About this Issue
Impeachment is the constitutional remedy when elected officials are guilty of a serious wrongdoing. But is it worth the risks? Does it damage the integrity of our institutions, or is it just another one of the measures that we may resort to, although—preferably—not too often?
In the lead essay for this month, Cato Vice President Gene Healy argues that we have exaggerated the damage that an impeachment can do to our constitutional system, and that perhaps this measure should not be regarded as so extreme after all. Answering him will be Prof. Bob Bauer of the New York University School of Law, Prof. Sanford Levinson of the University of Texas, and Ross Garber, a legal analyst for CNN who is among the most experienced impeachment attorneys in the country.
This is a timely topic. It’s also bound to be controversial. Comments are open, but we ask with more than the usual urgency that readers remain temperate and civil as they discuss this month’s essays.
A Constitutional Safety Valve
Impeachment is a constitutional safety valve, not to be triggered lightly, but available for public protection when needed. Yet judging how they talk about it, many of America’s political and intellectual leaders have come to view the remedy itself as a menace to ordered liberty—a sort of doomsday device that the Framers, in their perversity, wired into our Constitution. NYU Law’s Bob Bauer terms this orientation “Impeachment Anxiety Syndrome,” a coinage that, if anything, understates its intensity. Our political culture has drifted past a prudent reluctance to “normalize” impeachment, toward something approaching mortal fear of the impeachment process.
“Be very careful before you move the country toward impeachment,” former independent counsel Ken Starr warns, “It’s inherently divisive.” (Now he tells us.) In fact, says Bill Clinton’s erstwhile nemesis, “Impeachment is hell.”
In early 2018, after delivering a fiery speech likening President Trump to Stalin, then-Senator Jeff Flake (R-AZ) clarified his position: he’s “not one of those who run around calling for our president to be impeached. He’s done nothing in my view that would warrant that.” That March, when Trump appeared poised to fire special counsel Robert Mueller, Flake conceded that impeachment might be a last resort, but sounded positively panic-stricken about the prospect: “Nobody wants to talk about it. I don’t want to talk about it. As soon as you mention the I-word, that’s all people want to talk about.” Running for a Senate seat last Fall, Mitt Romney was less agitated, if only because he found the very idea inconceivable: “I don’t think it makes sense to be talking about impeachment, not for a sitting president”—a stipulation that would somewhat hamper the remedy’s usefulness.
Impeachment aversion isn’t limited to Trump’s critics on the Right. Even liberal comedians and professional Blue-Team partisans recoil from “I-word” talk. “If Donald Trump is to leave office, it should be through political means,” says Late Show host Stephen Colbert, not “extreme constitutional remedies.” “If we ‘normalize’ impeachment as a political tool,” frets former Obama campaign guru David Axelrod, “it will be another hammer blow to our democracy.” One could hardly find a more rabid critic of the current president than Harvard’s Laurence Tribe, who’s variously described Trump as “batshit crazy,” a “crime boss,” and “compromised by foreign dictators.” Yet Tribe, too, insists that impeachment should only be approached in fear and trembling. In their 2018 book To End a Presidency, Tribe and coauthor Joshua Matz admonish that impeachment is “a great power and a terrible one,” its use fraught with “extraordinary danger.” If, God forbid, we ever need to deploy it, “we can hope only that the nation survives with its spirit intact and the strength to rebuild all that’s broken.”
Is impeachment really as grave as all that? Our Constitution’s Framers were considerably less angsty about it: few, if any, viewed the prospect of a presidential pink-slip with the unbridled horror now common among political and intellectual elites. At the Philadelphia Convention, Massachusetts’ Eldridge Gerry insisted: “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.” Benjamin Franklin viewed the clause as “favorable to the executive,” providing for “regular punishment… when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” North Carolina’s Hugh Williamson thought there was “more danger of too much lenity than of too much rigour towards the President.” Given our paltry record of presidential impeachments—only three serious attempts in 230 years—Williamson was more right than he knew.
To be sure, the attempted removal of a “sitting president” was serious business, never to be undertaken casually. In Federalist 65, Hamilton writes of “the awful discretion, which a court of impeachments must necessarily have, to doom [the accused] to honor or to infamy.” He also believed that discretion to be necessary, periodically, as “an essential check in the hands of [the legislative] body upon the encroachments of the executive.”
In that essay, Hamilton described impeachment’s scope as involving, “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” By its nature, such a proceeding “can never be tied down by such strict rules… as in common cases serve to limit the discretion of courts.”
In fact, the constitutional grounds for impeachment are much broader than popularly understood. In its comprehensive 1974 report on the subject, the House Judiciary Committee staff identified three categories of misconduct held to be impeachable offenses in American constitutional history: (1) exceeding the constitutional bounds of the office’s powers; (2) using that position for personal gain; (3) “behaving in a manner grossly incompatible with the proper function and purpose of the office.”
Any citizen following our public debate—listening to Alan Dershowitz or even Nancy Pelosi, for example—would come away with a much narrower understanding: one that limits constitutional impeachment to large-scale, criminal abuses of official power.
But had the Framers restricted impeachable offenses to crimes, for example, impeachment would have been a dead letter from the start. In the early years of the republic, there were hardly any federal crimes on the books. Of our first three impeachment cases (1797–1805) only one involved anything that could be described as criminal behavior. And throughout our entire constitutional history, according the Congressional Research Service, fewer than a third of the impeachments approved by the House “have specifically invoked a criminal statute or used the term ‘crime.’”
