To End a Presidency

by Laurence Tribe

  Apart from such an emergency, the Twenty-Fifth Amendment should be reserved for cases of clear presidential inability. And as of mid-March 2018, Trump does not meet that standard under a good faith reading of the Constitution. More fundamentally, it is a grave mistake to view the Twenty-Fifth Amendment as little more than a medicalized version of impeachment. This provision wasn’t meant to function as an all-purpose remedy for buyer’s remorse at having elected a terrible president. Efforts to use it that way invite confusion and conflict that would harm democracy. They also confront steeper political obstacles than an impeachment: whereas the Impeachment Clause requires half the House and two-thirds of the Senate (each for a single vote), Section 4 requires the vice president, a majority of the cabinet, and two-thirds majorities of both chambers (potentially on a continuing basis). And instead of removing the president, the payoff of a Twenty-Fifth Amendment intervention is months or years of continued controversy.

  Given Trump’s disturbing conduct, it is understandable that some critics have shifted their focus from tyrannical acts to the tyrant himself. But in this fragile political moment, using the Twenty-Fifth Amendment to sideline Trump for who he is—instead of debating whether to impeach him for what he’s done—would be misguided.

  As we finish this book, a majority of the American public believes that Donald J. Trump is unfit to serve as president. Many have concluded that Trump threatens American democracy, freedom, and global leadership. Calls to remove him from office are now standard fare in Democratic and “Never Trump” conservative circles. It appears inevitable that demands for Trump’s ouster—and furious denunciations of those demands—will persist so long as he occupies the White House. It’s therefore essential for the public to develop a clear-eyed view of impeachment as a constitutional power inextricable from the political process. Only then can citizens and elected officials properly judge what role, if any, impeachment should play in addressing the myriad challenges that bedevil our democracy.

  In our experience, one of the main obstacles to even-keeled analysis of impeachment under Trump is the fear and fury that he inspires in many of his political opponents. This raw emotion is partly a consequence of broader societal trends toward polarization and hyperpartisanship. But it is also a direct response to Trump’s conduct in office, which has mixed a hard-right agenda with swaggering disregard for the rules and culture of our constitutional order. As journalist Michael Grunwald notes, Trump has repeatedly shattered bipartisan norms of “honesty, decency, diversity, strategy, diplomacy and democracy.”68 Along the way, he has embraced a cruel, reckless, and autocratic approach to exercising power.

  Trump’s antidemocratic vision of the presidency has already led 40 percent of the public to support his immediate impeachment. For many Americans who feel that way, this isn’t any ordinary political preference. It’s an overriding moral and political imperative. They fear that Trump poses an existential threat to our Constitution and the free society it establishes. Moreover, given his access to the nuclear codes and reckless approach to Twitter, Trump could all too easily instigate global war.

  Within that worldview, deposing Trump can assume extraordinary psychological importance. Every additional day of the Trump presidency is cause for anxiety, depression, and fear. This has led some Americans to support a Twenty-Fifth Amendment Hail Mary, which would turn Trump’s mental health into a ground for removal. And it has led many more to preserve their own mental health by resolving that an impeachment will happen, will succeed, and will set everything straight. Consider this parody advertisement, posted online in March 2017, for a fake drug named Impeachara:

  Do you find yourself feeling depressed? Hopeless? Having trouble sleeping? Struggling with frequent panic attacks? Irritability? Constant arguments with family? Friends? Or even friends of friends on Facebook? Yelling at your phone or computer screen? And that constant urge to pull out your hair…

  You may be suffering from T.I.A.D., “Trump Induced Anxiety Disorder.” Impeachara may help…

  Impeachara works on your brain’s neurotransmitters and optical receptors convincing you that Donald Trump has already been impeached. Not all patients have the same reactions. Results may vary. Side effects may include elation, the ability to focus on work and family again, and reconnecting with people you called ignorant fuckfaces on social media.69

  For some Americans, when it feels too awful to imagine Trump remaining in power until January 2020, impeachment offers the glowing promise of a better, saner world. After the orange-faced lunatic is (inevitably) displaced, everything will go back to normal. Even Facebook. Maybe even Twitter.

  Such fantastical thinking about impeachment’s potential has become increasingly common in anti-Trump political circles. We suspect that many people now see impeachment as far more than a political process that would replace Trump with Vice President Michael Pence. Instead, they see it as a general “reset” button to undo the chaos and disruption of the recent past.

  While writing this book, we’ve been asked repeatedly whether impeaching Trump would trigger an immediate special election between Trump and a Democrat, or would prohibit Pence from running in 2020, or would reverse the results of the 2016 election and install Hillary Clinton as president. We’ve also been asked whether a successful impeachment would remove Trump’s life-tenured appointments, including Supreme Court Justice Neil Gorsuch, and whether it would erase all of his executive orders, regulatory actions, and foreign affairs decisions. More than once, we’ve been pushed to explain whether it would be possible to simultaneously impeach Trump, Pence, Speaker of the House Paul Ryan, and Senate Majority Leader Mitch McConnell.

