To End a Presidency
Page 4
Let’s start with some wisdom from Spider-Man creators Stan Lee and Steve Ditko: “With great power there must also come—great responsibility.”37 That was true for the young superhero Peter Parker, and it’s true for the president of the United States. Yet this principle is easier stated than applied. Presidents must quickly judge the best course in extraordinary circumstances and with limited information. They must consider the whole country—often the whole world—all at once and make decisions that shape the path of human history. In perilous times, their action (or inaction) can define how millions live and millions die.
Responding to this heavy burden, nearly every president has used power in ways denounced at the time as tyrannical—sometimes for good reason, sometimes not. George Washington ignited a national firestorm when he signed a deeply unpopular treaty with Britain. Thomas Jefferson approved the Louisiana Purchase in open defiance of his views of the Constitution. Abraham Lincoln suspended key civil liberties, including free speech and habeas corpus, during the Civil War. Andrew Johnson pardoned former Confederates who had fought against the Union. Woodrow Wilson jailed pacifists who opposed entry into World War I. The list goes on: Franklin D. Roosevelt approved the internment of innocent Japanese American citizens. Harry Truman unilaterally ordered racial integration of the armed services. Dwight Eisenhower deployed troops on his own authority to keep peace in Little Rock, Arkansas. Many important developments in American history involved uses of presidential authority that sparked intense debate.
It’s also safe to say that nearly every president has used power in illegal ways. At one point or another, presidents inevitably support or approve unlawful exercises of federal authority. This is so common as to be unremarkable. The Supreme Court rules against the executive branch on a regular basis. Usually it does so in minor cases arising from criminal, immigration, or regulatory disputes, but occasionally it strikes down major presidential programs. And if we look beyond issues subject to judicial review, most presidents have made military, national security, or foreign affairs judgments that drift past the letter of the law. Although some of these decisions caused a public outcry, many of them have been accepted or even celebrated. Illegality should be rare in the upper echelons of the executive branch, but it can never be avoided completely.
Since the mid-1970s, disputes over presidential power have only become more common. Responding to partisan breakdowns and congressional paralysis, presidents from both parties have made increasingly aggressive use of their authority. Today, almost no issue of national significance remains untouched by the chief executive and his vast bureaucracy. Under crushing political pressure, presidents have laid claim to new and expanded powers—and have also used existing powers in ways that strike many as offensive or unnerving. As a result of these developments, accusations of executive tyranny and lawlessness are now standard fare in American political discourse. The public has been immersed for decades in unrelenting, outraged, and often hyperbolic claims that the president is a dictator who will destroy our freedom.
This poses a challenge for clear thinking about impeachment. On the one hand, all presidents act in ways that trigger alarm bells. And those alarms are important. When we sense abuse of power in the White House, it’s our duty as a free people to identify, resist, and remedy the breach. On the other hand, it’s essential to maintain a sense of proportion. The vast majority of presidential abuses are properly addressed through normal legal and political checks. Despite the heated rhetoric that now engulfs society, not every scandal requires torches and pitchforks.
The Impeachment Clause thus expects that we will recognize shades of gray in concerns about the presidency. Most of the time this is easy. But in the fog of battle—and when crisis looms—we run the risk of allowing an all-consuming grayness to obscure our moral vision. It’s in those tense circumstances that deciding whether to impeach is most difficult.
Of course, not every democracy makes this demand of its citizens. In countries with parliamentary systems, there’s no need for legislators to establish whether the leader has become an existential threat before removing him from office. Nor is it necessary to hold a trial and convict him of anything. Rather, when a legislature loses faith in the prime minister, it can hold a vote of no confidence and thereby express its determination that he is unfit to remain in office. When that occurs, the prime minister resigns and a new election usually occurs in short order. A parliamentary motion of no confidence may be approved for any reason, ranging from proof of criminal acts to a simple conclusion that the prime minister’s leadership isn’t right for the nation.
Whatever the virtues of parliamentary democracy, however, it is not our system of government. Indeed, it’s become a cliché in scholarly circles to distinguish the American impeachment power from parliamentary no-confidence votes—and to suggest that the Framers had this very distinction in mind. Strictly speaking, that isn’t true: in 1789, there weren’t yet full-fledged parliamentary systems for the Framers to reject. But the comparison is helpful as a guide to how impeachment shouldn’t be used.
Unlike parliamentary systems, ours doesn’t remove leaders whenever a majority of the legislature loses faith in them. That practice would be squarely at odds with the basic framework of the Constitution. When a president is elected, the nation is entitled to expect that he will serve a full four-year term—barring proof of incapacity or dastardly conduct that reveals him as a menace to the political order. American democracy deals with unpopular or unwise presidents by checking them, balancing them, and running out the clock on their four-year term. In the event that an awful president is somehow reelected, the Twenty-Second Amendment imposes term limits and thereby forces turnover. (This amendment was ratified in 1951 as a response to FDR, who breached a precedent first set by George Washington when he served in office for more than two consecutive terms.)