The early cases, in the decade and a half following ratification, reflect a liberal understanding of “high Crimes and Misdemeanors.” In fact, the first impeachment case to result in conviction and removal from office involved a federal judge whose main offense was showing up to work drunk and ranting like a maniac in court. That was John Pickering, who, according to the articles of impeachment passed by the House in 1803, had revealed himself to be a man “of loose morals and intemperate habits,” guilty of “high misdemeanors, disgraceful to his own character as a judge.” And throughout American history, federal officers have been impeached for offenses ranging from petty corruption, to neglect of duty, to withholding information from Congress, and degrading public confidence in their fitness to wield power.
At the Constitutional Convention, James Madison described impeachment as an “indispensable” provision for “defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate.” Unlike modern commentators, Madison worried less about the destabilizing effects of removal than the perils of keeping an unfit president in office. The unitary nature of the presidency made incapacity or corruption far more dangerous in the executive branch than in Congress or the judiciary. “The Executive magistracy… was to be administered by a single man,” and “loss of capacity” in that case “might be fatal to the Republic.”
And yet, when it comes to the chief executive officer of the federal government, we’ve all but dispensed with the option. In the 230 years since the Constitution’s ratification, we’ve impeached only two: Andrew Johnson in 1868 and Bill Clinton 13 decades later. True, the impeachment process drove Richard Nixon from office, even though he resigned before the full House could vote—so call it three. That still means that only around one in 15 presidents has ever faced a serious threat of removal from office.
Historically, three quarters of American presidents never even faced a theoretical threat of removal. Though any member of the House can introduce articles of impeachment, it’s vanishingly rare that anyone tries. In our entire constitutional history, only 11 of 44 presidents have had articles formally drawn up against them.
In To End a Presidency, Tribe and Matz argue that lately, however, the I-word has become distressingly “normalized”—“modern Americans live in the post-Clinton age of a permanent impeachment campaign.” There’s no doubt that impeachment talk has become far more common since Donald J. Trump’s election—its prevalence is another indication that this presidency, and perhaps the reaction to it, is “not normal.”
But one has to strain to unearth evidence of “the normalization of impeachment” in the post-Clinton, pre-Trump era. The four presidential terms prior to Trump’s ascension saw a total of three impeachment resolutions formally introduced in the House, all against President George W. Bush (all of which died in committee); zero for President Obama. “Throughout Obama’s second term,” Tribe and Matz write, “impeachment was unavoidable everywhere except in the halls of Congress, where no one dared propose it”—in other words, everywhere but where it might matter.
If impeachment was supposed to be indispensable, why have we deployed it so infrequently? One obvious answer is that our Constitution makes it very difficult to remove a president. Conviction in the Senate requires “the Concurrence of two thirds of the Members present.” And most people believe—incorrectly, in my view—that without a Senate conviction, impeachment by the House is an act of futility.
It’s likely that most of the Framers didn’t appreciate the effect of the supermajority requirement, which came late in the Convention and passed without comment, seemingly unnoticed. But the high structural barrier alone can’t explain why presidential impeachments have been so extraordinarily rare.
Our Constitution makes it hard—perhaps too hard—to remove a president. But we’ve made it harder still by erecting barriers to impeachment nowhere to be found in the Constitution. Among those self-imposed restraints are the legal misconceptions mentioned above, such as the notion that impeachment is reserved solely for felonious abuses of official power. But cultural superstitions surrounding the remedy have been at least as significant a disincentive as legal error.
Impeachment talk is tinged with suggestions of blasphemy or violence. The euphemism “I-word” dates back to at least the late-80s “when it was used with reference to Democrats’ reluctance to call for Reagan’s impeachment during the Iran-Contra scandal,” according to the OED’s blog. It’s “a rhetorical device” reflecting the fact that “earnest discussion of the possibility of impeachment is still regarded by many politicians and journalists as a bridge too far,” a taboo that extends “even to broaching the topic of impeachment.” Well before Trump, impeachment had become the constitutional procedure that dare not speak its name.
On the rare occasions that the subject is broached, normally sober and judicious scholars resort to bloody hyperbole. Impeachment is “high-risk major surgery”; or “the political equivalent of capital punishment,” allowing Congress “to decapitate the executive branch in a single act. It’s worse than that, NYU’s Ronald Dworkin insisted in 1998: “the power to impeach a president is a constitutional nuclear weapon.”
Now, as in past impeachment debates, pundits, pols, and professors conjure up specters of wounded democracy and constitutional collapse, describing impeachment as “reversing an election” and “overturning the will of the people.” By “going there,” we risk “opening Pandora’s Box” and unleashing a host of evils, including, quite possibly, civil war. At the very least, Tribe and Matz argue, “there can be little doubt that a successful impeachment campaign would inflict enduring national trauma.” But I, for one, doubt it. Such fears are radically overblown. Impeachment neither vandalizes democracy nor threatens constitutional crisis, nor does our (admittedly limited) experience suggest that it’s especially destabilizing.
Whatever one’s assessment of the current president, the notion that impeachment is a “constitutional nuclear weapon” is unhealthy for our democracy. Over the last century, the American presidency has been transformed from a comparatively modest “chief magistrate” into the “most powerful office in the world.” And, as the power of the office has grown, “Impeachment Anxiety Syndrome” has grown with it, ensuring that the officeholder enjoys greater job protection than virtually any other American.
It’s employment-at-will for most of us, termination for-cause at the commanding heights of the economy. But we’ve somehow managed to convince ourselves that the one job in America where you have to commit a felony to get fired is the one where you actually get nuclear weapons.
That is not how our system is supposed to work, it’s not what our Constitution requires, and it’s not what we should accept for an office as powerful and dangerous as the American presidency.
The Politics of Impeachment
Gene Healy is performing an invaluable service in calling our attention to what he has correctly referred to as the “cultural superstition surrounding the remedy” of impeachment. He notes that I have a different but similar term: “Impeachment Anxiety Syndrome.” Perhaps neither term—not anxiety and not superstition—fully captures what we are getting at: the terror with which the very process of impeachment, even a preliminary inquiry into the grounds for impeachment, is viewed.
