To End a Presidency

by Laurence Tribe

  As details of the scandal came to light, an outraged public demanded answers. Poindexter resigned and North was relieved of his duties, though not before they both destroyed reams of evidence. Multiple investigations were launched in Congress and the executive branch, focused largely on a single issue: Did Reagan know about funds flowing from Iran to Nicaragua?

  Insisting that he didn’t recall most of the key facts, Reagan built a defense on negligence and ignorance. In this telling, subordinates took advantage of his loose management style to engage in illegal activities that they believed would further his goals, but of which he was unaware. Investigators and the public generally accepted this story, though it raised a significant question of its own: Where was the president in all this? As commentator Anthony Lewis remarked, “Mr. Reagan did not act in this affair with the minimum attention required of his office. He was not a president.”3 Congressional investigators reached an even more damning conclusion: Reagan had “created or at least tolerated an environment where those who did know of the diversion [of funds] believed with certainty they were carrying out the President’s policies.”4

  These findings would undoubtedly have justified further hearings and a vote on articles of impeachment—especially given hints of a cover-up and doubts about Reagan’s complete honesty. As Senator Daniel Inouye noted at the time, Iran-Contra involved unconstitutional “secret policy making.” Congress had uncovered “a tale of working outside the system and of utilizing irregular channels and private parties accountable to no one on matters of national security.”5 These extraordinary violations of the separation of powers posed a direct threat to the constitutional system.

  Yet the House stayed its hand. According to Representative Lee Hamilton, this was partly because nobody found a smoking gun: “If you are going to impeach a president you’ve got to have very direct proof and we just didn’t have it.”6 Reagan had lied to Congress, violated statutes, and failed to supervise key subordinates, but there was never clear evidence that he had known specifically about diversion of Iranian funds to the Contras. Whether he had committed “high Crimes and Misdemeanors” could plausibly be argued both ways.

  Perhaps more important, Reagan remained popular. Polls showed that Americans liked and trusted him—and didn’t feel the same way about Vice President George H. W. Bush, who would be elevated if Reagan were removed. Further, key players in Congress feared disaster if another presidency went down in flames just thirteen years after Watergate. As Representative Hamilton later admitted, “we really felt that the Reagan presidency was on the brink, and the whole process of government could collapse, literally… it really was a constitutional crisis for us at that point.”7 Naturally, the Cold War also loomed over this analysis. Legislators feared that an impeachment would disrupt Reagan’s ongoing nuclear disarmament talks with Soviet leader Mikhail Gorbachev. Finally, Reagan was halfway through his second term. Removing him did not seem worth the trouble, especially after he cooperated with investigators, installed a well-respected chief of staff, and signaled openness to enhanced oversight of covert actions.

  All these factors affected the House’s final decision not to accuse Reagan of impeachable offenses. They also help explain why House members only briefly discussed impeaching Vice President Bush—despite evidence that he had known about some illegal aspects of Iran-Contra. Later, while serving as president, Bush brought the story to an end by pardoning six Reagan administration officials involved in the scandal. This self-interested pardon effectively doomed an independent prosecutor’s lingering campaign to reveal the full scope of executive branch misconduct.

  As the Iran-Contra saga demonstrates, invoking impeachment is always a matter of congressional judgment. Suspicion of “high Crimes and Misdemeanors” may begin the story but can never end it. At every step along the way—from the earliest whispers of impropriety to a final vote in the Senate—legislators must choose whether and how to proceed. Those decisions reach beyond the president’s alleged misdeeds. They often encompass big questions about what’s best for the Republic, and small questions about what’s best for each legislator and political party.

  Every impeachment is unique. That’s why analyses of this power often struggle to descend from lofty generalizations. Still, it’s possible to map out the major questions that Congress usually must resolve in cases of presidential wrongdoing. We do so here in three steps. First, we explain why the Constitution is properly interpreted as vesting broad impeachment discretion in the House and Senate. Second, we describe other powers that Congress can deploy in response to presidential malfeasance—including its authority to censure the president. Finally, we propose a general framework for assessing the biggest risks that Congress must consider in deciding whether to impeach. These include the risks of impeaching too early and too late, as well as the inherent risks that accompany even a well-timed, well-justified impeachment.

  If you spend enough time drinking at bars in Washington, DC, you’ll hear a lot of jokes about Congress. Almost without fail, they end with the same punchline: “and then Congress did nothing.” Sometimes these jokes are funny. Most of the time they’re sad. But their bottom line is right. As a matter of constitutional law—if not political reality—Congress enjoys nearly unbounded discretion in deciding whether and when to exercise its authority. Inaction thus ranks among Congress’s mightiest (and most well-exercised) powers. For an especially high-profile example of this point, consider the Senate’s handling of a recent Supreme Court nomination.

