To End a Presidency

by Laurence Tribe

  This connection between impeachment and democracy runs both ways. As we’ve seen time and again, impeachment depends on the very same democracy that it exists to protect. The power to end a presidency will not keep us safe if American politics are so broken that the public cannot recognize and rally against a tyrant.

  These days, however, our political system is sick and getting sicker. Polarization and partisanship are on the upswing, while extremists on all sides grow ever bolder. Younger Americans have started losing faith in our basic plan of government. And the last few years have offered a continuing lesson in the fragility of rules and norms long seen as essential to preserving democracy. These trends evoke the classic lines from W.B. Yeats: “Things fall apart; the centre cannot hold; mere anarchy is loosed upon the world.”72 Ultimately, our cycle of political dysfunction may well impel us toward tragedy. The same decline and dysfunction that beget a president who threatens democracy itself might also make impeaching that president all but impossible.

  To avoid this dark trajectory, we must abandon fantasies that the impeachment power will swoop in and save us from destruction. It can’t and it won’t. When our democracy is threatened from within, we must save it ourselves. Maybe impeachment should play a role in that process; maybe it will only make things worse. Either way, reversing the rot in our political system will require creative and heroic efforts throughout American life. And at the heart of those efforts will be the struggle to transcend our deepest divisions in search of common purpose and mutual understanding. We must draw together in defense of a constitutional system that binds our destinies and protects our freedom. As Abraham Lincoln once reminded a nation far more divided than ours, “We are not enemies, but friends. We must not be enemies.”73

  Transcending forces of decay, disinformation, and disunion will not be easy. This is the great national calling of our time—the North Star that must guide decisions about ending or enduring disastrous presidencies. There is no quick fix for the challenges we face. They are surmountable only if each of us resolves anew that America and democracy are well worth fighting for.

  ACKNOWLEDGMENTS

  Writing about impeachment is an exhilarating and maddening experience—especially in the Age of Trump. We could not have completed this book, or maintained perspective on its subject, without extraordinary support from our friends and families.

  Where else to begin than with our partners? We thank Elizabeth Westling (Larry) and Hillel Smith (Joshua) for their love, insight, editorial guidance, and patience. Especially their patience. They stood by us through writer’s block and blown deadlines, through fried hard drives and personal tragedies. When impeachment was all we could think, speak, or dream about, they did a valiant job of feigning interest. And when we worked around the clock, deep into caffeinated nights, they sacrificed with us to make this book possible. We are lucky, indeed, to have found such marvelous and talented partners in crime.

  We must also thank our families. It’s impossible to overstate how much their support has meant to us, both in writing this book and in so many other ways. We owe them more than we can express in words.

  Just days before we completed this manuscript, Larry suddenly and unexpectedly lost his only sibling, Al Tribe (known to Larry and a few others as “Shurka”). Shurka was a constant source of strength and support. When he and Larry last spoke, Shurka emphasized that he looked forward to reading this book. No one could ask for a better brother.

  Of course, a book like this one required extensive research into law, history, and politics. In performing that work, we were aided by a stellar crew of undergraduates and law students. For their excellent work, we are grateful to Nicole Antoine, Hunter Fortney, Zeenia Framroze, Viviana Hanley, Andrew Jing, Andrew Sacks, Crispin Smith, Maile Yeats-Rowe, Ashim Vaish, and Andrew Yodis. We extend special thanks to Quent Fox, Daniel Ottaunick, Derek Reinbold, and Lark Turner, each of whom made particularly substantial contributions and helped us refine our view of impeachment. In addition, we received invaluable feedback on the manuscript from Travis Crum, Michael Dorf, Aaron Kotler, Leah Litman, Aaron Marcus, Erin Monju, Zachary Price, and Isaac Saidal-Goley. They made this book better. Needless to say, we take sole responsibility for any errors or omissions in the manuscript—though we hope they are few and insignificant!