I disagree with very little in Gene’s presentation, but I will take this space to say more on basic questions of substance and process. In the first case, I want to return briefly to the issue of what constitutes an impeachable offense. In the second, I will address the specific reservations we hear about the very initiation of an impeachment process. This second set of observations engages with the possible reasons for the level of superstition or anxiety that we see behind this resistance to the constitutional process.
Healy asks the reader to reflect on the peculiar conclusion that “the one job in America where you have to commit a felony to get fired is the one where you actually get nuclear weapons.” And yet we don’t even have an agreement among scholars that any felony is a firing offense. We often hear that impeachment is only appropriate if the president has committed 1) a crime, 2) the crime is serious and 3) it bears in some way directly on the conduct of his office. So the “indispensable remedy” is hardly ready to hand. All sorts of obstacles lie in the path of anyone seeking to raise the question of the president’s commission of impeachable offenses.
So what accounts for this “cultural superstition” or high “anxiety”? We have here fully circular reasoning. On the one hand, impeachment is seen as a necessary check against abuse of power, and so the more powerful the presidency and the greater the risk of abuse, the more indispensable the remedy. And yet, on the other, the power of the presidency is such that many fear hobbling its occupant and, by doing so, catapulting the country into “national nightmare” and “constitutional crisis.” In other words, the more power accrues to the presidency, the more protections we afford it, including this aversion to impeachment. This is not only the wrong constitutional view. It makes no sense.
Most scholars agree that no crime is required as a predicate for impeachment. But some crime-type offense remains for many a crucial consideration. And the catchall is “abuse of power.” This is a legitimate reason to initiate impeachment inquiry, and yet it does not cover all the potential cases of a president unfit to wield and project the authority and power of the office.
Consider the case of a president who is a racist. Assume his associates know that he believes that Americans of color are inferior and ought to be treated as second-class citizens. He expresses these views privately, and within the Oval Office, not so privately. Every now and then, when it suits him for political reasons, he teases these views out in public.
Is this an “abuse of power”? It should not be difficult to appreciate the dangers of entrusting vast power to a president who, we would have reason to fear, would wield it discriminatorily, motivated by racial animus. But the abuse of power is not the sole ground of concern. The disqualification is at bottom one of character and fitness. A racist president cannot represent the nation, and impeachment is an appropriate response to expressed beliefs that are “grossly incompatible with the proper function and purpose of the office.”
Is Impeachment Undemocratic?
In the defense of the restricted view of impeachment, one often hears that this constitutional process is an affront to democratic self-government. Impeachment is a political process, and its outcome, if a House vote to impeach is followed by a Senate vote to convict, is something akin to a coup d’etat.
But, of course, the president facing ouster from office has already handpicked his or her successor. Prior to each major party nominating convention, the prospective nominee and their advisers withdraw behind closed doors for a suspenseful period of time and emerge to announce a choice that the political convention almost invariably affirms. (There been exceptions, like John McCain’s inclination to run with Joe Lieberman, but it is truly an exception when the presidential nominee of one party picks as his running mate a former vice presidential nominee of the other). Those claiming that impeachment reverses the outcome of the previous election tend to overlook this unique feature of presidential succession. The president may go, but the vice president, elected on the same ticket, stays.
Some part of the blame for this culture of superstition and experience of anxiety falls on Congress’s low reputation. It was no help at all that former President Gerald Ford decided to announce, now infamously, that an impeachable offense was whatever the House majority decided at any given time. He was wrong about that. As Phillip Bobbitt has cogently argued, impeachment is a law-type process governed by precedents of procedure and substance.
Of course, Congress can chuck all restraints, and no doubt many worry that it will, especially under intense partisan pressure. But the history of impeachment does not support this view. Congressional Republicans locked in a bitter struggle with President Andrew Johnson over Reconstruction policy resorted to impeachment in fits and starts but, after finally initiating the process, impeached but did not convict. In the 1999 trial of Bill Clinton, the Republicans who lost only one of their members (Arlen Specter) in a vote for conviction knew it was a “free” political vote,” having no effect: with the Democrats united, the Senate was nowhere near the supermajority required to remove the president from office. Public opinion polls reflected strong majorities against conviction, and the Senate Republican leadership agreed to a short trial, went through the motions, and were relieved to have it quickly over with.
At any rate, the fear of possible feckless political behavior does not support the virtual abandonment of a constitutionally “indispensable remedy.” The risk that it will be unused when needed is no less serious than the potential for its abuse.
Another concern, particularly salient in the polarized politics of our time, is that mobilized political majorities will use impeachment to victimize the opposition and leave the public dangerously divided. In other words, an impeached president’s defenders will never be convinced of the merits of the case for impeachment. They might take to the streets, or just lose all confidence in the democratic process. So the public takes the blame: it is thought unable to break free of the grip of partisan affiliations and beliefs and fairly evaluate the case against the president’s continuance in office.
We don’t give the American people enough credit. By the time that Senate opened the impeachment trial of President Bill Clinton, Republicans were frantic to get out of Dodge City because the public had deserted them. They had had an opportunity to make their case, and they didn’t succeed. Americans who were quite unhappy with Bill Clinton’s conduct, and probably more than willing to accept his resignation at the time of the initial revelations of the Lewinsky affair, were unimpressed with the House’s prosecution of the impeachment case. The majorities holding firm for Clinton were significantly larger than what his vote total in his reelection campaign would have implied.