  By now, it should be clear that our response to all of these questions is “absolutely not.” As we saw in Chapter 1, the Framers deliberately chose to limit the consequences of ending a presidency through impeachment. (Moreover, as legislators rather than executive or judicial officers, neither Paul Ryan nor Mitch McConnell is even subject to the impeachment power.) It’s nonetheless intriguing that we’ve received a steady flood of such imaginative, adventurous questions. Some of the inquiries we’ve fielded would make excellent plot lines for House of Cards or Veep, but would be disastrous if attempted in the real world. Others transcend any basis in the Constitution and compose their own genre of escapist political fantasy. All of these questions, however, are unified by an earnest hope that stripping Trump of power would turn back time and mend a broken nation.

  This is a scary moment. We recognize that many Americans are afraid of where the country and the world are heading. We understand that Trump has played (and will continue to play) a substantial role in making things worse. Moreover, we agree that a thorough investigation might well reveal that Trump has committed one or more impeachable acts. But we worry that a large part of the American public has invested too much of its capacity for hope in a supposed impeachment miracle.

  There is no Deus Ex Machina Clause in the Constitution. The impeachment power acts on the world as it is—not as it once was, or as it could have been. Under most circumstances, removing the president from office this way is bound to be divisive and disheartening. Even when taking that step is fully justified, the price may be higher and the benefits more modest than some would envision. In an era that presents weighty challenges to American democracy—few of which will vanish if Trump is expelled—the impeachment power has been burdened with impossible expectations.

  Miraculous thinking about impeachment isn’t an abstract issue. It can cause concrete harms. Too many of our friends and colleagues have succumbed to the nihilistic view that everything is terrible, nothing matters, and only impeachment can fix our problems. (In early 2018, that belief lurks behind claims that Special Counsel Robert Mueller is the only hope for American democracy.) This isn’t to say that support for impeachment precludes political engagement. Millions of Americans who support impeaching Trump have turned out to vote, protest, organize, knock on doors, sign petitions, serve as plaintiffs, and ca
ll legislators. But others may give up as they wait for a white knight to arrive with irrefutable proof of “high Crimes and Misdemeanors.”

  An all-or-nothing mindset, in which impeachment alone can save the world, is depressing and enervating. It relegates most citizens to the sidelines, leaving a handful of secretive insiders in control of the only politics that really matter. As Slate’s Dahlia Lithwick writes, such “magical thinking” can thereby “numb us, and lead to a declining sense of agency or ownership.”70 It can also falsely devalue other ways of defending democracy, including popular activism, local and state political engagement, filing lawsuits, donating to civil rights groups, and undertaking private ventures in the public interest.

  In addition, fetishizing impeachment as a political cure-all can be self-defeating. Trump will not be removed from power unless a large number of Republicans and independents, along with Democrats, agree that he has to go. But the truth is that most of those voters don’t believe the sky is falling. Nor are they automatically inclined to view impeachment as an appropriate sanction for Trump—even when they disagree with him or find him embarrassing. In engaging with those voters, urging impeachment and suggesting that it will undo all of his major decisions could prove counter-persuasive. They may be pleased with some of Trump’s appointments and policies since taking office. They may look skeptically on Democrats who favored impeachment on Inauguration Day. And they may be especially wary of joining an impeachment crusade led by a party they otherwise disdain.

  History teaches that the ways in which people think and talk about impeachment can significantly affect the odds that an impeachment effort will succeed. It is hard enough to persuade the president’s supporters under any circumstances that he should be removed for “high Crimes and Misdemeanors.” We doubt the wisdom of making it harder still by describing that effort as the first shot of a revolution—or, even less realistically, as a revolution in itself.

  Of course, fantastical thinking isn’t confined to those who support removing the president from office. Just as Trump has evoked an unyielding political opposition, so has he instilled intense loyalty within his base. Many Americans who voted for Trump view themselves as belonging to a victimized, disenfranchised class that has finally discovered its champion. For some of them, Trump’s appeal is less what he will accomplish programmatically than whom he will attack personally. Were Trump removed from office by political elites in Washington, DC—even based on clear evidence that he had grossly abused power—some of his supporters would surely view the decision as an illegitimate coup. Indeed, some right-wing leaders have already denounced the campaign to unseat Trump as a prelude to civil war. This rhetoric, too, escapes reality and indulges pernicious tendencies toward apocalyptic thinking about the impeachment power.

  In calling for a clear-eyed view of impeachment, we have emphasized realism over fantasy. Impeachment is neither a magic wand nor a doomsday device. Instead, it is an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents. Deploying this emergency measure always requires extensive national deliberation, as well as agreement from many Americans who originally supported the disastrous leader. Further, even when successfully invoked, impeachment serves only to end a presidency. It doesn’t fix the democratic decline that brought a tyrant to power. It doesn’t undo the havoc he wreaked while in office. And it doesn’t forestall the trauma of expelling him through such extraordinary means. In the wake of an impeachment proceeding, “We the People” must set our world aright.