  As any author learns early on, writing a book is a team effort. We were privileged to work with a remarkable team at Basic Books. In particular, we had the good fortune of collaborating with a gifted editor, Brian Distelberg. Brian and his colleagues—including Lara Heimert, Betsy DeJesu, Isadora Johnson, Allie Finkel, Connie Capone, and Michelle Welsh-Horst—improved our prose and sharpened our vision. We also thank our agents, Ike Williams and Katherine Flynn of Kneerim & Williams, for their expert guidance.

  Working on this book required much of our attention in late 2017. We are therefore grateful to our colleagues for their support, encouragement, and flexibility. Larry thanks Harvard Law School, and Joshua thanks Gupta Wessler PLLC and Kaplan & Company LLP. To End a Presidency reflects our views alone—not those of our institutions and employers—but we have learned much from our thoughtful, dedicated peers.

  Finally, we thank each other. Writing a book—and doing so while based in different cities—could tax even the strongest of friendships. That’s especially true when the authors don’t see eye-to-eye on every issue. Instead, this process has been fun and collaborative. We’ve learned from each other, and we’re grateful for that.

  Laurence Tribe is the Carl M. Loeb University Professor and a professor of constitutional law at Harvard University. One of America’s foremost constitutional scholars, he is the coauthor of Uncertain Justice (with Joshua Matz) and numerous other books and articles. He lives in Brookline, Massachusetts.

  Joshua Matz, a graduate of Harvard Law School and a constitutional lawyer, is the publisher of Take Care, which provides legal analysis of the Trump presidency. He lives in Washington, DC.

  ADVANCE PRAISE FOR TO END A PRESIDENCY

  “This is a spectacular book. It is essential, riveting reading for anyone trying to make sense of the impeachment question as citizens—or as members of Congress. Laurence Tribe and Joshua Matz have a special knack for logical and historical clarity, and To End a Presidency left me not only knowing more, but also thinking better.”

  Zephyr Teachout, author of Corruption in America

  —“This is the definitive book on how to end a national nightmare. No dubious constitutional theories, just real law, real procedures, and real ideas for moving forward. Where Special Counsel Robert Mueller leaves off this book will pick up. The real deal.”

  —Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School, and chief ethics counsel for President George W. Bush

  SELECTED FURTHER READING

  The Trump presidency has prompted a flood of writing about impeachment. As is evident from our endnotes, we’ve benefited in many ways from topical insights offered since the 2016 election. But we’ve also learned a great deal from scholarly works on the history and theory of impeachment. Here we identify some of the books and articles that most heavily influenced our approach. We recommend them to those brave readers who are eager to fall deeper down this rabbit hole.

  BOOKS

  Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2006.

  Baumgartner, Jody C., and Naoko Kada, eds. Checking Executive Power: Presidential Impeachment in Comparative Perspective. Westport: Praeger, 2003.

  Berger, Raoul. Impeachment: The Constitutional Problems. Cambridge: Harvard University Press, 1973.

  Black, Charles L. Impeachment: A Handbook. New Haven: Yale University Press, 1998.

  Chafetz, Josh. Congress’s Constitution: Legislative Authority and the Separation of Powers. New Haven: Yale University Press, 2017.

  Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. Chicago: University of
Chicago Press, 2000.

  Hoffer, Peter Charles, and N. E. H. Hull. Impeachment in America, 1635–1805. New Haven: Yale University Press, 1984.

  Klarman, Michael. The Framers’ Coup: The Making of the United States Constitution. New York: Oxford University Press, 2016.

  Kyvig, David E. The Age of Impeachment: American Constitutional Culture since 1960. Lawrence: University Press of Kansas, 2008.

  Labovitz, John. Presidential Impeachment. New Haven: Yale University Press, 1978.

  Posner, Richard A. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge: Harvard University Press, 1999.

  Sunstein, Cass R. Impeachment: A Citizens’ Guide. Princeton: Princeton University Press, 2017.

  Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge: Harvard University Press, 1995.

  SCHOLARLY ARTICLES

  Amar, Akhil Reed. “On Impeaching Presidents.” Hofstra Law Review 28, no. 2 (1999): 291–341.

  Chafetz, Josh. “Impeachment and Assassination.” Minnesota Law Review 95 (2010): 347–423.

  Gerhardt, Michael J. “The Lessons of Impeachment History.” George Washington Law Review 67 (1999): 603–625.

