To End a Presidency

by Laurence Tribe

  Similar logic applies to pardons. While the president has an absolute power to pardon, Congress has an absolute power to impeach the president for abusive or corrupt exercises of the pardon power. In our view, Trump might have crossed that line on August 25, 2017, when he pardoned Joe Arpaio (the former sheriff of Maricopa County, Arizona). In July 2017, Judge Susan Bolton of the U.S. District Court for the District of Arizona had found Arpaio guilty of criminal contempt of court. She concluded that Arpaio had willfully and repeatedly violated a federal judicial order requiring him to respect the rights of undocumented migrants. Although Judge Bolton didn’t mention this fact in her order, it was widely understood that Arpaio had perpetrated a campaign of terror and atrocities against vulnerable Hispanics within his jurisdiction. Against that background, Trump’s decision to pardon Arpaio was widely seen as a presidential endorsement of violent racism.

  There are two reasons this pardon may qualify as an impeachable offense. First, it amounted to a frontal assault on the judiciary’s ability to enforce the Constitution. Here we agree with Professor Noah Feldman: “When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.”45 By pardoning Arpaio, Trump signaled that thugs who brutalize minorities and break the law may be shielded from justice. He also undermined the judiciary as a guardian of the rule of law. Using the pardon power this way thus involved a gross abuse of presidential authority. If Trump were to issue a series of similar pardons, that course of conduct would surely constitute a removable offense.

  But the Arpaio pardon may also have qualified as impeachable for a very different reason. Trump made this decision amid widespread concern that he would try to stymie Special Counsel Robert Mueller. As lawyer Bill Yeomans has remarked, the Arpaio proclamation might have been meant as a “warning pardon that announced the weaponization of the pardon power.”46 It would be extremely troubling if Trump’s motive in pardoning Arpaio was to dangle a get-out-of-jail-free card in front of Michael Flynn, Paul Manafort, Jared Kushner, or anyone else who might testify against him. Using the pardon power as part of a plan to prevent witnesses from testifying, or to discourage them from telling the truth, might well be impeachable. While we do not yet know enough about Trump’s motives to make any such assessment, it is a question that Congress—and Mueller—should investigate.

  Of course, Russia-related misconduct does not exhaust the long list of Trump’s alleged “high Crimes and Misdemeanors.” The very first resolution calling for his impeachment instead targeted Trump’s support for “white supremacy, bigotry, racism, anti-Semitism, white nationalism, [and] neo-Nazism.” It also sought Trump’s removal for “inciting hate and hostility” and “sowing discord among the people of the United States, on the basis of race, national origin, religion, gender, [and] sexual orientation.” The resolution supported these claims with detailed references to Trump’s hateful and offensive remarks since taking office. On December 6, 2017, however, the House of Representatives rejected this resolution by a vote of 364–58.47

  We anticipate that future impeachment resolutions will include similar allegations. They may also note that Trump frequently uses his bully pulpit to issue reckless threats against well-armed adversaries, and to make disturbing and undemocratic statements. For example, he has described the news media as “the enemy of the American people”; called upon employers to fire employees for their political speech; threatened to punish businesses that don’t support him; denounced his own Justice Department and Federal Bureau of Investigation as “the deep state”; and retweeted inflammatory anti-Muslim videos. Wholly apart from what a court would say, Congress is free to decide in an impeachment hearing that some of Trump’s public comments have violated the Free Speech Clause, the Free Exercise Clause, and the Equal Protection Clause. In addition, future impeachment resolutions may emphasize that Trump has brandished half-truths and lies in ways that exceed anything in living political memory. It is no exaggeration to say that his style of political communication hinges on an instinctual disregard for the constraints of objective truth. That manner of rhetoric has no rightful place in a democracy. It is dangerous in its own right and evokes a dark history of demagogues who sought only to consolidate power.

  There comes a point at which a president can properly be impeached for his statements. Nixon reached that point: the House Judiciary Committee included his public falsehoods in its article of impeachment for obstructing justice. By the same token, Congress may choose to consider Trump’s public remarks bearing on the Russia investigation if it opens an impeachment hearing. More generally, a president may be impeached for his public statements when they are intimately connected to—or essential to the execution of—a broader course of corrupt and abusive conduct.

  But rarely, if ever, will words alone suffice for impeachment. That’s true even of offensive statements that target vulnerable minorities and undermine democratic institutions. Impeaching solely on the basis of a president’s public remarks would verge dangerously close to accepting “maladministration” as a removable offense. Politicians frequently make imprecise, hyperbolic, insulting, flattering, and misleading comments. A politician who didn’t could never make his way to the White House. Allowing Congress to remove a president on the ground that he has made divisive and incendiary public statements would only invite structural instability.

  A remarkable number of Trump’s public comments have involved neither politics nor policy, but rather his global business empire. This leads us to a final alleged impeachable offense: receipt of unlawful emoluments. The Foreign Emoluments Clause prohibits the president, among others, from “accept[ing] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” unless Congress consents. The Domestic Emoluments Clause, in turn, forbids the president from receiving “any other Emolument from the United States, or any of them.”

