To End a Presidency

by Laurence Tribe

  Closely related to party control, but sometimes distinct from it, is the president’s relationship with party leaders in the House and Senate. Politics are about more than polls and policies. At times, personalities make all the difference.

  Consider two stories with very different endings. When revelations of Clinton’s wrongdoing came to light, impeachment was not a foreordained conclusion. At least some congressional Republicans would have favored a less extreme response, such as a resolution of censure. But instead, the Starr Report ballooned into our nation’s second impeachment. This was partly due to legitimate outrage at Clinton’s misconduct. It was also the product of a cynical (and misguided) political calculation by Republicans. Yet a major explanation for the impeachment was personal. House Republican leaders hated Clinton with every fiber of their being. A total breakdown in communication between the White House and Congress, alongside years of slow-boiled venom, had destroyed relationships that might otherwise have calmed things down.

  Iran-Contra shows what can happen when those relationships are intact. Ronald Reagan was a Republican’s Republican. House Speaker Tip O’Neill was a rock-ribbed Democrat. They weren’t friends. At best, they were frenemies. Journalist John Farrell recalls that O’Neill “stood like an oak, skewering the president as a tool of the wealthy, a creature of the country club, as a mean old ‘Ebenezer Scrooge.’”57 Reagan, in turn, reportedly described O’Neill as Pac-Man: “a round thing that gobbles up money.”58 But even amid bruising political battles, they would occasionally socialize and meet for drinks. More important, they tried—at least most of the time—to put country above personality and party. When Iran-Contra broke, the House would have been justified in holding impeachment proceedings. But O’Neill went to the White House and met alone with Reagan. According to Boston Globe reporter Robert Healy, O’Neill made clear that there would be no impeachment. The nation was still traumatized by Watergate. For all their rivalry, O’Neill would not put the country through that nightmare again. Whether or not this was the right move, it shows what can happen when lines of trust and communication are open.

  These stories gesture to still another variable that can influence impeachment decisions: the state of partisanship and institutionalism in Congress. What do the key players and swing voters care about? Are they unthinking, unshakable party loyalists? Or are they more independent-minded in outlook, concerned primarily with preserving democratic institutions and the separation of powers? Every session of Congress has its own gaggle of partisan zombies. Every session also has a core of elder statesmen, moderates, and mavericks—though recently those ranks have thinned to almost nothing. Whether an impeachment takes flight will often depend on which group controls the levers of power. In some extreme cases, the determining factor may be what it takes for even diehard partisans to reach their breaking point.

  Nixon’s case is illustrative. Even as evidence against the president piled up, many Republican voters stood by him. Indeed, on the day he resigned from office, over 50 percent of registered Republicans approved of his performance. But in Congress, the picture looked very different. At first, partisan loyalties had held firm. In February 1974, Representative William L. Hungate bitingly remarked that “there are a few Republicans who wouldn’t vote to impeach Nixon if he were caught in a bank vault at midnight.”59 By August, however, Nixon’s support had collapsed. His threat to the nation was clear, and his compulsive lying had alienated allies. A convening of Republican Party elders finally concluded that Nixon had to go. On Wednesday, August 7, 1974, Senator Barry Goldwater, Senate Minority Leader Hugh Scott, and House Minority Leader John Rhodes entered the Oval Office. After some awkward pleasantries, Goldwater cut to the chase: “[J]ust about all of the guys have spoken up and there aren’t many who would support you if it comes to that.” One day later, Nixon announced his resignation.60

  Goldwater, like many other congressional Republicans, had snapped after a long and tortured investigation of Nixon’s misdeeds. It wasn’t just the underlying acts that offended him, but also the cover-up. On a call with General Alexander Haig, Goldwater had warned that Nixon “has lied to me for the last time and lied to my colleagues for the last time.”61

  Goldwater’s phone call brings us to a distinct factor in impeachments: whether congressional leaders believe that the president is cooperating with them and respecting their prerogatives. As we discussed in Chapter 3, this affects perceptions of whether less extreme measures will suffice. It also affects the personal and political dynamics that can determine outcomes in Congress. Offending House and Senate leaders, and obfuscating facts, casts the worst possible light on alleged high crimes and greatly increases the odds of removal. History could not be clearer on this point. Nixon resigned after repeatedly shooting himself in the foot. Reagan survived Iran-Contra partly by collaborating with investigators, cleaning house, and promising newfound respect for the will of Congress. And Clinton suffered in the House from a perception that he had acted in bad faith during and after Starr’s investigation.

