To End a Presidency

by Laurence Tribe

  As journalist Masha Gessen warns, Trump’s endless firehose of lies has a still more menacing aspect. Whether by design or by instinct, Trump seeks to “assert power over truth itself”—or, rather, to displace objective truth and falsity as relevant criteria for evaluating his conduct.37 The same pattern emerges from Trump’s frequent complaints about US libel law. Here is a man who blasts the courts for protecting falsehoods, but claims that Barack Obama isn’t a citizen and that Ted Cruz’s father was behind the JFK assassination. At bottom, truth and falsity are beside the point. Trump wants to silence his critics—and he resents anything, including the law, the courts, and the free press, that prevents him from using wealth and power to exercise total control over the marketplace of ideas.

  In many respects, Trump’s approach to political conduct is essentially autocratic in character. It thus calls to mind Alexander Hamilton’s prescient warning:

  When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanour—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may ride the storm and direct the whirlwind.38

  While Trump declined to serve his country, and thus lacks “the advantage of military habits,” the rest of this description is unnervingly accurate. With a showman’s flair, Trump creates and capitalizes on chaos—often with little apparent concern for the inconvenient constraint of factual information.

  History offers an unnerving lesson on this point: without the ideal of objective truth, democracy is doomed. As Professor Timothy Snyder warns in his influential pamphlet, On Tyranny, “to abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so.”39 Authoritarian leaders who cannot destroy a free press instead disable and delegitimize it. Inducing a nihilistic view of facts—and disbelief in the institutions that support them—goes a long way toward achieving that goal. Hannah Arendt described the final consequences of this strategy in The Origins of Totalitarianism: “In an ever-changing, incomprehensible world the masses had reached the point where they could, at the same time, believe everything and nothing, think that everything was possible and that nothing was true.”40 We’re not there yet, indeed we’re far from it, but that’s the direction in which we’re trending.

  Stepping back, we can now see how the various ailments of the US political system reinforce one another. As Americans lose faith in institutions, including the media, they start trusting only a handful of sources for truthful information. Because many of these sources are balkanized along partisan lines, and because people can now filter out the sources that they don’t agree with, Democrats and Republicans increasingly feel they inhabit different realities. In some respects, they do. The other party comes to seem dangerous and delusional—a view encouraged by friends and leaders in one’s own echo chamber. This increases tribalism, polarization, and partisanship, which in turn enhance dysfunction, which in turn leads Americans to continue losing faith in democratic institutions. It’s a terrible cycle that we have thus far been unable to stop.

  Taken together, what does all this mean for impeachment? Although prediction is tricky business, we’re confident in three forecasts. First, the nation’s broken politics will generate high levels of harmful, hyperpartisan impeachment talk. Second, removing a president by impeachment will remain exceptionally difficult and may become an even heavier lift (due to partisan dysfunction in Congress). Finally, it will become increasingly important for impeachment analysis to assign substantial weight to the risk of long-term democratic decline. These three predictions capture trends that will be relevant not only to Trump but also to his successors—though we certainly recognize that if Trump is impeached, the arc of history may bend along a very different path.

  1. Impeachment talk. Modern Americans are quick on the draw when it comes to demanding impeachment. The history recounted in Chapter 5 shows how unusual that makes us. Only in the post-Clinton era has impeachment talk become a routine aspect of partisan strife. As we’ve emphasized, Trump’s irregular conduct is the most important explanation for the current fixation on impeachment. Some of his sketchy dealings and abuses of power might well constitute “high Crimes and Misdemeanors,” and it’s wholly appropriate to insist that Congress investigate these subjects. But there’s also a much bigger picture to consider. The broken political dynamics that we’ve described provide crucial context for calls to impeach Trump. They also help to explain why frequent resort to impeachment talk likely will outlast him.

  We now live in a society where many voters believe that the other political party threatens national security and is controlled by bad people with terrible values. For Republicans and Democrats alike, the resulting feelings of distrust and animosity make it increasingly unbearable to imagine leaving their opponents in control of the White House for four years. Reduced confidence in other institutions that might check the president, and daily reminders of expanded executive power, enhance that anxiety. So do opposition echo chambers, which usually cast the president’s conduct in a menacing and conspiratorial light.

  The resulting tendency is toward an existential dread that makes mere political opposition seem insufficient. Because every president uses power in controversial ways, it isn’t hard for motivated operatives to identify plausible “high Crimes and Misdemeanors.” Almost inevitably—and at times immediately—many electoral losers become impeachers-in-waiting. Even if party leaders in Congress disclaim any intent to impeach, outlier party officials (and echo chamber participants) will cater to the base and give credence to their demands. That’s especially true if one or more billionaires decide to throw their formidable muscle behind the cause. When Tom Steyer spent tens of millions of dollars on impeachment ads in 2017, and then insisted that Democratic candidates support that position, he offered an unusually raw display of money’s power to redefine the political terrain.41

  Impeachment talk is thus here to stay. In a polarized and partisan climate, vocal members of the opposition party will almost always go there. Following tactics used under George W. Bush and Barack Obama, the president’s allies will then seek to exploit that rhetoric for their own benefit.