  Until Trump took office, most people didn’t know (or care) what an emolument was. By January 2017, however, this term was in common use. It even topped the charts on Merriam-Webster.com. As far as words go, that’s a very big deal.

  This surge of popular fascination with the Emoluments Clauses reflects a widespread consensus that Trump is violating them. The nature of Trump’s violation is straightforward. Because of his ownership stake in the Trump Organization, Trump’s private financial interests are intertwined with a global business empire subject to many possible burdens and benefits at home and abroad. As a result, in his dealings with governmental officials, Trump might be guided not only by the national interests of the United States but also by those of the business that bears his name.

  The purpose of the Emoluments Clauses is to eliminate precisely this kind of blurred loyalty. As the Framers recognized, leaders with divided interests cannot faithfully serve those who elected them. Private financial entanglements with foreign powers—or with elements of their own government—risk influencing even the most virtuous leaders. The Emoluments Clauses thus impose clear and categorical limitations. Their prophylactic rule is designed to avoid situations in which the American people must try to read the president’s mind, searching for hints that he may have been seduced to compromise our national interest for his private profit. When the president makes trade deals, deploys soldiers, negotiates treaties, and allocates tax burdens, we shouldn’t have to worry that his own bank account is on the line.

  Trump’s flagrant and continuing violation of the Emoluments Clauses is deeply troubling in its own right. But that pattern of illegal conduct also connects to broader concerns that he has infected our political system with elements of kleptocracy. By undermining the wall of separation between his family business and the US government—and by undeservedly elevating his own children to prominent public positions—Trump has acted more like a third-world dictator than the
leader of a democratic nation. Further, since taking office he has used Twitter to attack journalists who criticize his properties; he has repeatedly visited and promoted Trump-branded restaurants, hotels, and golf clubs; and he has directly threatened the business interests of his prominent political critics. As corruption expert Seva Gunitsky notes: “This is the kind of thing you see in broken states.”48

  As we write, there are several lawsuits pending in federal court that challenge Trump’s receipt of illegal emoluments. We are involved in two of those cases, and it is our considered view that the courts can (and must) enjoin Trump’s constitutional violations. But the existence of this litigation does not prevent Congress from taking immediate action. For example, Congress can require Trump to publicly disclose the full extent of his emoluments. It can also pass a law to limit and regulate his financial entanglements with foreign states. It would become especially important for Congress to act if the judiciary (wrongly) concluded that it lacked the power to address these issues—or if Trump refused to comply with a court order to stop accepting emoluments.

  Although less extreme measures might well suffice, Congress also could address Trump’s ongoing violations of the Emoluments Clauses in the context of an impeachment proceeding. There is historical support for that view. At the Virginia Ratifying Convention, Edmund Jennings Randolph stated that a president “may be impeached” for “receiving emoluments from foreign powers.”49 If the House of Representatives were to seriously consider articles of impeachment on this basis, it would surely want to investigate a number of factual issues beforehand. These would include the nature and scope of Trump’s unlawful emoluments; whether there is any evidence suggesting that Trump has been improperly influenced; and how else Trump’s illegal acts have harmed US interests. In drafting its articles of impeachment, the House might also choose to describe Trump’s misconduct as “Implementing Kleptocracy.” This formulation would encompass receipt of emoluments—but it would also capture an array of corrupt, nepotistic, and financially self-interested actions that have undermined the integrity of US public policy and self-governance.

  In Through the Looking Glass, Humpty Dumpty instructs Alice that, “When I use a word,… it means just what I choose it to mean—neither more nor less.” In response, Alice poses her memorable challenge: “The question is… whether you can make words mean so many different things.” To which Humpty briskly responds: “The question is… which is to be master.”

  With their cynical views of interpretation, Humpty Dumpty and Gerald Ford would’ve gotten on famously—especially if they happened to discuss impeachment. But even words as pliable as “high Crimes and Misdemeanors” are subject to meaningful limitations. The text, structure, and history of the Constitution—coupled with centuries of popular understanding and political practice—limit the universe of impeachable acts. The Constitution relies on Congress to respect those constraints. As we’ll see in the next chapter, that is only the beginning of Congress’s constitutional duty to exercise good judgment in defending the Republic from tyranny.

  3

  TO IMPEACH OR NOT TO IMPEACH

  On February 12, 1998, Senator Robert Byrd of West Virginia cast his vote on whether to remove President Bill Clinton from office. A respected elder statesman, Byrd had served in the Senate for thirty-nine years and was recognized as an authority on its traditions. Friends and foes alike described him as an “institution within an institution.” To many, he embodied aspirations that the Senate might serve as a responsible chamber for national deliberation. His remarks on whether to convict Clinton thus carried special weight.

  Byrd was unsparing in his criticism of the president: “Mr. Clinton’s offenses do, in my judgment, constitute an ‘abuse or violation of some public trust.’” Clinton had willfully lied under oath, breaking his promise to “see to it that the laws be faithfully executed.” He had also “undermine[d] the system of justice and law on which this Republic… has its foundation.” Byrd elaborated: “Does not such injury to the institutions of Government constitute an impeachable offense, a political high crime or high misdemeanor against the state?”