  Of course, impeachments aren’t only about partisan dynamics and personal relationships; they’re also about the original sin itself, the “high Crimes and Misdemeanors.” We can’t predict whether Congress will impeach without knowing what the president has done and what evidence has come to light. Although impeachment and proof of “high Crimes and Misdemeanors” don’t always march together, evidence of presidential misconduct certainly matters. Usually there are three key questions: (1) What did the president do? (2) Why did the president do it? (3) Does this conduct justify impeachment?

  Inevitably, each of these questions will be clouded by some uncertainty. In assessing whether Congress is likely to impeach, it’s useful to determine how clearly we can answer each of them. It’s also helpful to identify swing votes in the House and to ask whether they and their constituents may take a different view based on the news sources and information culture that they favor. Questions about what happened—and about how much we can trust the available evidence—may look very different on Fox versus MSNBC.

  This brings us to a final variable: Who is next in line to the presidency? Legislators never lose sight of that question. Indeed, in Johnson’s case this was among the most decisive considerations. After Abraham Lincoln’s assassination, Johnson had taken office without naming a vice president. As a result, Benjamin Wade—the president pro tempore of the Senate—would ascend if Johnson was removed. Wade was among the most radical of Republicans and had burned bridges with many of his colleagues. They feared that if he took Johnson’s spot, Wade would drive the party to ruin in the 1868 presidential election. Anxiety about elevating Wade thus pervaded the Senate and shaped its decision. As one newspaper explained in a burst of candor, “Andrew Johnson is innocent because Benjamin Wade is guilty of being his successor.”62

  Over a century later, Nixon tried (and failed) to create a similar dynamic. By late 1973, impeachment was in the air and Nixon was on the defensive. But the cagey president had an ace in the hole: his vice president, Spiro Agnew. By almost every relevant measure, Agnew was painfully unqualified for our highest office. In private, Nixon and John Ehrlichman jokingly called him “the assassin’s dilemma.”63 Nixon was sure that Congress wouldn’t impeach if doing so meant elevating Agnew. Unfortunately for Nixon, Agnew was caught in a corruption scandal and had to resign in October 1973. With Watergate hearings looming over him, Nixon deliberately sought a replacement unsuitable for the presidency. This led him to Representative Gerald Ford. As biographer Evan Thomas notes, “with the poor political judgment that increasingly afflicted him, Nixon believed that Ford provided him with a layer of protection against impeachment.”64 At one point, Nixon remarked that Ford was a “good insurance policy.”

  As it turned out, Nixon was wrong. Ford was a seasoned and well-liked legislator with a base of support in Congress. Fear of elevating him would not stymie the impeachment proceedings. When Nixon finally resigned in August 1974, the nation breathed a s
igh of relief at the thought of his “insurance policy” occupying the Oval Office. It’s revealing, though, that Nixon sought to remain in power by poisoning the well. Although his effort failed, a president who would commit impeachable offenses is likely the kind of person willing to use such dastardly tactics.

  The Framers made a profoundly important decision when they assigned impeachment to Congress. This power is inseparable from the institution that exercises it. Understanding how Congress assesses and undertakes impeachments is thus invaluable for anyone who would advance or oppose an effort to end a presidency. And it offers essential context for the colorful history of impeachment talk in the United States—a tale that stretches from political attacks on George Washington to the latest, greatest controversies surrounding Donald Trump.