  Justice Antonin Scalia passed away on February 13, 2016. Within weeks, Senate Majority Leader Mitch McConnell publicly declared that the Republican-controlled Senate would not hold a confirmation hearing on any nominee put forth by Barack Obama. McConnell justified this move by arguing that it was Obama’s last year and the issue should be settled in the November 2016 election. This was an embarrassingly weak and indefensible position, squarely at odds with centuries of legislative practice. Yet McConnell refused to budge even after Obama nominated Chief Judge Merrick Garland of the District of Columbia Court of Appeals—a widely respected centrist. When Trump won the presidential election, McConnell’s cynical gambit guaranteed that an unyieldingly conservative judge could be nominated and confirmed. And that’s exactly what happened. On April 8, 2017, Neil Gorsuch was sworn into the seat once occupied by Scalia. He has already proven himself a reliable warrior for conservative causes.

  In the period between Scalia’s death and Trump’s electoral victory, some argued that the Senate was violating Article II, Section 2 of the Constitution by refusing to consider Garland’s nomination. That section provides: “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” Constitutional critics of the Senate asserted that the word shall in this sentence applies both to the president and to the Senate. They added that Article II, Section 2 thus required the Senate to perform its “advice and consent” function by meeting with and voting on judicial nominees. As attorney David Gans wrote, “the Constitution does not require the Senate to confirm a particular nominee, but it does require the Senate to consider the nominee.”8

  The Senate’s treatment of Chief Judge Garland was exceptionally dishonorable. It violated longstanding practice and shattered many of the norms still applicable to judicial nominations. But we’re skeptical that the Senate violated the Constitution. While Article II, Section 2 requires Senate consent in order for a judicial nominee to be confirmed, it doesn’t impose an affirmative duty on the Senate to take specific actions when presented with a nominee—much less to do so within a particular time frame. In practice, it would be impossible to draw a principled, enforceable line between ordinary foot-dragging (valid) and failure to give a nominee “true” consideration (supposedly invalid).

  Especially given that the Senate’s role in the nomination process is to serve as a check on the executive, we should be wary of insisting that it can do so only one way. As Professor
Michael Ramsey has observed, the Constitution “often provide[s] for one part of government to propose an action subject to the approval of another part.” That’s an ordinary feature of Senate treaty approval, proposal and passage of bills, and ratification of proposed constitutional amendments. Ramsey adds: “The Constitution is not read in any of these situations to impose a duty on the second entity to act formally on the proposal. If the second entity fails to approve, for whatever reason and in whatever manner, the measure does not take effect.”9 (The noteworthy exception to this rule is Article I, Section 7, which provides that a bill passed by Congress becomes law within ten days unless the president vetoes it.)

  This background explains why it is possible for Congress to remain a celebrated bastion of do-nothingness. In our separation of powers, rarely is it affirmatively commanded by the Constitution to do something. As any savvy lobbyist knows, congressional inaction is frequently and strategically deployed as a deliberate course of conduct by the majority. Where Congress is vested with constitutional powers, it is almost always vested with corresponding discretion about whether and when to use them.

  That lesson applies with full force to impeachment. Too often, this power is described as though it operates mechanically, springing to life whenever triggered by “high Crimes and Misdemeanors.” That perspective is not only wrong but misleading. The Framers didn’t establish the House as a roving commission to smite every wrongdoer. Instead, they entrusted the impeachment power to an institution with the capacity and legitimacy to make sensible political judgments for the whole nation.

  This discretion is confirmed by constitutional text. Article I, Section 2 provides that the House “shall have the sole Power of Impeachment.” Article I, Section 3 states that the Senate “shall have the sole Power to try all Impeachments.” This simply isn’t the kind of language that the Constitution uses to mandate official action. While it is true that the president “shall be removed from office” if impeached and convicted, the word shall in this sentence addresses the consequences of conviction, not the decision whether to bring charges in the first place.

  In contrast, consider how the Constitution describes the Senate when it convenes as a court of impeachment: “When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” This is what mandatory constitutional language looks like. To adjudicate articles of impeachment, the Senate must be on “Oath or Affirmation” and the chief justice must preside if the president is in the dock. Further, to convict the defendant, two-thirds of the Senate must support that outcome. Nothing about this text admits of discretion.

  In short, the Framers knew how to issue commands—and nowhere did they instruct the House and Senate to take aim at every potentially impeachable offender. Instead, they endowed legislators with the option of acting, but not with the duty to act in every instance where removal would be justifiable. Congress thus bears the heavy burden of exercising judgment.

  Denying the existence of congressional discretion, partisans supporting an impeachment often suggest that the House should function only as a “grand jury.” On that account, which is borrowed from the criminal justice system, the bar for impeaching is both low and mandatory. The House need only determine whether there is probable cause to believe that the president committed “high Crimes and Misdemeanors.” If there is, the House must immediately force the Senate to hold a trial.