This suggests some caution is warranted in treating the public as inevitably dividing into mindless rampaging herds. We might do better to encourage the Congress to do its constitutional duty and make its case. There is no point in projecting how the public will react to the case when made. Only allowing the process to play out will permit for a definitive public judgment.
Those desperate to avoid engagement with the “I-word” argue that the best way to give the American people their due is to refer presidential misconduct to its judgment at the next regularly scheduled election. We are about to hear arguments of precisely this kind as 2020 approaches and the charge that Donald Trump has committed impeachable offenses is met with this objection: “Let the voters decide.”
Impeachment, however, is a constitutional, not an electoral process, and the confusion of the two will leave the “indispensable remedy” in a shambles. Once again illogic prevails. If, as Gene points out, impeachment is intended to protect the public from harm, then waiting things out until the next election, fingers crossed, is absurd.
Finally, there is a view that the House should not bother with impeachment if the Senate is unlikely to convict with the necessary supermajority. Once again, on this theory, the substantive case is held hostage to calculations about the eventual success of the initiative. In resolving the a question of substance, which is whether the president is safely left in place, the more responsible course—the constitutionally appropriate course—is to stay with the substance.
This is a final irony. Many fear that impeachment is invariably and dangerously political, and yet their own fears arise to a considerable degree on the strength of what are likewise political considerations—what the Senate will do, what the polls show, what the voters will think. It is often for these ultimately political reasons that they take extreme, nervous stands against resort to impeachment. Add to that the belief the president is so powerful that we ought to resist holding him or her to account, and we have the full measure of a wrong-headed picture of the importance and uses of this constitutional process.
Impeachment Is Not Enough
I am extremely grateful for this opportunity to comment on Gene Healy’s excellent essay bewailing what lawyers might call the “desuetude” that has befallen the Impeachment Clause as a truly functioning part of our operating political system. As he notes, part of the reason is the retroactive belief by none other than Ken Starr himself that the impeachment of Bill Clinton might have been ill-advised; perhaps, Starr seems to be suggesting, liberal legal scholar Ronald Dworkin was correct that impeachment should be considered a “constitutional nuclear weapon” to be used only in the most truly dire of circumstances. Yet, just as some conservatives like Starr are reconsidering their role in the Clinton impeachment, at least some liberals are beginning to think they were far too quick to rally behind Clinton and to diminish the importance of his lying and truly recklessly disgraceful behavior. It is tempting, of course, to dismiss both changes of mind as being simply “politically motivated reasoning,” where the “real topic,” as it were, is the advisability of impeaching Donald J. Trump.
“Whatever one’s assessment of the current president,” Healy writes, “the notion that impeachment is a ‘constitutional nuclear weapon’ is unhealthy for our democracy.” I could not agree with him more, particularly given his closing description of the modern American president as occupying an office that is both “powerful and dangerous.” One can argue whether or not the Framers envisioned such an office or, instead, imagined a president who would basically serve as an assiduous clerk “taking care” to enforce laws passed by Congress. Frankly, it doesn’t matter. As historians agree, the “modern” presidency is exactly what Healy says it is.
The only debate would be exactly when that presidency emerged. Some might go all the way back to Washington’s unilateral declaration of neutrality in the war between Great Britain and our notional ally France, or Thomas Jefferson’s decision to violate his own constitutional principles by accepting the almost literally incredible opportunity offered him to purchase not only Louisiana, but also the entire Midwest extending into Montana. Others might wait until Teddy Roosevelt initiated the “bully pulpit” conception of the presidency or Woodrow Wilson was delegated vast “war powers” to conduct the war that would ostensibly end the prospect of future wars (and, in addition, make the world safe for democracy). No doubt Franklin Roosevelt would play an essential role in such arguments. I myself would emphasize Harry Truman, the purportedly modest man from Missouri who not only decided to drop two atomic bombs on Japan but also chose to develop hydrogen bombs and to take the United States into the Korean War without any explicit authorization from Congress. As Thomas Wolfe suggested, one can’t go home again, and it is simply unthinkable that the office of the presidency could ever return to more halcyon conceptions. As Donald Rumsfeld might put it, we must conduct our politics with the presidency we have, not the presidential office we might prefer. Both the “power” and “danger” are inevitably attached to the contemporary office, and we must respond accordingly.
If I have a disagreement with Healy, it is only that he focuses exclusively on reviving the Impeachment Clause as a means of disciplining presidents we truly find dangerous to our political order. Part of his strategy is making entirely cogent arguments about the original conception of the Clause as defining impeachable behavior more broadly than we think is the case today, when the notion of “high crimes and misdemeanors” has often been interpreted in quite narrow fashions. But, of course, there will be competent lawyers who will offer more restricted “original understandings.”
I deeply regret that the Impeachment Clause has become almost entirely the province of lawyers and, therefore, of what we properly label “legalistic” modes of argumentation. For some, this requires careful historical excavation of what Madison and others in 1787 meant by “high crimes and misdemeanors” or, for others, what the “original public meaning” of such terms were at the time. Others are less historically oriented and instead want to examine the precedents, whether emanating from courts or from prior Congresses at the time, say, of the Johnson, Nixon, and Clinton impeachments. There are, of course, other approaches to constitutional interpretation that are available, but most lawyers and laity are uncomfortable if one forthrightly asks a simple question: What approach to the Impeachment Clause would in fact be best for our polity now and in the foreseeable future? That is surely the central focus of Healy’s essay. He is properly concerned that we do not have adequate means of disciplining presidents, including forcing their dismissal from office prior to the conclusion of what the Constitution establishes as a fixed four-year term.
