Impeachment- a Citizen's Guide

by Cass R Sunstein

  To be sure, some people might think that a narrow understanding of high crimes and misdemeanors—limited to actual crimes—would avoid a lot of trouble. But would it really make sense to say that the president could not be impeached if he announced that he would not defend the country against attack or enforce the civil rights laws—or that he is going to spend a year on vacation in Rome?

  True, some people might think that a broad understanding, allowing the House of Representatives to define high crimes and misdemeanors however it wishes, would prevent a lot of mischief, while allowing more control by We the People. But such an understanding would breach the separation of powers. It would create the problems that Madison rightly feared. If these considerations are right, it makes sense to stick with the framework that the founding generation devised, very much as they understood it.

  Let’s use that framework to explore concrete problems. I am betting that the exploration will increase rather than reduce our admiration for the founding generation’s understanding—and our desire to follow it.

  chapter 6

  Impeachment, American-Style

  Andrew Johnson and Bill Clinton were impeached by the House—but the Senate refused to convict either of them. Richard Nixon resigned before he could be impeached (as he almost certainly would have been). The other forty-two presidents never faced a serious impeachment threat. Well, one did, but let’s not spoil the surprise.

  You might think that three is a pretty trivial number and that we can’t learn a lot from such a small number of impeachment proceedings. But history has a lot to offer. In fact, the small number may itself be the largest lesson.

  One of the best ways to keep faith with the founding document is to avoid resorting to the impeachment mechanism without sufficient cause. Use of the mechanism can transform political disagreement into charges of criminality or egregious wrongdoing. (“Lock him up!”) It can be a way of stirring up the ugliest forces of anger and destruction. It can be a product of, and fuel, scandal-mongering and fake news. It can jeopardize the separation of powers. It can be profoundly destabilizing. It focuses the nation’s attention on whether to remove its leader—rather than how to promote economic growth, reduce premature deaths, increase national security, or cut poverty. It can increase partisan rage, with the suggestion that the principal figure in one of the nation’s political parties, and the winner of a national election, is not merely a bad president but guilty of terribleness and horrors. It leads political opponents to focus obsessively on how to prove that terribleness and those horrors, whether or not they exist.

  It’s a national nightmare, a body blow to the republic, even if it is also the best or the only way to keep it. Using the impeachment mechanism only when its use is warranted is as important as any other instruction from the founding period—and the United States has generally followed that instruction.

  The Worst Presidents

  Periodically, historians are asked to rank the nation’s presidents. Washington, Lincoln, and Franklin Delano Roosevelt are almost always at the top. But I’m not interested in the best. Here’s a list of the fifteen worst, according to a survey of presidential historians in 2017.1 I’ve put them in reverse order of badness:

  James A. Garfield

  Benjamin Harrison

  Zachary Taylor

  Rutherford B. Hayes

  George W. Bush

  Martin Van Buren

  Chester Arthur

  Herbert Hoover

  Millard Fillmore

  William Henry Harrison

  John Tyler

  Warren G. Harding

  Franklin Pierce

  Andrew Johnson

  James Buchanan

  Thirteen of the fifteen avoided any kind of impeachment inquiry. Harding, Pierce, and Buchanan are almost always ranked among the worst of the bad, and they were exceedingly unpopular in their time. But there was no serious effort to get rid of them. The essential point is clear: intense political opposition, and even a general sense that the president is a failure, is not sufficient cause for impeachment. In the post-Nixon era, Jimmy Carter is sometimes regarded as the least successful president, and for him, impeachment talk would have been ridiculous.

  It is also noteworthy that in the first forty years of the republic, the House of Representatives made no serious impeachment attempt, even though that period saw some pretty bad presidents. To be sure, we can find noises and sputtering. During early debates over the relationship between the United States, England, and France, George Washington sent Supreme Court Chief Justice John Jay to London, where negotiations led to a controversial treaty (the Jay Treaty). Republican legislators in Kentucky and Virginia didn’t much like the treaty, and they supported impeachment of Jay and perhaps Washington himself.2 But their efforts never went anywhere. The absence of any serious impeachment process is informative, because it suggests a clear understanding, on the part of the founding generation and its successor, that truly egregious misconduct was required.

  The First Impeachment Attempt

  It’s not widely known, but the first real attempt at impeachment did involve one of the worst presidents: John Tyler in 1842.

