This is not an easy case. The president is commander-in-chief, and when a war is ongoing, his principal task is to win. In the midst of a war, no president is likely to tell the whole truth and nothing but the truth. True, the president has committed no crime. Reasonable people could urge that even a series of falsehoods, during a war, is not legitimate grounds for removing a president from office. The goal is to do what is necessary to win.
Nonetheless, he is impeachable (in my view). Even in the midst of war, a sustained pattern of lying to the American public can be counted as a misdemeanor—an abuse of public trust with respect to a matter central to governance. Lying to Americans about extramarital affairs is bad. But lying to Americans about the rationale for a war, and for putting human lives on the line, is impeachable. Even with respect to war, We the People are ultimately in charge. If a president does not care about the truth, and repeatedly lies in ways material to the fulfillment of the duties of his office, he is abusing his authority. (Recall that during the founding era, lying to the Senate was singled out as a legitimate basis for impeachment.)
In the aftermath of a serious terrorist attack in Chicago, a president engages in a host of actions that are widely seen as unlawful violations of civil rights and civil liberties. He supports, and authorizes, the detention of suspected sympathizers with the enemy; his test for suspicion includes an inquiry into people’s religious convictions. (Muslims are at special risk.) He supports, and authorizes, a crackdown on speech that is (in his view) injurious to the war effort and in particular the recruitment of soldiers. He supports, and authorizes, widespread surveillance of American citizens (including of cell phones and emails); he believes that “privacy is now a threat to national security.” Several of these actions have been struck down in federal courts.
This is a more severe version of case 11, and it might seem to be easy, but it isn’t. Two of our nation’s greatest presidents—I would rank them at the very top—engaged in serious violations of civil rights and civil liberties in the midst of war: Abraham Lincoln and Franklin Delano Roosevelt. Lincoln suspended the writ of habeas corpus. Roosevelt ordered the internment of 117,000 people of Japanese descent living on the West Coast, two-thirds of whom were native-born citizens of the United States.
If the nation faces a serious threat, the president’s most important job is to avert that threat, and there can be good arguments that civil rights and civil liberties have to yield. On the other hand, Japanese-Americans did not pose a threat to our security, civil rights and civil liberties are foundational to our constitutional order and our democracy, part of what we fight for—and in the example, I am stipulating that the president has acted unlawfully.
In such cases, we lack hard-and-fast lines, and so there is no escaping a judgment about matters of degree. Categorical statements make little sense. Relevant questions: Under the law, does the president have a good-faith argument, or not? How egregious, exactly, are the violations? How many are there? If the president is systematically ignoring constitutional restrictions on government’s power, impeachment is a legitimate response.
A president makes a host of erratic decisions, and they lead to domestic and international turmoil. The economy is suffering badly; markets are collapsing; the world is a far more dangerous place. The problem is not that the president is literally incompetent. It is that his judgment is so terrible, and so terrible so often, that there is a bipartisan consensus, more or less, that he needs to go.
Reasonable people can differ about whether the president is impeachable. Of course policy disagreement is not a legitimate basis for impeachment. Intense unpopularity should not trigger impeachment. Presidents are allowed to make mistakes—a lot of them. The United States does not allow votes of no confidence; impeachment is not about that.
Here again, what is necessary is a judgment of degree. If there is a bipartisan consensus, more rather than less, that a president needs to go because of a host of genuinely erratic decisions, we can fairly speak of gross neglect of duty, to a degree that makes impeachment legitimate. Wise people tread cautiously here, but if the facts are awful enough to establish constitutionally unacceptable misdemeanors, he is impeachable. Recall my institutional suggestion: in the hardest cases on the constitutional issue, We the People, acting through the constitutional channels, get to define “misdemeanors” as we see fit.
The nation is not in the midst of war, but a president lies, constantly and on important occasions, to the American people. The lies involve the budget, taxes, and foreign policy. We are not speaking of “spinning,” even in its least attractive forms. We are speaking of lies.
This case is comparable to case 15, and in a way it is easier: impeachment is available. It is easier in the sense that the president does not have the justification that is arguably provided by an ongoing war effort. At the same time, the line between spinning and lies can be less than clear, and if a president is impeachable whenever he crosses that line, we are going to see a lot of impeachments. In addition, it is plausible to say that even a lot of lying is not anything like treason or bribery, or the high crimes and misdemeanors on which the Constitution focuses. Again, if the pattern of lying is repeated enough and egregious enough, so that we are speaking of an abuse of trust, impeachment is on the table.