  “But the matter does not end there,” Byrd cautioned. Impeachment involves a “uniquely and especially grave” judgment that affects the entire constitutional system. Senators could therefore vote to acquit even if they thought the president’s conduct was indeed impeachable. As Byrd explained, “simple logic can point one way while wisdom may be in quite a different direction.” In the Senate chamber, he added, “the voice of the people in things of their knowledge is as the voice of God.” And when it came to Clinton, “the people’s perception of this entire matter as being driven by political agendas… tip[s] the scales for allowing this President to serve out the remaining 22 months of his term.” Even if the president were guilty as charged, removing him would “only serve to further undermine a public trust that is too much damaged already.” Byrd then concluded, “I will reluctantly vote to acquit.”1

  With unusual candor, Byrd embraced and exercised the power not to impeach. As we’ve discussed, the Constitution explicitly states that Congress may not end a presidency unless the president has committed an impeachable offense. But nowhere does the Constitution state or otherwise imply that Congress must remove a president whenever that standard is met. Even when members of the House and Senate believe that the president has committed “high Crimes and Misdemeanors,” they possess a legally unlimited prerogative not to end his term in office.

  This negative power can operate at any stage of the impeachment process. Byrd invoked it at the last possible moment. Far more often, however, it is deployed silently and strategically at the very beginning of a scandal. Motivated legislators may oppose, ignore, or sabotage efforts to investigate presidential misdeeds, thus preventing definitive proof from coming to light. In the face of any such evidence, they might seek to discredit investigators, confuse the public, distract the press, or promote a milder punishment. They may also refuse to call for impeachment, urge their colleagues to avoid the “i-word,” and criticize anyone who puts that option on the table. At all times, legislators can privately help a president defend against impeachment talk and publicly campaign against it. Once the House has opened impeachment hearings, it can decline to move forward for a host of reasons that have nothing to do with a failure of proof. And senators, in turn, are free to vote against conviction even if they think the president is guilty as charged.

  Like all grants of discretion in the Constitution, this one is open to abuse. No document can guarantee the wise or responsible exercise of the powers that it establishes. Legislators might reflexively oppose removal out of personal or partisan loyalty to the president—or for other unworthy reasons. But in the hands of a conscientious legislator, the power not to impeach allows full consideration of all factors relevant to ending a presidency. In other words, it allows Congress to exercise judgment.

  Whereas Byrd recognized the need for judgment in impeachments, many legislators prefer to deny their own agency. It can be intimidating to accept responsibility for such politically sensitive decisions. One version of false denial occurs when legislators insist that they are bound by original intent or the criminal code. Another version, relevant here, is the claim that evidence of “high Crimes and Misdemeanors” requires that they advocate for impeachment or conviction. During the Clinton hearings, this was a common refrain from Republicans; if Donald Trump is someday impeached, we can expect to hear it from many Democrats.

  If that claim were true—if the impeachment power were actually an impeachment duty—then legislators have broken their oaths countless times. Don’t take our word for it; take theirs. For the past 229 years, hardly a day has passed without an outraged legislator accusing the president of tyranny, corruption, or criminality. Yet rarely are such claims followed by impeachment resolutions in the House. It would be strange if this fact proved abdication of duty rather than commendable restraint. The better view is that legislator
s have long recognized their own discretion, except perhaps in the most extreme cases.

  Indeed, Congress has repeatedly declined to act despite credible suspicion of impeachable offenses. James Polk invaded Mexico in 1848 without seeking a declaration of war. Warren Harding flouted Prohibition by downing whisky at smoke-filled poker nights in the White House. Franklin D. Roosevelt defied the Lend-Lease Act during World War II by sending military shipments to England. And Gerald Ford’s pardon of Nixon led many to question whether he had struck a deal with the devil. Yet in none of these cases did the House seriously contemplate impeachment.

  The Iran-Contra Affair offers an especially striking example. In the early 1980s, Ronald Reagan supported a Nicaraguan rebel group known as the Contras. When Congress got word, it passed a series of laws limiting all aid to the group—direct and indirect, military and nonmilitary. Ignoring those statutes, the Reagan administration secretly used the National Security Council (NSC) to solicit covert foreign aid for the Contras. NSC Director Robert McFarlane and Marine Lt. Col. Oliver North oversaw the cabal—and were encouraged in their efforts by Reagan’s claim that the Contras were the “moral equivalent of the Founding Fathers.”2 Meanwhile, Reagan urged McFarlane and Admiral John Poindexter to organize a complex arms deal with Iran in hopes of addressing an ongoing hostage crisis. These orders broke numerous trade embargoes and Reagan’s own pledge not to negotiate. The resulting transactions, which slowly evolved into an arms-for-hostages exchange, at times involved an exiled Iranian businessman, the Israeli government, and other exotic third parties. Iran ultimately paid out $48 million—much of which was then secretly diverted to the Contras by Oliver North. His unlawful plan was approved by Poindexter, who had succeeded McFarlane as director of the NSC. These transactions failed miserably at addressing the hostage crisis. But they succeeded in flouting almost every applicable statute, executive branch policy, and rule of constitutional law.