My fear is that we cannot achieve real progress so long as we remain fixated on the Impeachment Clause, even if, like Healy and myself, we would readily interpret in a quite broad fashion. It is not that I truly oppose such efforts at reinterpretation, given the desirability of putting some fear in the hearts of overreaching presidents. But it would, I believe, be far more productive if we would actually consider the possibility that we need more dramatic revision of the Constitution. Decisions that might have made perfect sense in 1787—including a fixed term limited only by the possibility of impeachment—do not serve us well 232 years later.
Alexander Hamilton begin Federalist 1 by saying that American exceptionalism in effect consisted of our collective ability to engage in “reflection and choice” as to how we should govern ourselves. Other essays in The Federalist emphasized the importance of learning from “the lessons of experience” and therefore taking advantage of the opportunity given by Article V of the Constitution to amend the document in order to make it more suitable for an inevitably changing set of circumstances. I fear that we have lost any confidence in our ability to engage in such “reflection and choice.” As someone who has for some years advocated the desirability of calling a new constitutional convention to ask probing questions about what aspects of our political system might need even quite radical changes, I am fully aware that most of my family, friends, and professional colleagues consider any such suggestion to be crazy. The primary reason, I am afraid, is not necessarily that my critics in fact believe the Constitution is nearly perfect as it is; instead, they are paralyzed by the fear of what might happen if “We the People” might really believe that we could exercise our “popular sovereignty” to assess and then perhaps change the Constitution that for many serves the function of a secular holy writ.
In any event, one of the things I would very much want to be discussed at any such convention is the addition of a new provision that would at the very least allow Congress, by a two-thirds vote of the House and Senate meeting together, to pass a vote of “no confidence” in any sitting president that would serve to end his or her term immediately. If the basis of a lack of confidence is the personal character or behavior of the president, then, of course, the vice-president should succeed. If, on the other hand, the basis is a deep fear of the wisdom of the policies identified with the Administration, then instead the caucus of the party to whom the president belongs should be allowed/required to pick a successor, subject to ratification by an absolute majority of both houses of Congress voting as one.
There would be no good reason to rely on vice-presidents to succeed to the Oval Office if in fact one mistrusted their judgment to the same degree as the president’s. If one, for good reason, does not trust Congress to take its responsibilities with adequate seriousness, then I would be fully open to adopting the possibility offered by the Wisconsin and California state constitutions, i.e., a “recall election” upon a sufficient percentage of the electorate signing the requisite petitions endorsing such an election. One can only imagine what our politics would be like right now if Republicans actually had to explain to their constituents exactly why they continued to have confidence in Donald Trump or if we could collect signatures at every street corner for a recall election. Of course, it’s possible that a convention would engage in the most truly fundamental debate: Are we well served in the 21st century by a presidentialist system, which appears to advantage primarily candidates of both parties whose chief skill-set is campaigning and not necessarily actual governance?
Healy notes that many of those who are impeachment-averse fear that the American political system is simply too potentially unstable to be able to handle the forced eviction of an elected president from the White House. But why? Richard Nixon’s unprecedented resignation led to what was in context a brief era of good feelings, at least until Gerald Ford pardoned Nixon. More to the point, parliamentary systems all over the world offer examples of repudiated prime ministers who are forced out of office, and the polity does not quake with instability. Margaret Thatcher, probably the most important peacetime prime minister in 20th century Great Britain, was unceremoniously driven from office. John Major not only succeeded her; to the surprise of many, he led the Tories to victory in the next election. Similarly, whatever one thought of the merits of recalling California governor Grey Davis from office, it is scarcely the case that one would describe the consequences as chaotic. Arnold Schwartzenegger won election and proved himself a quite popular leader.
If one is fearful, that perhaps is evidence itself of the grotesque over-emphasis we now place on the office of the presidency. The “imperial presidency” is as much a function of popular psychology and projection of often unwise and unmerited hopes onto our own version of a “Fearless Leader” as it is the product of the actual conduct of given presidents. We should ask ourselves why great cities are almost literally shut down when they are visited by the president and his ever-growing security entourage. We should question the frequent playing of the semi-fascistic “Hail to the Chief,” itself linked to the development of the national security state following World War II. We would be a far healthier polity if we treated presidents as Ross Perot described them in 1992—our “employees” to be retained or fired to the extent that we think they’re serving us well. One can only hope that Healy’s cautionary essay will get the wide readership and attention that it deserves.
Impeachment: Practical Considerations Support Caution
Let’s start with something about which Gene Healy and I agree. Reluctance by Republican and Democratic leaders alike to have an earnest discussion about impeachment is unwarranted. The aversion to even utter the word, often employing the euphemism “the I-word,” is ridiculous. The Republic will survive a grown-up conversation of a concept integral to the Constitution. I’d submit all would actually be better off for talking about impeachment more often.
Discussion is one thing; an actual impeachment is another matter. And it is here that Healy and I (and the other commenters) diverge. In fact, I think a conversation about impeachment will not, as Healy suggests, make impeachment a more viable remedy. Examining the rationale for the impeachment clause, the history of its application, and the potential consequences of its deployment will instead reveal why no President has ever been removed from office through impeachment and there have been only three occasions in which the process has been seriously invoked. Impeachment and removal of a duly elected president is so consequential, disruptive, and dramatic, that it should be discussed, evaluated, and understood before it is realistically considered. This Cato Unbound project and Gene Healy’s lead essay, as well as the responses from Bob Bauer and Sanford Levinson, do a significant service in furthering an open discussion of this important and perhaps timely issue.