Terrible things happen on a president’s watch. White House officials are involved in a variety of illegal activities. Members of the president’s cabinet also violate the law, and a number of them engage in actions that are struck down in court—regulating when they lack authority to regulate, deregulating when they lack authority to deregulate. It’s a mess. (OMG.)
What makes this a tough one is that the objectionable conduct is not directed by the president himself. Can the commander-in-chief be impeached if his underlings do unlawful or terrible things? The founding-era debates do not resolve that question, which should be answered by asking exactly how terrible they are. As Harry Truman famously said, “The buck stops here,” and because the president is in charge of the executive branch, he is the one to blame if horrible decisions are made. Of course the president cannot be impeached if the secretary of transportation issues an unlawful regulation or if the secretary of state commits some kind of crime. Recall that “maladministration” is not a legitimate basis for impeachment. But if the executive branch is engaged in systematic misconduct, if it occurred on the president’s watch, and if he failed to do anything about it, we have likely crossed the threshold into misdemeanors within the meaning of the Constitution.
Congress is engaged in an investigation of alleged presidential wrongdoing. The president strenuously resists the investigation. He refuses to turn over documents. He asserts executive privilege. He also threatens a special prosecutor, appointed by his own Department of Justice. “If you don’t back off,” he makes clear, “I am going to make life miserable for you.” He says to the Director of the Federal Bureau of Investigation: “You work for me, and one thing that you’re not going to do is to investigate your own boss. That’s an order.”
This case presents a continuum of actions, and the proper conclusion depends on where we are on the continuum. A president’s refusal to turn over documents is certainly not impeachable if he has a good-faith argument that he is not required to turn them over. (See chapter 6.) Congressional investigations are often motivated by politics, and turn out to be a form of grandstanding. Within limits, the president is entitled to resist those investigations. We can go further. Even if the president’s refusal to cooperate is a clear violation of the law, there may be no impeachable offense. As we have seen, a cover-up of activity that does not amount to a high crime or misdemeanor may not itself amount to a high crime or misdemeanor. I put that in italics because it is both important and easy to overlook.
In the cases of Nixon and Clinton, the public debated whether the president engaged in obstruction of justice, under the
apparent assumption that the answer to that question simultaneously answers the question of impeachment. That is a major mistake. Obstruction of justice need not be a high crime or misdemeanor. If the president obstructs an investigation into his own illegal investments before becoming president, there is probably no impeachable offense. (I use the word “probably,” and the phrase “may not” in the italicized sentence, because large-scale misuse of the apparatus of the federal government could be a misdemeanor.) And if the president obstructs justice with respect to use of marijuana by White House staff, impeachment would be absurd (unless large-scale misuse of that apparatus is involved).
If, on the other hand, the president engages in actions that fall short of obstruction of justice, we might nonetheless have a misdemeanor within the meaning of the Constitution, depending on the substance of the investigation. If the FBI is investigating an act of presidential treason or bribery, themselves impeachable, then serious interference with the investigation could count as a misdemeanor. That conclusion holds whether or not the interference meets the technical standards for obstruction of justice.
A president hires a gunman to murder someone simply because he does not like him. There is no political motivation; the dispute is entirely personal.
It is surprising but true that this is not a simple case. On one view, there is no abuse of distinctly presidential powers, and hence no impeachable offense. (If the president has used the power of the office to arrange for the murder, then the case becomes easy.) On another view, the president can be impeached for this level of private misconduct, on the theory that murder is an exceptionally serious crime and the president is not likely to be able to govern after committing such a crime.
The Constitution would not make a lot of sense if it did not permit the nation to remove murderers from the highest office in the land. We should interpret the Constitution to make sense.
chapter 8
The Twenty-Fifth Amendment
If impeachment is available only for serious offenses, criminal or otherwise, then a large gap remains. What if a president has not committed any such offense, but suffers from a disability (physical or mental), such that he is unable to serve as commander-in-chief, or is otherwise unfit to continue in office? Suppose that he is stricken by Alzheimer’s disease or crippling depression, or is showing some kind of emotional or cognitive decline.1 Suppose that he is acting more than a little crazy. Can a president be removed if, as a result, he is unable to do his job? Who gets to remove him? Recall James Madison’s claim that a president could be impeached if he suffered from “incapacity.” But unless incapacity leads to a high crime or misdemeanor, the impeachment mechanism isn’t the right one. What else is there?