  5

  IMPEACHMENT TALK

  On January 25, 1809, Josiah Quincy of Massachusetts rose with solemn business for the House of Representatives. President Thomas Jefferson, he declared, had committed “a high misdemeanor… against this nation.”1 As his startled colleagues listened intently, Quincy made his case. General Benjamin Lincoln had served as Collector of the Port of Boston since the Washington administration. Hobbled by age, General Lincoln had repeatedly asked Jefferson for leave to resign the post. But Jefferson had ignored these requests. He didn’t want the position to become vacant until his ally, Secretary of War Henry Dearborn, could be appointed to occupy it. As a result of Jefferson’s deliberate inaction, General Lincoln—a hero of the Revolutionary War—was forced against his will to keep the position and endure brutal criticism from local papers. This misuse of the appointment power, Quincy reasoned, constituted an impeachable offense. The House had a moral and legal duty to investigate Jefferson’s misconduct.

  Quincy’s peers knew that the Massachusetts Federalist was no fan of Jefferson’s. Just months earlier, he had written to John Adams that Jefferson was a “dish of skim milk curdling at the head of our nation.”2 Elsewhere, Quincy dismissed Jefferson as a “snake in the grass”3 and a “transparent fraud,” supported only by “dupes or ruffians.”4 Even still, Quincy’s call for impeachment hearings caused an immediate scandal in the House. Eighteen legislators took turns denouncing him. Representative James Gholson urged that the resolutions not be printed; they “had excited his astonishment more than anything which had occurred during the session.”5 Representative William Burwell remarked that he “knew of but one parallel to it, in the history of impeachments, and that would be found in Gulliver’s Travels.”6 After a general pummeling, Quincy’s proposal failed. The vote was 171 to 1.7

  In Congress, though, success and failure are often more complex than they appear. Before the Senate adjourned that same day, Dearborn’s nomination to serve as Collector of the Port of Boston was submitted to the Senate. Thanks to Quincy’s aggressive maneuver, General Lincoln was soon relieved of his unwanted and tiresome duty. Further, as a biographer writes, Quincy’s “political friends in Congress… approved of what he had done, and those in Boston were unanimous in their approbation.” Decades later, after serving as president of Harvard University, Quincy fondly recalled his resolution to impeach Jefferson. “No public exertion of mine,” he said, “has been more fully justified by the reflections of a long life.”8

  Until now, we’ve largely focused on credible attempts to end presidencies through impeachment. We’ve evaluated the reasoning, judgment calls, and decision makers involved in that process. We’ve also discussed the most important cases: John Tyler, Andrew Johnson, Richard Nixon, Ronald Reagan, and Bill Clinton. These stories anchor any history of the subject.

  But the tale of impeachment is broader and more complex than is often appreciated. The vast majority of impeachment talk in US history hasn’t ended with—or even sought to achieve—a House vote and Senate trial. To fully comprehend this constitutional power, we must therefore look beyond a single endgame. Impeachment has been invoked by many players, for many purposes, since the founding era. Exploring their tactics allows for a more sophisticated grasp of the use and abuse of impeachment talk—both historically and in our own time.

  Taking the long view also confirms that we live in a strange new world. The culture of impeachment in the United States has ebbed and flowed over the years. For the most part, however, a study of our nation’s past discloses a near-total absence of calls for impeachment. To be sure, there have always been radicals or outliers who favored expelling whoever happened to be president. But if we focus on mainstream opinion—even taking an expansive view of the term mainstream—the record is clear. Throughout most of US history, impeachment wasn’t on anybody’s agenda. As historian David Kyvig observed, “impeachment remained in the constitutional shadows.” It was “occasionally called for by isolated voices but little remembered by the general public and seldom given serious consideration by public officials, journalists, or scholars.”9

  That world is over. Compared to the first two hundred years of the nation’s history, impeachment now plays a drastically more important and disruptive role in US politics. Modern Americans live in the post-Clinton age of a permanent impeachment campaign.