  Maintaining a realistic mindset is important because the Impeachment Clause demands that we exercise sound political judgment—especially at times of crisis. That isn’t possible when the public ascribes miraculous powers to impeachment; treats it as a weapon of partisan warfare; or seeks to shift responsibility to the Framers, the pollsters, or the criminal code. Facing the impeachment power head on, with all its complexity and limitations, can be frustrating. But as Andrew Shepherd warned in The American President (an Aaron Sorkin film), “America ain’t easy. America is advanced citizenship.” There are no small mistakes when it comes to ousting a president. It’s crucial to get these decisions right.

  And as we’ve seen, impeachment-related judgments are not limited to final votes in the House and Senate. They encompass innumerable choices that arise before, during, and after any hearings on Capitol Hill. On many of these issues, the Constitution says little—or nothing at all. The public must therefore rely upon its general understanding of politics and democracy, sharpened by an appreciation of impeachment’s history and purpose.

  To see what that means in practice, consider this question, which millions of Americans have asked about Bush, Obama, and now Trump: What should I do if I believe the president must be impeached, but a majority of the public doesn’t (yet) agree? The answer to that inquiry may look very different depending upon who has asked it and when they’ve done so. Still, drawing on the framework set forth in this book, we can identify some of the most important considerations that should structure the analysis.

  Let’s start with first principles: when faced with an aspiring tyrant, it is essential to call evil by its name. Presidents who abuse their power, betray the nation, or corrupt their office must be confronted and constrained. There are many checks and balances within our system that can be activated in defense of freedom. There are also many forms of political engagement through which to resist an autocrat. Yet sometimes only the extreme remedy of impeachment will suffice. And the option of expelling an alleged tyrant doesn’t just appear out of nowhere. Ending a presidency requires months or years of concerted political and investigative activity. It also requires substantial public deliberation over the factual, legal, and political case against the chief executive. In other words, removing a tyrant requires impeachment talk—and lots of it. Forcefully advocating in favor of the president’s ouster, and building the infrastructure to support that agenda, is imperative in the lead-up to a successful impeachment.

  But as legislators and presidential advisors have long recognized, and as we explained in Chapter 5, aggressive calls for removal can backfire. Most immediately, they may shore up the president’s support within his own party by intensifying tribalism and partisan polarization. Further, people who voted for a president might simply shut down, rather than change their minds, when faced with such extreme rhetoric. In addition, if the president’s congressional opponents put all their chips on impeachment, they may suffer in midterm elections—unless there is a deep reservoir of voter interest in removal. And if they ultimately prevail in the midterms, those legislators may suffer from a lack of credibility in the impeachment process because they’ve already publicly committed to a particular outcome. Finally, an endless stream of impeachment chatter risks desensitizing the public to abuse—and may thus ironically allow the president more leeway to test the limits of his office.

  Accordingly, there will be circumstances in which the best way to combat an out-of-control executive is to resist frequent public use of the “i-word.” History teaches that views on presidential wrongdoing can be shaped by a wide range of logical and emotional pleas. An all-or-nothing appeal based on impeachment talk is the rhetorical equivalent of a battering ram: direct and forceful. Sometimes that is just what the situation calls for. But at other times building political consensus against a tyrant requires thoughtful, nuanced engagement with his supporters. This is particularly true when an unrelenting barrage of hostility may only increase their sense of political alienation, victimhood, and tribal loyalty. As economist Andrés Miguel Rondón has insightfully observed, it can be vital to avoid “playing into the polarization game instead of defeating it.”71

  The Constitution wisely declines to specify any single approach to combating tyranny. These judgments are always context-dependent. When a president’s opponents conclude that he threatens ruin, they must carefully and tactically gauge what forms of political rhetoric and activity will most effectively
safeguard American democracy. It can’t be taken for granted that impeachment talk (or a full-blown impeachment) will best advance this strategic objective. That decision, too, is context-dependent.

  This analysis leads us to a deeper truth about impeachment’s role in American politics. In the first instance, the impeachment power is a constraint on the president and a check against abuse of executive authority. But its most fundamental purpose is greater still: the preservation of American democracy under the Constitution.

  Invoking impeachment in ways that destabilize democracy is thus perverse and profoundly irresponsible. This is most obviously true of impeachment proceedings, like those against Bill Clinton, motivated by partisan animus and doomed by lack of public consensus. Yet it can also be true of promiscuous, hyperpartisan, and implausible calls for impeachment that reinforce (and accelerate) a cycle of broken politics. To ensure that the impeachment power supports democracy, rather than erodes it, Americans must rehabilitate the distinction between opposing a president and supporting his removal. This will require unlearning bad lessons of the recent past and adopting a saner, more discerning mindset. Impeachment must be treated as a last resort in times of crisis—not as a knee-jerk response to hints of misconduct.

  Admittedly, achieving these goals while Trump remains in office will not be easy. He has abused power in so many ways—and committed so many potential “high Crimes and Misdemeanors”—that calls for impeachment are a foregone conclusion. But even in the short term, American democracy will fare better if we can nurture a more reflective and consensual view of impeachment. Promoting such even-tempered thinking would improve our shared perspective on when ousting the chief executive is really necessary.