As Healy notes, America doesn’t have much practical experience with presidential impeachment. Nobody alive today remembers the impeachment and acquittal of President Andrew Johnson. The initial steps taken by the House Judiciary Committee toward the potential impeachment of President Nixon are a distant memory, even for those of us old enough to have lived through it. The Johnson and Nixon precedents are generally, therefore, processed as historical examples, not lived experiences. The Clinton impeachment is for many Americans more instrumental in informing their practical view of the impeachment process. And it is generally not considered a process to be wished for again. Even Ken Starr, the Clinton impeachment’s most notable and aggressive advocate, has expressed regrets. No wonder. The president emerged personally and politically wounded, but even more popular than when he entered the process. On the other hand, Congress suffered real damage: the Speaker of the House was ousted, his intended successor resigned when cast as a hypocrite, and the Chairman of the Judiciary Committee was outed for his own moral failings. History has generally characterized the Clinton impeachment prosecution as politically motivated and constitutionally unwarranted.
So for all of the academic rationales for adopting a more relaxed view of impeachment, we should not ignore the many practical reasons to be wary. This is the perspective I hope to add to this conversation. In addition to teaching Impeachment Law at Tulane Law School, I am a practicing impeachment lawyer, having served as lead defense counsel to most of the U.S. governors who have faced impeachment proceedings since the Clinton experience nearly two decades ago.
My academic work and practical experience have identified several reasons why we should continue to be cautious about impeachment. Here are a few:
- Impeachment is immensely disruptive to the normal function of governing. As Healy points out, the language of violence permeates impeachment discussions. It has been called a “constitutional nuclear weapon” and a “political death sentence.” Noted historian James Bryce wrote that impeachment “is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at.” The strength of this language reflects the virulence of emotions held by those with stakes in the process. Impeachment threatens to take from a President the office, reputation, and legacy for which he has fought, risked and sacrificed. It imperils political alliances. It threatens to discard the votes of millions of people who sacrificed their time to cast ballots. It undoes a result in which campaign donors invested funds. On the other side are opponents motivated by both virtue and political opportunism, but almost certainly possessing equal fervor. In other countries those in power are overthrown by violence; it is not surprising that language of force populates discussions of potential power changes outside the normal democratic process in the U.S.
Given the stakes, it is simply not realistic to expect a White House facing an existential threat to not be distracted from matters of policy. The same can be said for a Congress undertaking an impeachment process. And certainly, the narrow attention span of the media and the public will be occupied by the greatest political show on earth.
Impeachment interferes with the normal balance of powers. In accomplishing their respective roles, Congress and the President engage in a constitutionally orchestrated dance of power and prerogatives. This is upended in an impeachment, where Congress can dominate the Executive Branch. This reality has long been recognized by scholars. Raoul Berger called impeachment an “exception to the separation of powers.” Harvard Professor Laurence Tribe wrote that when Congress considers impeachment, it puts one “branch in a position to sit in judgment on another, empowering the Congress essentially to decapitate the executive branch in a single stroke….” Impeachment, Tribe noted, “involves the uniquely solemn act of having one branch essentially overthrow another.” The impeachment scholar Charles Black identified the imminence of impeachment proceedings as the “most critical point possible in the relations” between the branches of government. In an impeachment, the balance between the branches of government gives way to a wrestling match for control.
Impeachment is antithetical to the American democratic process, risking political reprisal from those whose votes would be undone. In our Constitutional system the president is chosen by citizens who sacrifice their valuable time to evaluate candidates and cast ballots. Removal by impeachment nullifies their votes and risks political reprisal from those who participated in elections and know that the American constitution does not countenance legislative votes of no confidence. Black correctly noted that the “frustration of popular will” should not occur except when necessary to remedy the most egregious misconduct that “corrupt[s] or subvert[s] the political and governmental process”; otherwise, impeachment would itself undermine the political process and the chief executive’s accountability to the electorate whose interests he or she is charged with serving. Politicians pushing impeachment may be met with opprobrium from those whose votes are discarded.
There are usually other, less violent remedies than impeachment. Before resorting to impeachment, Congress will continue to explore less disruptive and risky remedies. It can use its budget and oversight powers to rein in presidential overreach. The courts can check presidential abuses of power on a case-by-case basis. Press coverage of scandals can imperil a president’s reelection prospects and the electoral fortunes of his party members, diminishing his political power. A president may face civil liability for injuries done to others and possible criminal prosecution (at least after leaving office). Congress might also be able to resort to censure. Before embarking on an impeachment effort, Congress will (and should) generally evaluate these less drastic options.
Impeachment creates uncertainty, which could affect American foreign policy and the financial markets. Foreign leaders may not be sanguine that a particular president will serve out his or her term, imperiling negotiations with an administration. Impeachment could also threaten the stability upon which financial markets depend.
These are but some of the practical consequences of traveling down the road to impeachment. For these reasons, and the theoretical underpinnings of our constitutional system, impeachment must, in the words of Stanford Professor Jack Rakove, “remain a remedy to be deployed only in extremely serious and unequivocal cases, where [there is] a high degree of confidence that the conduct in question falls squarely and unambiguously within the parameters of a persuasive definition, and where the insult to the constitutional system is grave indeed.”
High Anxiety on Impeachment: We Don’t Have to Give In
Impeachment talk, as Alexander Hamilton warned us, tends to stoke “animosity” and “agitate the passions.” So let me start by thanking our contributors for their insightful and gracious replies to my case for using the remedy more frequently. Of the four of us, Ross Garber is the most skeptical about “adopting a more relaxed view of impeachment,” and he raises some important points. Here I’ll focus mainly on his essay, responding to his cautions in the order he raises them. (Hat tip to Bob Bauer, whose allusion to Mel Brooks inspired the title for this reply.)
Impeachment Is Disruptive
There’s good reason violent metaphors abound in impeachment discussions, Garber argues: impeachment is “immensely disruptive to the normal function of governing.” Still, recent history suggests that what disruption we suffer is entirely manageable. During the Clinton impeachment, as Judge Richard A. Posner observed in his 1999 book on the subject, “government ticked along in its usual way through thirteen months of so-called crisis.” Posner speculates, perhaps unfairly, that “some Senators may have been concerned about the length of the trial because they were afraid that it would go on for a long time and they would not be missed.”