  We suspect this point will be intuitive. Who among us isn’t frequently bombarded with tweets, Facebook messages, fund-raising e-mails, newspaper editorials, and blog posts demanding (or opposing) impeachment? Although it’s easy to take that background noise for granted, or to dismiss it as ordinary political rhetoric, that’s a mistake. To borrow a phrase in widespread circulation under President Donald Trump, “this is not normal.” In no other period has impeachment played the role it now occupies in the ordinary conduct of US politics. Here we’re referring not only to the Trump administration but also to the presidencies of Bill Clinton, George W. Bush, and Barack Obama.

  Efforts to end a presidency do not occur in a vacuum. They take place in a society with received norms and expectations about the use of this dangerous power. Understanding that culture is essential to any analysis of whether (and how best) to end a presidency. Without that context in mind, advocates of impeachment may discover that their plans tragically backfire.

  George Washington was sworn in as president on April 30, 1789. As everyone knew, he was a living legend—an embodiment of republican virtue. Washington had led American forces to victory in the Revolutionary War. He had presided with dignity over the Constitutional Convention. He had been chosen unanimously by the Electoral College to serve as the nation’s first president. And he was admirably self-conscious about making proper use of his powers: “I walk on untrodden ground. There is scarcely any part of my conduct which may not hereafter be drawn into precedent.”10

  Washington enjoyed a prolonged grace period. But leading a new nation is no easy task. Inevitably, forces of party and faction appeared on the scene. Criticism of Washington emerged. Then, in 1795, word leaked that Chief Justice John Jay—acting on Washington’s orders—had secretly negotiated a treaty with Britain whose terms left most Americans aghast. Although the Jay Treaty passed the Senate by exactly two-thirds, James Madison and Thomas Jefferson whipped up a frenzied opposition. At the height of the political struggle, Jay bitterly remarked that he could travel the nation guided solely by the light of his own burning effigies.

  As the tempest grew, calls to impeach Washington echoed in a few corners of the nation. In Virginia’s Petersburg Intelligencer, for instance, an anonymous citizen wrote: “The constitution has given the mild punishment of impeachment for the greatest abuses. The people are not sanguinary—they only demand that those should be removed from the office who abuse power.”11 Even some who saw impeachment as futile still thought it worth the effort. As one commentator remarked in Philadelphia’s Aurora General Advertiser: “There are important purposes to be gained by even a vote of impeachment… It would convince the world that we are free and that we are determined to remain so. It would be a solemn and awful lesson to future Presidents.”12

  In the 1790s, the idea of impeaching Washington amounted to pol
itical heresy and was never taken seriously. These editorials, however, suggest some early popular uncertainty about what exactly impeachment was for. This was a new power at the federal level, meant to limit a new kind of leader in a new form of government. The American people, having just fought a war against King George III of England, were excitable when they sensed tyranny. It wasn’t clear at the very beginning what role impeachment would play in restraining the president. That instability in views of impeachment may explain why John Adams experienced such fear when his handling of the Hermione incident led opposition leaders to call for his ouster (as we saw in Chapter 4).

  By the early 1800s, though, many Americans had come to see impeachment as a stillborn power. In 1820, for instance, Jefferson concluded that “impeachment is an impracticable thing, a mere scarecrow.”13 Although he made this remark in reference to judges, it was soon applied to presidents. Fourteen years later, expressing despair about President Andrew Jackson’s many abuses of power, one senator wrote that impeachment had “ceased to be any effective protection to the purity of the Constitution.” He added, “it has become but little better than a tale to amuse, like Utopia, or Swift’s flying island.”14 In 1848, this understanding was treated as common sense. During the fight to censure James Polk for invading Mexico, a congressional Whig readily observed that “impeachment is almost a dead letter in the Constitution.”15

  The only serious impeachment effort in the antebellum period, which we discussed in Chapter 1, was the failed campaign against John Tyler. In that case, the outgoing House Whig majority was so infuriated by Tyler’s aggressive use of vetoes that its political judgment temporarily short-circuited. Although we have not found evidence either way, we suspect that the Whigs’ crushing defeat in the midterm elections in 1842 only encouraged perceptions that impeachment was virtually impossible.