  . “The Special Constitutional Structure of the Federal Impeachment Process.” Law and Contemporary Problems 63 (Winter/Spring 2000): 245–256.

  Katyal, Neal Kumar. “Impeachment as Congressional Constitutional Interpretation.” Law and Contemporary Problems 63 (Winter/Spring 2000): 169–192.

  Klarman, Michael J. “Constitutional Fetishism and the Clinton Impeachment Debate.” Virginia Law Review 85, no. 4 (May 1999): 631–659.

  O’Sullivan, Julie R. “The Interaction between Impeachment and the Independent Counsel Statute.” Georgetown Law Journal 86, no. 6 (1998): 2193–2266.

  Rakove, Jack N. “Statement on the Background and History of Impeachment.” George Washington Law Review 67 (1999): 682–692.

  In addition, Larry’s treatise—American Constitutional Law, 3rd ed., University Treatise Series (Foundation Press), 2000—contains a substantial discussion of impeachment at pages 152 to 202.

  NOTES

  PREFACE

  1. Ezra Klein, “The Case for Normalizing Impeachment,” Vox, November 30, 2017.

  2. Cass Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton: Princeton University Press, 2017), 78.

  CHAPTER 1: WHY IMPEACHMENT?

  1. Max Farrand, ed., “July 20,” in The Records of the Federal Convention of 1787, rev. ed., vol. 2 (New Haven: Yale University Press, 1966), 65.

  2. Raoul Berger, Impeachment: The Constitutional Problems (Cambridge: Harvard University Press, 1973), 1.

  3. Peter Charles Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 9.

  4. Farrand, “July 20,” in The Records of the Federal Convention of 1787, vol. 2, 61.

  5. Farrand, “July 18,” in The Records of the Federal Convention of 1787, vol. 2, 42.

  6. Farrand, “July 20,” in The Records of the Federal Convention of 1787, vol. 2, 65.

  7. Ibid., 64.

  8. Ibid., 65–66.

  9. Ibid., 67.

  10. Ibid., 65.

  11. Ibid., 65–67.

  12. Ibid., 67.

  13. Ibid., 67–68.

  14. Farrand, “June 2,” in The Records of the Federal Convention of 1787, vol. 1, 86.

  15. Alexander Hamilton, Federalist No. 69, in The Federalist Papers, ed. Clinton Rossiter (1961), 444–445.

  16. Farrand, “July 20,” in The Records of the Federal Convention of 1787, vol. 2, 68.

  17. Farrand, “July 24,” in The Records of the Federal Convention of 1787, vol. 2, 103.

  18. Farrand, “July 20,” in The Records of the Federal Convention of 1787, vol. 2, 66.

  19. Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (New York: Oxford University Press, 2016), 237.

  20. Farrand, “July 20,” in The Records of the Federal Convention of 1787, vol. 2, 66.

  21. Free Enter. Club v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500 (2010).

  22. Alexis de Tocqueville, Democracy in America, vol. 1 (Boston: John Allyn, 1882).

  23. Ibid., 139.

  24. Ibid., 136.

  25. Michael Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 2000), 4.

  26. de Tocqueville, Democracy in America, vol. 1, 135.

  27. Joseph Story, Commentaries on the Constitution of the United States, § 785 (Boston: Little, Brown, and Company, 1873), 554.

  28. “Letter from Joseph Story to Francis Lieber” (May 9, 1840), in Life and Letters of Joseph Story, Associate Justice of the Supreme Court of the United States and Dane Professor of Law at Harvard University, vol. 2, ed. William W. Story (London: J. Chapman, 1851), 330.

  29. de Tocqueville, Democracy in America, vol. 1, 138.

  30. Ibid., 139.

  31. Ibid., 137.

  32. Ibid., 136

  33. Ibid., 137

  34. Ibid., 139.

  35. Ibid.

  36. Free Enterprise Fund, 561 U.S. at 522 (Breyer, dissenting).

  37. Stan Lee and Steve Ditko, “Spider-Man,” in Amazing Fantasy 1, no. 15 (New York: Marvel Comics, 1962), 13.

  38. “Letter from Henry Clay to J. J. Crittenden” (July 16, 1842), in The Life of John J. Crittenden, with Selections from His Correspondence and Speeches, vol. 1, ed. Chapman Coleman (Philadelphia: J. B. Lippincott & Co., 1873), 188–189.