Accordingly, even when many Americans view a presidency as catastrophic, impeachment should not be pursued solely on the basis of strong policy differences or deep personal revulsion. Indeed, only the most cynical and faithless observer, wholly unconcerned with core premises of our constitutional plan, would treat impeachment as little more than partisan warfare by other means. Impeachment is not an extension of ordinary political debate; rather, it is reserved for conduct that threatens the very terrain on which such debates occur. Historically, attempts to use the impeachment power in ways that violate this principle have failed—and have been roundly condemned by later generations.
Consider, for example, the abortive effort to impeach President John Tyler in 1842. One year earlier, when President William Henry Harrison died a mere month after inauguration, Tyler became the first vice president to ascend to the presidency. Harrison and Tyler had run on the Whig ticket, but Tyler wasn’t a true Whig. In fact, he disagreed with major parts of their banking, tariff, and infrastructure programs. In the 1840s, that was a very big deal. Political warfare soon erupted between Tyler and the Whig-controlled Congress. Wielding his veto pen with abandon, Tyler stymied major bills at every turn. Finally, congressional Whigs decided to rush the gate. Their leader, Henry Clay, told his allies “the more vetoes the better,” since “the inevitable tendency of events is toward impeachment.”38 By August 1842, all but one member of Tyler’s cabinet had resigned in protest. Worse, a House committee led by John Quincy Adams had issued a report suggesting impeachment for supposed abuses of the veto power.
Tyler was stunned: “The high crime of… daring to have an opinion of my own, Congress to the contrary notwithstanding, I plead guilty also to that, and if these be impeachable matters, why then I ought to be impeached.”39 Ultimately, though, Tyler was saved by a political tidal wave. In late 1842, Democrats swept the midterm congressional elections. When the lame-duck Whig leadership later forced a vote on whether to open an impeachment inquiry, their proposal went down in flames (127 to 83). Tyler remained in office and served out his term, though with few achievements and no base of political support.
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This is a prime example of how impeachment should not be used. The impeachment power is not a tool for Congress to eject a president solely because of disagreement with his policies. It’s to the credit of the lame-duck House majority that it defeated this misguided, partisan effort to end Tyler’s presidency. The right way for Congress to handle Tyler was to override his vetoes, block his nominations, and otherwise invoke the full panoply of ordinary legislative powers. And that’s exactly what happened in Tyler’s final years. As Professor Gerhardt reports, in that period, “the Senate blocked a majority of his nominations (including four cabinet and two minister nominations), and the Senate rejected eight of his nine Supreme Court nominations—the largest number of unsuccessful Supreme Court nominations ever made by a single president.”40
Unfortunately, lessons of history often pass unlearned. Just over 156 years after Tyler’s struggle, the House approved articles of impeachment against President Bill Clinton. Almost entirely along partisan lines, the House accused Clinton of perjuring himself and obstructing justice during an investigation led by Independent Counsel Kenneth Starr. That investigation hadn’t uncovered any abuses of executive power. Rather, it had been launched by evidence of questionable land deals and had quickly sidetracked into a merciless examination of Clinton’s extramarital affairs.
There’s no doubt that perjury and obstruction can be removable offenses in certain circumstances. But the case for impeaching Clinton was a weak one, for four reasons. First, although Clinton grossly and unforgivably used his position to seduce an intern, he did not abuse the formal powers of his office while doing so. Second, while Clinton’s conduct was faithless to his marriage and to the court in which he testified, it hardly broke faith with the nation as a whole or foreshadowed grave peril if he remained in office. Third, there was no sign that Clinton had so lost the confidence of the citizenry that he could not govern effectively until the end of his four-year term. Finally, ordinary checks and balances seemed fully capable of addressing any further objections to how Clinton conducted himself while in office.
Given these substantial vulnerabilities in the articles of impeachment against Clinton, most Americans correctly perceived that House Republicans sought his removal on the basis of political (and personal) animus. Although Clinton’s acts were contemptible, they did not provide compelling grounds for impeachment and conviction. Here, as in Tyler’s case, impeachment was misused by partisans opposed to the president but unable to identify a great offense against the nation. This decision exemplifies bad judgment in the realm of impeachment.
If these cases suggest ways in which the impeachment power shouldn’t be used, that leaves the question: When should it be invoked?
To many, Watergate is the classic example—so much so that we now append -gate to our most unsavory scandals. The story began on June 17, 1972, when a group of burglars was arrested at the Democratic National Committee office, then located at the Watergate complex in Washington, DC. It soon became clear that these burglars were somehow connected to Richard Nixon’s reelection campaign. Over the following years, as journalists and prosecutors hustled around the capital, irrefutable evidence emerged of shocking conduct by Nixon and his senior staff. Their misconduct included surveillance and sabotage of political opponents, illegal campaign financing, and an elaborate cover-up led by Nixon himself. Revelation of this jaw-dropping criminal conspiracy made Nixon’s continuation in office unthinkable. The House Judiciary Committee prepared numerous articles of impeachment, but Nixon ultimately resigned before they could be considered by the full House.
Once the key facts came to light, Watergate was an easy case on the merits. Our constitutional system could not abide a president who used executive power to corrupt the democratic process, enrich his political allies, sabotage his political enemies, commit outrageous felonies, and cover up his own wrongdoing.