  The precipitating offense was Tyler’s use of the presidential veto. In the early days of the republic, vetoes were quite unusual, and they were generally based on constitutional objections rather than objections from the standpoint of policy. Tyler departed from that practice: he used vetoes on prominent occasions and solely on policy grounds. His opponents initiated an investigation with the aim of impeaching him. By a narrow majority, the House endorsed a select committee report that condemned his use of the veto and laid the groundwork for possible impeachment, finding him a “fit subject” for that without specifically recommending it.3

  The steam went out of the effort in the mid-term elections, when the Whigs, who were leading the whole effort, lost their majority in the House. But early in 1843, John Minor Botts of Virginia gave a barn burner of a speech, accusing Tyler of “corruption, malconduct, high crimes and misdemeanors,” and asking for the formation of an investigating committee on the basis of an astoundingly long list of specified transgressions. Here’s a taste (feel free to skim):

  First. I charge him with gross usurpation of power and violation of law, in attempting to exercise a controlling influence over the accounting officers of the Treasury Department, by ordering the payment of amounts of long standing, that had been by them rejected for want of legal authority to pay, and threatening them with expulsion from office unless his orders were obeyed; by virtue of which threat, thousands were drawn from the public treasury without the authority of law.

  Second. I charge him with a wicked and corrupt abuse of the power of appointment to, and removal from, office; first, in displacing those who were competent and faithful in the discharge of their public duties, only because they were supposed to entertain a political preference for another; and, secondly, in bestowing them on creatures of his own will, alike regardless of the public welfare and his duty to the country.

  Third. I charge him with the high crime and misdemeanor of aiding to excite a disorganizing and revolutionary spirit in the country, by placing on the records of the State Department his objections to a law, as carrying no constitutional obligation with it; whereby the several States of this Union were invited to disregard and disobey a law of Congress, which he himself had sanctioned and sworn to see faithfully executed, from which nothing but disorder, confusion, and anarchy can follow.4

  A roll call vote was called, and a strong majority rejected the proposal to take an initial step toward impeachment: 127 to 83.5

  Without going through Botts’s long list, let me make three observations. First, the case he laid out for impeachment was at least in the very general ballpark of the concerns of the impeac
hment clause. Botts spoke in terms of what he saw as egregious abuse of presidential authority. Second, it would be impossible to defend the claim that Tyler was impeachable because of his use of the veto; Tyler had a perfectly reasonable argument, vindicated by subsequent history, that the president has the authority to veto legislation on policy grounds. Third, most and perhaps all of Botts’s charges, however colorfully made, were really about acute policy disagreements. It is no wonder that a number of Whigs joined Democrats to defeat the motion.

  Politics

  The largest lesson of the three serious impeachment efforts is simple: in each case, it was an overwhelmingly partisan affair. It was sought and engineered by people who were determined to bring down a president they despised. As always, Hamilton was prescient, noting in Federalist No. 65 that in many cases, the trial of impeachments in the Senate “will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”6 Right.

  It is ironic that the two successful presidential impeachments were unconstitutional, even farcical—case studies in what the United States should avoid. But the third impeachment proceeding, halted with Nixon’s resignation, was a profile in constitutional courage, even if “the comparative strength of parties” played a massive role.

  Watergate

  President Richard Nixon was smart and shrewd. He mastered the details. He saw the big picture. He did great things, which continue to define our nation. He was a Republican and a conservative, but he was tough to pigeonhole. He created the Environmental Protection Agency, claiming that clean air and clear water are “a birthright for every American.”7 He created the Occupational Safety and Health Administration. He promoted self-determination for Native-Americans. He signed the great civil rights law that prohibited sex discrimination in higher education. He reoriented the Supreme Court. He calmed tensions between the United States and the Soviet Union. He went to China. If you are listing the five most consequential presidents in American history, you could make a good argument that Nixon belongs on the list.

  His enemies called him “Tricky Dick.” He lacked charm and charisma. On camera, he would sweat at inopportune moments. In private, he could be brutal. Washington, he said, “is full of Jews.” In his view, that was a problem, because “most Jews are disloyal.” One of his campaigns was based on three words: “law and order.” But he didn’t seem to care so much about obeying the law. He lied to the American people. He kept an enemies list.

  If you were born before 1965, you probably remember the Watergate controversy. If you were born after 1985, you might not know why so many controversies have “gate” at the end—as in Irangate, Russiagate, Troopergate, Travelgate, Traingate, Spygate, Tigergate, TaylorSwiftgate. (Okay, I made up the last one, but still.) In a nutshell, here’s what happened.

  In May 1972, several people broke into the Democratic National Committee’s headquarters in the Watergate complex, in Washington, DC. They planted “bugs” in the headquarters’ phones and photographed documents. The break-in was successful in the sense that no one even knew about it at the time. But evidently the bugs were faulty. A month later, there was another break-in at the same place. This time, a security guard noticed that the lock on a basement door had been taped over. He called the police, who spotted and arrested the burglars.

  At first, the whole event seemed random, even bizarre. The burglars were interested in neither jewelry nor money. They were trying to install microphones in the phones. A puzzle: Why were burglars interested in listening in on conversations in the headquarters of the Democratic National Committee?