Garber is surely correct that a Congress engaged in a serious impeachment effort and a White House that goes to the mat in response will necessarily “be distracted from matters of policy.” But the key question is, compared to what? “One should really speak of incremental paralysis,” Posner points out. The alternative to an impeachment inquiry is never going to be federal business-as-usual.
We may, as in the Clinton case, have a lame-duck, second term president. Almost certainly, we’ll have divided government. And if we’ve reached the point where impeachment is a live possibility, the president will already find himself looking down the barrel of a “subpoena cannon” with a special prosecutor at his heels. Vigorous oversight—or, if one prefers Donald Trump’s all-caps coinage, “PRESIDENTIAL HARASSMENT”—is a given. The question is whether some measure of additional disruption over the baseline is a price worth paying in order to bring to a head and finally resolve serious questions about presidential malfeasance.
Impeachment Threatens the “Normal Balance of Powers”
“In an impeachment,” Garber writes, “the balance between the branches of government gives way to a wrestling match for control.” That, it seems to me, is as it should be. Sometimes the existing balance is, in the current parlance, “not normal.” The Johnson and Nixon cases involved efforts to right the balance between the executive and the “First Branch.”
Sometimes that struggle for control has led to periods of congressional dominance—or at least resurgence, as in the Nixon case. But, for good or for ill, it will not necessarily lead to any lasting change in the relative powers of Congress and the executive.
In a rather breathless letter delivered to Congress as the Clinton impeachment debate began, over 430 law professors warned that impeachment on the grounds outlined in the Starr referral would “make future presidents too beholden to the Congress,” and “dangerously weaken the office of the presidency for the foreseeable future.” In the end, though, the attempted ouster of Clinton didn’t weaken the presidency in any material way. If anything, the episode somewhat strengthened the office by forging a consensus for letting the independent counsel law lapse.
Impeachment Is “Antithetical to the American Democratic Process”
Removal via impeachment “nullifies” and “discards the votes of millions of people,” Garber cautions. He’s hardly alone in that view. Commentators with no special affection for the current president routinely describe impeachment as a process that “contravene[s] the will of the people” and “overturn[s] the results of an election.”
Such characterizations might have been justified in earlier periods of our constitutional history. Before the 12th Amendment, removing the president would replace him with his principal electoral opponent; before the 25th Amendment, the Constitution lacked a ready means for filling midterm vacancies in the vice-presidency. The want of such a mechanism meant that removal of Andrew Johnson would have elevated Senate president pro tem Benjamin Wade, a Radical Republican with sharply different policies. Its availability after 1967 meant that Nixon was replaced by fellow Republican Gerald Ford instead of Democratic Speaker of the House Carl Albert.
Today it makes little sense to describe impeachment in terms of discarding votes and reversing elections. As Bob Bauer points out, “the president facing ouster from office has already handpicked his or her successor…. The president may go, but the vice president, elected on the same ticket, stays.”
It’s true that, as Garber suggests, impeachments are divisive and may lead to “opprobrium” or “political reprisal.” Here again, our history gives us reason to doubt that any resulting disunity would catastrophic. The 1970s saw a level of political violence we’d find stunning today. But even with that backdrop, the Nixon impeachment inquiry proceeded peacefully. As Sanford Levinson points out, Nixon’s resignation even “led to what was in context a brief era of good feelings, at least until Gerald Ford pardoned Nixon.”
“Less Violent Remedies” Are Available
Again, I wouldn’t describe a remedy that puts a misbehaving officeholder out of a job in terms of violence. But I agree with Garber that “less drastic options” are usually preferable to impeachment. That concession comes with a couple of caveats, however.
First, I’m skeptical about the utility of censure as an alternative to impeachment. The few successful censure resolutions against sitting presidents have mostly faded into obscurity. While the tactic is perfectly constitutional, I fear it would have all the force of Congress declaring it “National Nurses’ Week.”
Second, the alternative remedies with real bite will themselves exact a toll in terms of disruption and distraction. That’s a price usually well worth paying but, as noted above, the choice isn’t between impeachment and normalcy.
Impeachment Could Damage American Prosperity
Would impeachment-induced uncertainty “threaten the stability on which financial markets depend,” as Garber suggests? If I had special insight into the animal spirits that drive stock market rallies, I’d be richer and better dressed. But it seems to me that our recent experience provides little cause for alarm.
The Watergate scandal unfolded during a significant stock market decline, but Nixon’s woes were hardly the slump’s only cause. The 1973 Arab oil embargo, which started the same month as the Saturday Night Massacre, was a major factor. The market rallied in the months after Nixon’s resignation. In the late ‘90s, investors “shrugged off” the Clinton impeachment, which coincided with one of the biggest bull markets in history.
Past performance is no guarantee of future results, but there seems to be little reason to fear the nightmare scenario offered by President Trump on Fox & Friends last summer, that if he’s impeached, “the market would crash [and] everybody would be very poor.”
Impeachment Could Undermine American Foreign Policy
I find greater cause for concern when it comes to impeachment’s potential effects on international affairs. Garber suggests that a resort to the remedy might weaken the president’s negotiating position abroad. Perhaps, but I worry far more about an embattled president’s temptation to use military force in an effort to change the subject—the tactic dubbed “Wag the Dog” in the Clinton era.
We may weigh the dangers of impeachment differently, but perhaps one thing we can all agree on is that it’s hardly an ideal remedy for a misbehaving and/or unfit chief executive. It’s every bit as complex, unwieldy, and awkward as Lord Bryce’s (violent!) “hundred-ton gun” metaphor suggests. Could we have designed a better one? Could we still? Those are the questions Sanford Levinson raises in his provocative essay, which I hope to turn to soon.