  The result is a variant on Godwin’s law. In 1990, Mike Godwin noticed that nearly every debate on the Internet somehow ended in the same place. He therefore proposed the most famous theory of cyber-argumentation: “As an online discussion continues, the probability of a reference or comparison to Hitler or Nazis approaches 1.”42 A similar rule now applies to our political system. Call it the Tribe/Matz Hypothesis: As a discussion of US politics continues in the early twenty-first century, the probability that someone references presidential impeachment approaches 1.0. Sometimes discussion of impeachment is right and reasonable. Most of the time, though, it’s needless and harmful. As we saw in Chapter 5, a superabundance of impeachment talk can encourage political extremism and partisanship while undermining the availability of impeachment when it’s truly needed.

  2. Impeachment will remain difficult. Impeachment talk has now become so common—and so casual—that it’s easy to forget the United States has never actually removed a president from office this way. By design, impeachment has always been an exceptionally difficult power to invoke. Polarization and hyperpartisanship have made that truer now than ever before.

  First consider the House of Representatives. As explained in Chapter 4, when the House majority and the president belong to the same party, impeachment is a virtual nonstarter. Recent changes in the political system have only entrenched that rule. For many House members, ke
y decisions are now driven by highly partisan donors and primary voters. Those groups are the most strongly inclined to dismiss, tolerate, or rationalize evidence of wrongdoing within their party. Although it’s not unimaginable that they could be convinced to support impeachment, the evidence would have to be overwhelming and the president’s conduct would have to be almost unimaginably evil. Otherwise, a House controlled by the president’s party might refuse to act even if national public support for impeachment shot well above 50 percent. Voters who favored removal would have to wait until the next election to make their voices heard in Congress.

  In contrast, when the House majority and the president belong to different parties, the House will face substantial pressure to impeach. Modern political dynamics all but guarantee it. That’s true regardless of whether the president has actually committed an impeachable offense, as we learned under Bush and Obama. Even though neither of those presidents deserved impeachment, over 30 percent of the electorate—including a clear majority of the opposition party—came to feel otherwise. These opinions were based less on any single misdeed than on a general view that the president was a lawless tyrant. And promoting that view has now become a standard tactic in opposition politics. We can therefore expect a general increase in the number of impeachment resolutions filed in the House. We can also expect that opposition leaders will be pushed to impeach, and will suffer internal blowback if they don’t. The key question is whether they will cave to this pressure. One risk of our broken politics is that the House will undertake additional, doomed partisan impeachments—a development that would be disastrous for the nation as a whole.

  If the House does impeach the president, we arrive in the Senate. There have been moments in US history when the Senate lived up to its reputation as the world’s greatest deliberative body. But this isn’t one of them. In a dramatic speech on July 25, 2017, shortly after he was diagnosed with brain cancer, Senator John McCain mourned the Senate’s decline:

  Our deliberations… are often lively and interesting. They can be sincere and principled. But they are more partisan, more tribal more of the time than any other time I remember. Our deliberations can still be important and useful, but I think we’d all agree they haven’t been overburdened by greatness lately. And right now they aren’t producing much for the American people.

  McCain exhorted his colleagues to look past partisan allegiance and reflexive loyalties. “We are an important check on the powers of the Executive,” he reminded them. “Whether or not we are of the same party, we are not the President’s subordinates. We are his equal!”43

  This was a timely and important warning. Sadly, it fell flat. As Norm Ornstein writes, the Senate is now a “bastion of tribalism” in which “mass obstruction remain[s] the modus operandi.”44 The ranks of moderates, mavericks, and independents have thinned at an alarming rate, while partisan warriors on both sides have descended into legislative trench warfare.

  In this climate, finding sixty-seven votes to convict a president would be a Herculean task. There are more than thirty-four senators at any given point from deep blue or deep red states. And as compared to the Clinton or Nixon eras, the most partisan votes in the Senate today are considerably more partisan. Some of the president’s most committed political allies would therefore have to support his removal for an impeachment to succeed. This isn’t to say that nothing could sway them, especially if the president is deeply unpopular. But the force of evidence and argument necessary to overcome resistance in the Senate is at a historical zenith.

  3. Increased risk associated with impeachment decisions. In Chapter 3, we identified the most important risks of impeaching—and not impeaching—when the president is suspected of “high Crimes and Misdemeanors.” Although any serious impeachment decision is fraught with peril, the stakes of these political judgments have reached unnerving heights in recent years.

  That’s partly because legislative alternatives to impeachment are now particularly feeble. A steady expansion of executive authority has reduced Congress’s ability to restrain the president when he is determined to abuse the powers of his office. Further, intensified partisan animosity, the rise of ideological echo chambers, and a breakdown in legislative process make it less plausible that Congress could stand firm in superintending the White House. Finally, the reduction of politics to spectacle and hyperbole has weakened the relevance of honor, integrity, and shame as considerations that would lead a president to dread censure.

