. But we must proceed with caution. When impeachment talk overtakes our politics, it can cause a lot of harm without doing any good. Since the late 1990s, that dynamic has increasingly afflicted our democracy. If we are going to spend the Trump presidency immersed in impeachment talk, we must reflect carefully on the use and abuse of such potent rhetoric.

  6

  IMPEACHMENT, INCAPACITY, AND BROKEN POLITICS

  More than any other enemy, a rogue president can threaten our freedom, democracy, and very survival. Impeachment ensures that we aren’t left defenseless against abuse and corruption in the Oval Office. Given the risks involved, responsible use of this emergency measure requires political judgment of the first order. But these days, the public is bitterly divided and virtuous statecraft is a lost art. We’ll thus conclude by exploring whether the impeachment power can still protect American democracy in an age of broken politics.

  Popular writing about impeachment often floats free of such real-world considerations. Instead, many commentators focus all their attention on whether particular acts qualify as “high Crimes and Misdemeanors.” At its worst, this perspective flattens the inquiry into a two-step analysis: Would James Madison have viewed the president’s misconduct as impeachable? If so, will the public honor Madison’s wise decision or will “politics” interfere? Approached that way, the political judgments surrounding impeachment are little more than a distraction from the only decision that really matters (which was made for us at the Constitutional Convention).

  Over the last five chapters, we’ve presented a radically different vision of attempts to end a presidency. As we’ve emphasized, impeachments unfold over months or years, through citizen activism, public deliberation, investigations, committee hearings, floor votes in the House, and a Senate trial. They encompass debates over what the president did, whether he poses a continuing danger if he remains in office, and what the consequences of removing him might be. They involve a host of decision makers in Congress, the White House, the Department of Justice, and the news media—not to mention the broader American public. And these judgments can be shaped by a diverse array of political, personal, and policy considerations, many of which have little to do with the president’s guilt or innocence of the alleged abuses. To a conscientious citizen or legislator, this decision encompasses all the risks of impeaching and not impeaching, as well as the adequacy of alternatives. It also involves an assessment of how to pursue impeachment in a manner that pulls the nation together to the greatest extent possible.

  Simply put, an impeachment is a dynamic undertaking deeply enmeshed in the politics of the moment. The Constitution guides and structures the process but rarely tells us exactly what to do.

  Of course, that doesn’t mean we’re wholly at sea. This book has identified some of the most important recurring questions and offerred a historically grounded framework for how to think a
bout them. While impeachments involve many tough decisions, and will often generate strong disagreements, at least those discussions can occur on common ground.

  Public agreement on foundational principles is unusually important here. Without it, the impeachment power cannot function properly. The Constitution denies any fleeting political majority the ability to end a presidency. No matter how compelling the case against a president may seem in the abstract, it can prevail only if 218 representatives and 67 senators are convinced. Ordinarily that means a bipartisan consensus is required—not only in the Senate but also in the electorate. Our constitutional design thus ensures that presidents will be removed only for conduct so appalling that neither political party can abide it.

  In this respect, the Constitution places a life-or-death bet on the American people and their representatives. It gambles that presidential misconduct risking grave harm to the nation will arouse unified popular opposition so strong that it prevails over partisanship, personal loyalty, and political inertia. This is a noble wager. If the public won’t resist tyrants and defend its form of government, the game is already lost. Democracy has never been a spectator sport. Although impeachment exists to save our political system from tyranny, it can do so only if that same political system rises to the occasion in times of constitutional crisis.

  Accordingly, the impeachment power may fail in its essential purpose if an abusive or corrupt president successfully undermines the political preconditions for exercising it. It isn’t hard to imagine how that might occur. There are many ways in which a dangerous president could disorient, divide, or appeal to the American public. Even freedom-loving people have their moments of weakness. And tyranny rarely announces itself by name. Often it creeps up slowly and craftily, pushed by charismatic demagogues who insist that they alone can save us from the challenges we face. The democratic decline that they engineer may seem invisible at first—or may provoke only scattered resistance—until suddenly it’s terrifying and inescapable.

  Moreover, even if a decisive majority of the American electorate does awaken to the onset of tyranny, all it takes to block impeachment is enough support to sway thirty-four senators. Particularly in light of the Senate’s unrepresentative composition, which gives small states an outsized voice in government, a president backed by less than 20 percent of registered voters can become practically immune to removal. For an impeachment threat to be credible, either it must be supported by an overwhelming majority of Americans, or a block of legislators must prioritize their conscience over their prospects for reelection. Neither of these conditions is likely to materialize unless citizens (and their representatives) agree on the principles that limit chief executives—and are willing to take action against presidents who violate them.

  Understanding the practical preconditions for impeaching a tyrant naturally directs attention to the current state of US politics. It may seem quaint in 2018 to invoke the ideal of good-faith, bipartisan consensus—or to suggest that legislators could prioritize constitutional principle over electoral self-interest. Even a casual observer will appreciate that the nation’s politics are brutal, divisive, and shockingly superficial. Warring partisan tribes now define a dysfunctional system. They typically seem less interested in actually governing than in battling for power through flashy, symbolic gestures. That has become especially true of the Republican Party under Trump, who secures extraordinary loyalty from his base by instigating culture war disputes, railing against the system he now heads, and toppling foundational norms of American governance.