  Grand jury analogies, however, are badly misplaced when it comes to impeachment. Lacking an affirmative duty to impeach, the House is never obliged to take that drastic step unless it concludes that doing so is in the greater interest of the nation. This requires a far more sensitive judgment than any grand jury is expected to make. And for good reason: accusing the president of “high Crimes and Misdemeanors” is an extraordinary act in its own right. As Senator Byrd warned, impeachment is “the greatest censure, the greatest condemnation, that the House can inflict upon any President.”10 Further, a Senate trial of any chief executive is both costly and divisive. The House cannot responsibly impose that burden on the nation based merely on suspicion of wrongdoing. On the contrary, House members should vote to impeach only if they genuinely believe that the accusations are well supported and warrant the president’s immediate removal from office. We must therefore reject grand jury analogies, which are often deployed to relieve the House of responsibility for its most consequential decision.

  If the criminal justice system is to be our reference point, then prosecutors offer a far superior analogy for the House. Discretion is essential to the prosecutorial role. Considerations of fair play and justice properly guide decisions about whom to prosecute, what charges to bring, and what punishments to seek. Those decisions must also account for sound public policy, the allocation of limited resources, and sustaining governmental legitimacy. Just as prosecutors need not hound every potential lawbreaker, the House need not impeach all “high Crimes and Misdemeanors.” For politicians and prosecutors alike, the rule of law is most nobly served when tempered by values of mercy and wisdom. As Professor Akhil Amar writes, that is particularly true when the House votes on articles of impeachment, since “the ordinary locus of pretrial mercy in our constitutional system—the President’s pardon power—is inapplicable.”11

  Of course, discretion takes on a very different cast in the realm of impeachment than in standard criminal cases. Rarely will a single prosecutorial decision risk catastrophic harm. In contrast, a single decision to impeach the president—or not to impeach him—could have extraordinary consequences. That’s why fact-finding in the House must always be followed by careful analysis of a tough political judgment: given what we’ve learned, what’s the best course forward for the American people?

  In answering that question, the Constitution offers little direct guidance. Apart from requiring proof of “Treason, Bribery, or other high Crimes and Misdemeanors,” it allows the House to impeach—or not—for any reason. Thus, House members may decline to impeach because the nation faces more urgent issues; they definitely lack two-thirds support in the Senate; they don’t believe a decisive majority of the public would support their decision; or they have good reason to believe other political remedies can better address the president’s misconduct going forward.

  Most of what we’ve just said applies to the Senate, too, with a crucial difference. Whereas the House decides whether to set in motion the vast and unsettling machinery of impeachment, that’s a foregone conclusion for the Senate. The harm is done; those costs are sunk. For senators, the only question is whether the president should be removed from office (and, if so, whether he should be disqualified from future office holding). That’s no small matter, obviously. Yet compared to the House, the Senate’s range of options is narrower and the scope of its discretion more clearly defined. If we need a criminal justice analogy for the Senate, the best candidate is “judge”—though senators may consider practical, moral, and political factors that have no place in a well-constituted court of law.

  There’s actually useful precedent on this point, for a change.12 While prosecuting Clinton’s trial in the Senate, Representative Bob Barr repeatedly referred to senators as “jurors.” Agitated, Senator Tom Harkin took to the Senate floor: “I object to the use and the continued use of the word ‘jurors.’”13 Chief Justice William Rehnquist agreed: “The chair is of the view that the Senator from Iowa’s objection is well taken, that the Senate is not simply a jury; it is a court in this case. And therefore counsel should refrain from referring to the Senators as jurors.” Later, Harkin explained his motives for raising this objection: “As Alexander Hamilton said, we are judges, and judges can take into account a lot of things other than the facts and the law.”14 That’s a questionable statement about real judges, though it’s certainly true of the Senate sitting as a court of impeachment.

  In sum
, there can be no doubt that the House and Senate wield considerable discretion on the matter of impeachment. Arguments to the contrary are usually partisan ploys rather than good-faith interpretations of the Constitution. The important questions concern how discretion should be exercised, not whether it exists at all.

  In Chapter 4, we’ll examine why the Framers gave the impeachment power to Congress. At this point, though, it’s helpful to consider an implication of that choice. Unlike the Supreme Court or state officials (who were also considered), Congress is well equipped to corral a rogue president through less extreme measures. As the saying goes, when all you have is a hammer, the world is full of nails. But not every presidential misdeed—not even every “high Crime[] and Misdemeanor[]”—should be met with a hammer. In deciding whether to pull impeachment from its toolbox, Congress must consider the possibility that its other powers may suffice.

  We recognize that it might sound unrealistic these days to urge that Congress act effectively and creatively during a national crisis. Frozen by dysfunction, trapped in cycles of recrimination, awash in dark money, and captured by powerful interests, our national legislature is in abysmal shape. Fans of alliteration now call it the “broken branch.”15 Experienced observers caution that “it’s even worse than it looks.”16 And serious scholars write books with titles such as The Decline and Fall of the American Republic. According to Professors Eric Posner and Adrian Vermeule, ours is an era “after the separation of powers,” dominated by an ever-more-imperial presidency and an embarrassingly outmatched legislature.17