Our Overprotected Chief Executive
In my last entry, I ended by agreeing with Sanford Levinson that impeachment is far from an ideal remedy for a misbehaving or incompetent chief executive. I also agree that other constitutional systems manage the job much better.
This may not be the best week to sing the praises of parliamentary democracy, but parliamentary systems have this going for them at least: they make it far easier to “throw the bum out” when all else fails. Prime ministers can be brought down at any time by losing a vote of confidence in the House of Commons, and, as Levinson points out, they can even be replaced by their own party with no great disruption.
Some years after Watergate, Senator J. William Fulbright observed that a “great weakness of our system is how hard it is to get rid of an inadequate leader.” After the Suez Crisis in 1956, “Anthony Eden was out in two weeks,” Fulbright wrote, “in a parliamentary system, Nixon would have been forced to resign early on.” In the Clinton case, we might have been spared our yearlong constitutional conniption over Bill Clinton’s mental state, the multiple connotations of the word “is,” and the precise placement of the president’s hands during various extracurricular encounters. So maybe we have something to learn from our cousins across the pond.
The “No Confidence” Amendment(s)
Levinson suggests as much with his proposal for a “no confidence” amendment to the U.S. Constitution, allowing Congress “by a two-thirds vote of the House and Senate meeting together,” to end a president’s term immediately.
In one version of Levinson’s NCA, the vice president replaces the defenestrated president, as he would in a successful impeachment. But as Levinson notes in Our Undemocratic Constitution, that “might be cold comfort” in a situation where the policies of the administration as a whole are what inspired the no confidence vote; “[n]o critic of George W. Bush would be assuaged if Dick Cheney became president.” Thus, an alternative version of the NCA would leave nomination of a successor to the outgoing president’s copartisans in Congress, “subject to ratification by an absolute majority of both houses of Congress voting as one.”
In the wake of Watergate, Rep. Henry Reuss (D-WI) offered still another version of the NCA. Reuss’s proposed constitutional amendment was debated at length in the George Washington Law Review, if not in Congress. As Reuss explained: “the motion would require a 60 percent majority in both the House and the Senate. Upon passage, the President would continue in office, with a national election for President and Vice President, and for the entire Congress, held within 90 to 110 days.”
Far be it from me, as a libertarian, to object to proposals for radical reform on the grounds of practicality. Even if such revisions are unlikely, exploring their merits can help clarify the defects of current arrangements. Still, I wonder whether an NCA in any of these forms would enable presidential removal for anything short of Nixon-level malfeasance. Reuss’s requirement that the entire legislative branch stand for election is a near-prohibitive disincentive.
Levinson’s NCA lacks that defect, but the 2/3s requirement remains a substantial hurdle. If I haven’t botched my back-of-the-envelope math, in our current partisan alignment, it would require 73 members to cross the aisle—something that’s rare enough when the stakes are far lower. Perhaps Reuss’s lower supermajority requirement, combined with Levinson’s simpler procedures for presidential succession, would strike a better balance.
The Presidential Recall Amendment
Levinson finds inspiration closer to home with his proposal for a presidential recall amendment. “If one, for good reason, does not trust Congress to take its responsibilities with adequate seriousness,” he writes, “then I would be fully open to adopting the possibility offered by the Wisconsin and California state constitutions, i.e., a ‘recall election.’”
Nineteen states allow midterm recall of their governors. Eight of those require the petitioner to identify specific grounds of malfeasance; in the others, any registered voter can start a recall drive for any reason. In all 19, a recall vote is held when its supporters collect the requisite number of signatures. A federal recall amendment proposed by Sen. Robert Hendrickson (R-NJ) in 1951 proposed a different trigger—demands by 2/3s of state legislatures.
Here again, however, it’s not clear to me that a national recall would significantly ease the path to presidential removal. Recall provisions date to the Progressive Era; Oregon, California, and Arizona embraced the mechanism more than a century ago. But in all that time, we’ve seen only three gubernatorial recall attempts make it to the voting stage, and only two successfully removed a sitting governor (North Dakota’s Lynn Frazier in 1921 and California’s Gray Davis in 2003).
Setting the Bar Too High
In fact, judging by rarity of use, no method of executive removal has proven particularly successful in the United States. All 50 states provide for impeachment of state governors, often on grounds much broader than the current understanding of “high Crimes and Misdemeanors” allows. And yet gubernatorial impeachments are at least as rare as presidential ones.
In our history, only eight state governors have been impeached and removed from office. That figure leaves out cases, like that of Missouri’s Eric Greitens in 2018, where the threat of impeachment has driven governors from office. But it’s still a pretty meager tally if we assume that the ordinary distribution of human folly and misbehavior obtains among state political leaders.
It’s unlikely that a “cult of the governor” inhibits the use of the remedy at the state level. And while the stakes are smaller at the state level, it’s not clear which way that cuts. That governors are less important than presidents might make removal less necessary, but it ought also to make removal less disruptive. My guess is that structural factors explain a lot: state constitutions probably set the bar too high for both impeachment convictions and ballot recalls.
It seems to me the Framers, too, set the bar for impeachment convictions unreasonably high in 1787, not realizing that would make the “indispensable” remedy all but unworkable. I’d likely support either of Levinson’s amendments, or a “simpler” fix that lowered the supermajority requirement for conviction to 60 votes in the Senate. Like him, I wish more fundamental changes were possible—at least in this area. But for the foreseeable future, I fear we’re stuck with what the Framers left us: an elected pseudo-monarch, all but impossible to dethrone between four-year terms.