  In Chapter 5, we saw the rise and normalization of a permanent impeachment campaign unlike anything in US history. Here we continue that story. We begin with a deep dive into the unhealthy dynamics that have weakened democracy in the United States. With that picture in place, we speculate about the future (and possible failure) of the impeachment power. We also consider a surge of interest in using Section 4 of the Twenty-Fifth Amendment to disempower Trump on the basis of his alleged mental incapacity. Be warned: This is an unsettling and unhappy story about a democracy in distress. But it’s a story whose end we can still rewrite.

  US politics is in a terrible state. That isn’t just a claim about elected officials and party operatives; it’s a claim about our society as a whole. Intense polarization has thwarted consensus on many run-of-the-mill issues—and has defeated most attempts to address clear public policy failures. In this poisonous environment, mustering the national will to restrain a tyrant would be a daunting effort.

  Let’s start with some data. Recent studies from the Pew Research Center reveal the troubling outlines of partisan polarization in the US electorate. In 2017, Pew found that the divisions between Republicans and Democrats on “fundamental political values” had reached record levels, dwarfing divisions along lines of gender, race, religious observance, and education.1 These differences, moreover, were matched by high levels of interparty hostility:

  • Fifty-five percent of Democrats and 49 percent of Republicans said that the other party makes them feel “afraid.” Those numbers jump to 70 percent of Democrats and 62 percent of Republicans if we consider “highly engaged” citizens.

  • Forty-seven percent of Democrats and 46 percent of Republicans said that the other party makes them feel “angry.”

  • Eighty-one percent of both Democrats and Republicans have an unfavorable view of the other party; 44 percent of Democrats and 45 percent of Republicans have a very unfavorable view (those figures have doubled since 1994).

  • Forty-one percent of Democrats and 45 percent of Republicans said that the other party’s policies are a threat to the nation’s well-being (an increase of 10 percent over the past ten years).

  In other words, respectful disagreement has become passé in our conception of politics. Fear and loathing now shape how members of each party view the opposition.

  This polarization extends beyond the political realm. Strong majorities of both parties believe that someone’s political opinions say a lot “about the kind of person they are.” Americans thus presume the worst of people who affiliate differently. Republicans generally view Democrats as close-minded (52 percent), immoral (47 percent), lazy (46 percent), and dishonest (45 percent).2 Democrats reciprocate the malice. Republicans, they say, are close-minded (70 percent), dishonest (52 percent), immoral (35 percent), and unintelligent (33 percent). Although having friends from the other party tends to mitigate these cold feelings, cross-party friendships are increasingly rare. In 2016, 55 percent of Republicans and 64 percent of Democrats reported that few or none of their friends belonged to the other party. At a gut level, Republicans and Democrats don’t understand (or like) each other.

  There are many explanations for the rise of intense partisanship throughout American life. It would be impossible to address them all here. Most scholars agree that conflicting views on racial and economic inequality are a crucial aspect of that story. The parties are now sharply split along lines of race and class—both in membership and in core values. Geographic differences are also highly relevant. In The Big Sort, scholar Bill Bishop demonstrates that Americans “have clustered in communities of sameness, among people with similar ways of life, beliefs, and, in the end, politics.”3 This residential sorting, he contends, has caused not only an “increase in political partisanship, but a more fundamental kind of self-perpetuating, self-reinforcing social division.” Nowhere is that chasm more apparent than along the rural–urban axis, which now plays a central role in defining (and dividing) the parties—leaving the suburbs as the only place left to compete for dominance.

  The upshot of these trends is that partisan affiliation has become increasingly central to personal identity and social relationships. In 2018, the political is personal. When people say how they vote, they reveal more than what policies they favor. They also suggest the likely contours of their lifestyle, moral outlook, and beliefs about what it means to be American. On this basis, membership in the other party is often taken a
s a character flaw, or even as a ground for discrimination. Indeed, it’s socially acceptable to stereotype people for their political commitments in ways that would be unthinkable for almost any other characteristic. As Professor Cass Sunstein astutely observes, “partyism now exceeds racism.”4

  The polarization of the American electorate has contributed to rampant tribalism, in which reflexive loyalty to a party—and hostility to its foes—is assigned overriding importance. That mindset can lead people to support or trivialize conduct within their own political party that they would elsewhere consider morally repulsive. This usually happens unconsciously, as a tribal worldview overcomes individual moral commitments. But sometimes it results from utilitarian logic: when the world hangs in the balance, and one’s enemies are indisputably evil, they must be denied access to power at any cost. Over time, commentator Ross Douthat explains, this tribal reasoning can transform “otherwise decent people into defenders of the indefensible.”5

  In 2013, for instance, a poll found that 13 percent of US voters believed that President Barack Obama was literally the Antichrist.6 With Lucifer in the White House, why quibble over any bad acts by Republicans? Under Trump, that mindset has grown deeper roots on both sides of the aisle: he must always be supported or opposed, no matter the cost. As former right-wing radio host Charlie Sykes notes, “in this political universe, voters accept that they must tolerate bizarre behavior, dishonesty, crudity and cruelty, because the other side is always worse; the stakes are such that no qualms can get in the way of the greater cause.”7