  It turned out that they had a link to President Nixon. Copies of the White House phone number of Nixon’s reelection committee were found in the burglars’ belongings. Was the White House behind the criminal action? To alleviate suspicions, the president spoke to the nation in August, reassuring the public that White House employees were not responsible for the break-in. I remember that speech, and it was convincing. Under pressure, Nixon usually delivered. He won a smashing victory that November, obtaining more than 60 percent of the vote and carrying no fewer than forty-nine of the fifty states. His opponent, George McGovern, was crushed in the Electoral College, 520 to 17. (He won Massachusetts and the District of Columbia.)

  It later emerged that there was indeed a connection between the burglary and Nixon’s White House. Whether or not Nixon and his team had in some sense authorized the break-in, they had arranged to pay “hush money” after the fact to the burglars, and his White House apparently tried to enlist the Central Intelligence Agency to help counteract the FBI’s investigation into the burglary. At its heart, the Watergate scandal is a tale of a cover-up—not the worst thing in the world, but not good. Impeachable? We will get to that.

  The investigation—by the media, by the Department of Justice, and by Congress—ended up revealing more and worse. Nixon was abusing presidential authority in ways that involved far more than snooping on Democratic political figures. In view of Nixon’s extraordinary skills, his defining achievements, and his genuine sense of patriotism, it is an enduring puzzle how he and his White House could have ended up doing what they did.

  My own speculation is that it was a product of the intense political polarization of the time, following the 1960s, in which many millions of people admired Nixon, and many millions of people utterly despised him. Republicans and Democrats saw one another as enemies, producing gross abuse and illegality, on the part of the White House, not all at once but by increments—drip, drip, drip. The president’s acute sense of mission and his own rectitude, combined with his fear and loathing of what his (often hate-filled and in some cases nutty) enemies stood for and might do, led to a White House culture that produced, by degrees, a series of measures that (I like to think) would have appalled and horrified Nixon himself at the start of his presidency. The whole story is long and sordid, and you can read all about it elsewhere.

  Let’s focus instead on the alleged grounds for impeachment. Formally, impeachment proceedings start with the drafting of “articles of impeachment,” which are written and voted on by the designated committee within the House of Representatives. If the committee votes in favor, the articles proceed to a vote in the full House. In the case of Nixon, several articles received serious consideration by the Judiciary Committee of the House of Representatives. Because of his resignation, there was no vote in the full House. As we will now see, one of the articles provided a very weak basis for impeachment.8 One of them, however, offered a very strong basis and two of them were in the middle, but strong enough.

  No

  The Internal Revenue Service ruled that in his first years in office, Nixon underpaid his taxes by a total of more than $400,000. Note that he did that as president, not as private citizen.

  That’s a lot of money (especially if you adjust for inflation). You could argue that such a large underpayment, from a president with access to the finest legal advice, was a product of something much worse than mere negligence. But tax evasion isn’t an impeachable offense. It’s not an abuse of official authority. It’s in a wholly different category from the high crimes and misdemeanors that concerned Madison and Hamilton, and that would justify impeachment. The vote against proceeding was 26 to 12.9 It should have been 38 to 0. (To the twelve Democrats who voted in favor: not good.)

  Probably

  The House and Senate are fiercely protective of their own prerogatives, not least when they are seeking materials from the executive branch. They take their investigations seriously (even if their principal or sole motivation is political). They do not like to be thwarted. For its part, the executive branch is deeply suspicious of investigations, thinking that they are efforts to make politic
al hay. Its officials do not love to hand over documents. They are fiercely protective of their own deliberative processes, and that is true whether the president is Republican or Democratic.

  If White House officials are speaking to one another behind closed doors, the president’s lawyers will not want Congress or the public to know what they have said. And if the president himself is involved in the conversations, the executive branch will vigorously resist disclosure. There is a legitimate reason for that resistance: if advisers are to be candid, and to venture their arguments and express concerns, it is important for them to know that they can speak in confidence. With this point in mind, the executive branch will probably even claim that the Constitution itself protects the president’s right to keep things confidential.

  In 1974, the Supreme Court agreed with that claim, ruling that the president has a presumptive right not to disclose his conversations. (The case had a terrific name: United States v. Nixon.) The Court emphasized the need for candor. In its view, a presidency cannot function if the boss and his advisers are unable to keep their discussions private. At the same time, the Court ruled that the presumption could be overcome by a showing of a demonstrated, specific need for evidence in a pending criminal trial. (And so the United States won, not Nixon.10) The Nixon holding does not speak to legislative investigations. But you could read the Court’s opinion to suggest that if Congress believes that the president has committed a crime, if that belief has some evidentiary basis, and if Congress can make a strong showing that it has a critical need for specific information for legitimate purposes, it can probably get the information it seeks.11