In 1981, I was privileged to work as a young lawyer in the Office of Legal Counsel in the Department of Justice. OLC, as it is called, serves as the president’s legal brain trust. I joined OLC in 1980 under President Jimmy Carter, when his administration was winding down. I continued to work there after the election of President Ronald Reagan, who was brimming with new plans and ideas, some of which raised serious legal issues.
Just a few weeks after Reagan’s inauguration, my terrific and farsighted boss, Theodore Olson, brought me into his massive, wood-paneled office on the famous fifth floor of the Department of Justice, and asked me to write a detailed, formal memorandum on the third and fourth sections of the Twenty-Fifth Amendment. I prided myself on knowing something about the Constitution, but I had to stay quiet. The reason? I had no idea what that amendment said.
I didn’t confess my ignorance. Instead I told Olson that I would get right to work. After I left his office, I immediately looked up the text, and here’s what I found:
Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.2
Oh.
I was amazed by what I read, not because the text was entirely unfamiliar, but because that was what Olson wanted me to write about. The provisions are intriguing, and they have plenty of mysteries, but Olson’s request for a full-scale memorandum seemed bizarre.
The reason is that as a general rule, OLC’s work was (and is) focused on immediately pressing legal issues, sometimes even crises. Maybe the Department of State disagrees with the Department of Defense on some legal question. Who’s right? Or the president’s base wants him to stop abortion, without amending the Constitution. Is that possible? Or the president wants to use military force in some distant land, and lacks congressional authorization. Can he do that?
By contrast, these sections of the Twenty-Fifth Amendment seemed to deal with an entirely hypothetical problem. President Reagan was about to have his seventieth birthday, but he was the picture of good health. Why was I asked to write that memorandum? It seemed like pretty academic work. As Olson explained it, my memorandum was for general background, in the unlikely event of a catastrophe.
Almost exactly one month later, John Hinckley, Jr. shot Reagan.
In the Cockpit
On the fifth floor of the Justice Department, about ten of OLC’s lawyers sat crowded around a big television set, watching the news anchors, who explained that the president was in the hospital but apparently fine. Though the shooting was dramatic, traumatic, and riveting, the commander-in-chief was not in serious trouble. National crisis averted. As I sat in the little group, I felt a tap on my shoulder. It was Olson, who needed to speak with me privately. He took me into a hallway, where his voice lowered to a whisper.
“The president is in much worse shape than they’re saying,” he explained, in a cool, steady voice. “We don’t know what will happen, but we need to be prepared. You remember the details of your Twenty-Fifth Amendment memorandum, don’t you? You know what to do?” He explained that of the countless lawyers in the building, I was the only Twenty-Fifth Amendment expert. I needed to get to work immediately.
The top officials at the department left for the White House, and for two hours or so I was manning the fort, sitting alone in Olson’s office, in front of those huge desks. My entire hall looked empty, so it seemed as if no one else was in the entire Justice Department.
Just three years out of law school, I had been asked, in the strictest confidence, to write two memoranda to remove the recently elected Reagan from the presidency.
The first, to be signed by Reagan himself (if he was able), would comply with Section 2 of the Twenty-Fifth Amendment. It would be a written declaration that he was unable to discharge the powers and duties of his office. The second, to be signed by Vice President Bush and the cabinet, would make the same declaration.
On an old manual typewriter, I typed out the two memoranda. The need for secrecy was such that no secretary could be involved. In the second memorandum, I left black lines for the relevant signatures (those seemed the most momentous parts), and I typed out all their names, letter by letter. As I recall, my hands did not tremble; it must have been the adrenaline. The task was mechanical, but I have never been more intensely focused. I remember that typing as if it were yesterday.
I sealed the two memoranda tightly in a yellow envelope, and a messenger hand-delivered them to the White House.
Of course members of the press were constantly calling the department, and no one important was there to answer their questions. Trying to seem authoritative, but actually in a mild panic, I told the secretaries I would not speak to anybody. I had no idea what I could or should say. But the New York Times must have been particularly insistent, because its reporter was put through to me. He had one question: “We have a report that the department has just sent over two memoranda, by which the vice president would assume the presidency. Can you confirm that?” I was flabbergasted. How on earth did they know that?
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