  39. “Letter from John Tyler to Robert McCandlish” (July 10, 1842), quoted in Gary May, John Tyler (New York: Henry Holt & Co., 2008), 80.

  40. Michael Gerhardt, The Forgotten Presidents: Their Untold Constitutional Legacy (Oxford: Oxford University Press, 2013), 58.

  41. William Shakespeare, Julius Caesar, act 3, sc. 2.

  CHAPTER 2: IMPEACHABLE OFFENSES

  1. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), 432.

  2. Ibid., 433.

  3. Stuart Taylor Jr., “The ‘High Crimes’ Riddle,” Washington Post, September 21, 1998.

  4. Ian Schwartz, “Maxine Waters: Impeachment Is Whatever Congress Says It Is, No Law That Dictates Impeachment,” Real Clear Politics, September 21, 2017.

  5. Nixon v. United States, 506 U.S. 224 (1993).

  6. Ga. Const. art. III, § 7, para. 1.

  7. Pa. Const. art. VI, § 6; N.J. Const. art. VII, § 3, para. 1; Mass. Const. pt. 2, ch. I, § 2, art. VIII.

  8. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

  9. Klein, “The Case for Normalizing Impeachment.”

  10. Carlton F.W. Larson, “The Five Myths About Treason,” Washington Post, February 17, 2017.

  11. McDonnell v. United States, 136 S. Ct. 2355, 2372 (2016).

  12. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., vol. 2 (New Haven: Yale University Press, 1966), 68.

  13. Akhil Amar, The Constitution Today: Timeless Lessons for the Issues of Our Era (New York: Basic Books, 2016), 302.

  14. Farrand, “July 26,” in The Records of the Federal Convention of 1787, vol. 2, 121.

  15. Farrand, The Records of the Federal Convention of 1787, 550.

  16. 1 Annals of Cong. 498 (1789).

  17. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), 199.

  18. Quoted in Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (New York: Simon & Schuster, 2017), 328.

  19. Farrand, The Records of the Federal Convention of 1787, 550.

  20. Charles L. Black Jr., Impeachment: A Handbook (New Haven: Yale University Press, 1998), 31–32.

  21. Ibid., 32–33.

  22. Ron Chernow, Alexander Hamilton (New York: Penguin Books, 2005
), 710.

  23. Charles Biddle, Autobiography of Charles Biddle, Vice-President of the Supreme Executive Council of Pennsylvania (Philadelphia: E. Claxton & Co., 1883), 308.

  24. William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: William Morrow & Co., 1992), 18.

  25. Farrand, The Records of the Federal Convention of 1787, 550.

  26. Quoted by Adam Cohen, “The Founders Had an Idea for Handling Alberto Gonzales,” New York Times, August 19, 2007.

  27. Alexander Hamilton, Federalist No. 65, in The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classic, 1961), 396.

  28. James Wilson, Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 736.

  29. William J. Stuntz, The Collapse of American Criminal Justice (Cambridge: Harvard University Press, 2011), 99.

  30. Ibid.

  31. Joseph Story, Commentaries on the Constitution of the United States, 3rd ed. (Boston: Little, Brown and Company, 1858), 553.

  32. Ibid., 553–554.

  33. Black, Impeachment, 33.

  34. Akhil Amar, America’s Constitution: A Biography (New York: Random House, 2006), 200.

  35. Black, Impeachment, 36.

  36. Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

  37. Jane Chong, “To Impeach a President: Applying the Authoritative Guide from Charles Black,” Lawfare, July 20, 2017.

  38. Annette Gordon-Reed, Andrew Johnson: The American Presidents Series, the 17th President (New York: Times Books, 2011), 12.

  39. Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: W.W. Norton and Company, 1999), 39.

  40. Orin S. Kerr, “The Mosaic Theory of the Fourth Amendment,” Michigan Law Review 111 (2012): 311.