We must be careful, though, not to treat Watergate as an exclusive model of when to impeach. Presidential abuses come in many shapes and sizes. Although the events constituting Watergate justified removal, so could many other terrible but very different courses of conduct. As the Framers knew, democracy can fall to charismatic demagogues, would-be monarchs, self-interested kleptocrats, sophisticated criminals, and high-functioning morons. Because threats from the presidency can be so diverse, our vision of the impeachment power must be equally capacious.
That vision must also account for the persistence throughout US history of deep disagreements over constitutional meaning. As we’ve noted, all presidents use power in new, questionable, and possibly threatening ways. Often those invocations of executive power trigger robust dissent. But as urgent as they may feel in the moment, few such disagreements truly strain the constitutional system’s legitimacy—or its viability as a means of keeping political clashes from ripping the nation apart. By and large, we have tacitly agreed to live in a state of perpetual unsettlement regarding the outermost boundaries of many executive powers. Most limits on acceptable presidential conduct are thus defined by evolving norms and culture, not law. These fragile restraints are at least as important for American democracy as the formal rules hardwired into the Constitution. And they usually function well enough for government work.
At times, though, a president might engage in a pattern of conduct that shatters norms and formal constraints accepted by most of us as vital limits on the office. When that happens—and when less extreme measures will not suffice—we must consider taking drastic measures to eject the renegade president.
Simply put, impeachment is our system’s last resort for avoiding genuine catastrophe at the hands of the president. This power is designed for moments when the nation faces clear peril and the constitutional scheme offers no other plausible exit. Impeachment should occur when a president’s prior misdeeds are so awful in their own right, and so disturbing a signal of future conduct, that allowing the president to remain in office poses a clear danger of grave harm to the constitutional order. When circumstances like these arise, failing to impeach can pose a threat even greater than the inherent risks of impeachment. And that decision is left, in the first instance, to the House of Representatives, acting for the nation as a whole.
This may all sound a bit vague. Fair enough. Impeachment requires good judgment amid uncertainty, not a preprinted checklist of relevant considerations. In the coming chapters, we will explore the contours of that judgment and identify general principles that should guide decisions to end a presidency.
Franklin saw impeachment as a decent substitute for assassination. In truth, it’s so much more.
Assassins strike alone in the shadows, moved by motives high and low to end a ruler’s life. They can speak for everyone or no one, for a traitorous cabal or a silent majority. They land a single blow and the world is instantly, unexpectedly transformed. They have only one tool—death—and they wield it at risk of their own life. Even the most celebrated assassination in world history—that of Julius Caesar—was so morally fraught that to this day, we contest whether Brutus was “an honorable man.”41
Impeachment shouldn’t be understood as merely a cleaner and more orderly form of political assassination. Rather, it’s a democratic process by which the American people, speaking through Congress, decide that for the constitutional system to live, a presidency must die. This is a great power, and a terrible one. But it’s a power that befits any nation in which the people are truly sovereign. And it’s a power that might someday save us all.
2
IMPEACHABLE OFFENSES
Richard Nixon hated the Warren Court. He hated its protection of criminal defendants, its sympathy for civil rights, and its muscular vision of judicial power. Most of all, he hated Justice William O. Douglas, the brilliant and erratic arch-liberal appointed decades earlier by Franklin D. Roosevelt. In 1969, Nixon unleashed the full power of his office to crush Douglas. Aided and abetted by FBI director J. Edgar Hoover, the president’s minions sowed rumors of corruption and impropri
ety. But if they thought the justice would cave under pressure, they were badly mistaken. When Attorney General John Mitchell phoned Douglas to informally accuse him of wrongdoing, the wily and combative Westerner replied, “Well, Mr. Attorney General, saddle up your horses.”1
Mitchell’s agents ultimately fell far short of proving serious misconduct. The best they could muster was a few sketchy deals and some scandalous gossip. Nonetheless, on April 15, 1970, Nixon’s closest ally in the House called for Douglas’s impeachment. Ticking off a list of half-baked claims, Representative Gerald Ford emphasized that his colleagues had the raw power to impeach Douglas for any reason. “An impeachable offense,” he insisted, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.”2 Conviction by the Senate, he added, depended only on “whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” In Ford’s telling, there were “few fixed principles” to restrain Congress from giving an expansive interpretation to the phrase “high Crimes and Misdemeanors.”3
Within a year, the campaign to impeach Douglas died a well-deserved death. But Ford’s cynical view of impeachment lives on. Despite extensive criticism, some politicians still find it irresistible. In September 2017, for instance, Representative Maxine Waters echoed Ford while advocating the impeachment of Donald Trump: “Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.”4
In a miserly sense—one that treats principle as mere window dressing on real politics—Ford wasn’t wrong. The Supreme Court does not review impeachment decisions. Indeed, when it was asked by an impeached federal judge to second-guess the Senate’s trial procedures, the Court dismissed his case as presenting a “political question” reserved only to the Senate.5 Because Congress enjoys the final word on matters of impeachment, it has the raw power to remove officials for whatever arbitrary reasons strike its fancy.