  The most unique feature of the modern era, however, is that impeachment decisions must now assign overriding significance to the threat posed by democratic decline. In our view, that is the single most important context for impeachment analysis in the twenty-first century. This may sound hyperbolic. But over the past decade, scholars who study failed democracies have sounded alarms in the United States. Indeed, the broken politics that we’ve described in this chapter include many well-recognized symptoms of an ailing democracy. And while those dysfunctions did not emerge overnight, they’ve worsened significantly under Trump. His open admiration for third-world strongmen is increasingly matched by rhetoric and conduct lifted straight from banana republics. In his first year alone, Trump infected the US government with additional signs of democratic decline. These include self-enrichment from public office; appointment of family members to high-level positions; claims that the press is an “enemy of the American people;” relentless efforts to establish favored news outlets as his personal equivalent of state TV; calls to imprison political opponents and critics; tacit support for armed extremists and private militias; assaults on the independent judiciary; and apparent comfort with hostile powers meddling in elections to his advantage.45

  In the US system of government, the powers of the presidency are vast. Wielded to their fullest, and deployed maliciously or recklessly, they can corrode the very fabric of democracy. As polarization, partisanship, and tribalism have weakened external checks on the executive branch, Americans have come to rely increasingly on the president’s good faith and self-restraint. That’s a precarious position for any democracy—especially since our nation’s warped politics also make it more likely that voters will favor populist demagogues who pander to their darkest instincts.

  The immediate danger isn’t a sudden declaration of martial law. Rather, it’s that the norms, institutions, and culture that support democracy will erode, allowing a president with autocratic tendencies to consolidate power. As analyst David Frum cautions, liberty in a “modern bureaucratic state” is threatened “not by diktat and violence, but by the slow, demoralizing process of corruption and deceit.”46 The nation’s descent into authoritarian governance may be invisible—or even welcome—to most voters. Democracies don’t fail overnight. Instead, they fade before our eyes, dying in halls of power and in the hearts of their citizens.

  Accordingly, decisions about whether to impeach must now account for the pressing threat of democratic decline. Like so many other considerations we’ve discussed in this book, that concern can cut both ways. Its significance in any particular case turns on a sensitive political judgment.

  In some circumstances, a desire to protect democracy may ultimately cut against promoting or pursuing impeachment. As we’ve seen, even a well-justified impeachment poses grave risks. The main long-term threat is that it turbocharges forces of dysfunction and despair in our democracy. The main short-term threat is that an embittered minority refuses to accept the result and uses unlawful means to resist a perceived coup. A cross-cutting threat is that the impeachment fails when it should succeed, leaving the country with a corrupt tyrant and his angry, vengeful supporters. All of those risks are now at a historical high point. The public’s capacity to build and maintain political consensus in favor of removal—and to absorb any damaging aftershocks—is open to serious doubt. This isn’t to say that a tyrannical president and his committed loyalists deserve a terrorist’s veto. But in assessing whether (and when) to impeach, we all must reckon with broader
risks to the democratic system we’re trying to save.

  Of course, those risks may ultimately cut in favor of impeachment. Allowing abuse, corruption, or betrayal in the White House is always a dangerous proposition. Amid democratic decline, however, deciding not to impeach for “high Crimes and Misdemeanors” is exceptionally risky. Now more than ever, we must defend our constitutional order and resist authoritarian drift. That means refusing to tolerate or normalize presidential conduct that chips away at the foundation of US democracy. Invoked successfully, the impeachment power can save us from tyranny, repudiate dangerous precedents, and re-establish norms essential to a free society. It can also remind future presidents that nobody is above the law. In contrast, if we sit on our hands, an abusive leader might accelerate and benefit from preexisting elements of democratic decline. We may eventually find that our politics are too broken and too divisive for impeachment—or any other power—to stop a president who threatens all we hold dear.

  Until 2017, discussions about lawfully removing the president began and ended with impeachment. Since Donald Trump took office, however, we’ve all been treated to a crash course in the Constitution’s latent and dormant powers. Many Americans have grown particularly interested in the Twenty-Fifth Amendment, which creates a procedure for benching the president when he is “unable to discharge the powers and duties of his office.” The idea of ousting Trump this way appeals to those who believe that he is mentally unsound. As they see things, it’s more important to depose an unhinged commander in chief than to agonize over which of his crazy deeds might also qualify as “high Crimes and Misdemeanors.”

  Calls to invoke the Twenty-Fifth Amendment are often laced with hints that this approach would be easier, savvier, or more clearly justified than invoking the impeachment power. It wouldn’t be. As compared to the Impeachment Clause, the Twenty-Fifth Amendment erects a far more daunting barrier against politically motivated efforts to end a presidency. And in the event of a genuine dispute, the Twenty-Fifth Amendment process could inflict significantly more damage on American democracy. Especially in our polarized partisan climate, the Twenty-Fifth Amendment could be legitimately employed only if the president were manifestly incapable—physically or mentally—of performing the core requirements of his job.