Impeachment- a Citizen's Guide

by Cass R Sunstein

  I do not mean to make too much of these suggestions. Again, the constitutional standard is the same. The largest point is that with just a few exceptions, the House of Representatives has shown immense respect for the standards established by the constitutional framework, even though the controversial role of the federal judiciary must have made it tempting, on many occasions, not to do so.

  chapter 7

  Twenty-One Cases

  Many first-year law students are surprised to see that in their early classes, most professors don’t lecture. Instead they offer an infuriating and seemingly endless stream of “hypotheticals”—specific problems, real or imagined, about legal problems. They try to elicit students’ judgments, and they use those judgments as the foundation for discussion.

  From one point of view, this way of thinking about law and public policy is pretty silly. If you put people on the spot in a classroom, they’ll consult their intuitions and tell you their immediate reactions. Should policy and law be based on intuitions and immediate reactions? The entire constitutional order can be seen as an emphatic answer: “NO!”

  Hamilton, Madison, and their colleagues made one truly original contribution to political thought, which was to reject the long-standing view, shared by some of history’s greatest thinkers (including Montesquieu himself), that republics should be small and homogenous. They suggested instead that a large republic, with diverse people, would be the best way to produce a deliberative democracy. In their conception of democracy, as Justice Louis Brandeis put it, “the deliberative forces should prevail over the arbitrary”—and deliberation would entail circumspection, not intuition. Theirs was a republic of reasons. They didn’t think that law and policy should result from people’s immediate reactions to a long series of hypothetical questions.

  At the same time, the approach in law school classrooms does have one big virtue: it avoids premature resort to abstractions, which can produce big trouble. The great British poet William Blake once scribbled in a margin, “To Generalize is to be an Idiot; To Particularize is the Alone Distinction of Merit.”1 To be sure, that’s itself a generalization, so in a sense, Blake’s claim is self-contradictory and self-defeating. But let’s not be fussy. Blake was right.

  On some issues, an excellent way to make progress is by offering an assortment of problems and asking how best to deal with them. Of course you can’t do that in the dark. Some kind of orienting framework is necessary to discipline the analysis. But with respect to impeachment, history provides us with a framework, under which the central question is whether we have an egregious abuse of official power.

  My strategy will be to begin with a set of easy cases, in which impeachment is obviously legitimate. From there I turn to cases that are also easy, but for the opposite reason: impeachment would be obviously unconstitutional, even if the American public wants it, and even if the president has done something terribly wrong. I conclude with a series of harder cases, where reasonable people can differ. In such cases, I suggest, an institutional resolution is not a terrible idea: Where the constitutional issue is reasonably debated, and where no resolution is clearly correct, We the People, acting through our elected representatives, get to decide.

  Easy Cases: Impeachable

  A president has admiration and sympathy for a foreign nation that wishes to do harm to the United States. While in office, he reveals classified information to leaders of that nation, with the clear intention of strengthening it and of weakening his own country.

  The president can be impeached. He may have committed treason. The Constitution offers a definition: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” We would need to do some work to know whether the president’s action fits within the technical definition, which would require interpretation of the words “enemies,” “adhering,” and “aid and comfort.” But whether or not it’s treason, it clearly counts as a high crime or misdemeanor.

  A president is overseeing the development of his budget, which will be submitted to Congress. Makers of electric cars promise him that if he supports a tax credit for their vehicles, they will put a lot of money into his personal bank account, either immediately or after he leaves office. He agrees.

  The president can be impeached. He has accepted a bribe in connection with his exercise of presidential authority.

  A president is seeking to obtain public support for his health reform plan. A prominent insurance company dislikes his plan. The president tells the head of the company: “If you support the plan, I will find a way to send some of my own money your way. Maybe not now, maybe not while I am president, but eventually. You won’t be sorry.”

  The president can be impeached. He has tried to bribe someone in connection with his exercise of presidential authority.

  We could complicate this case by reimagining it as one of deal-making, involving not the president’s personal funds, but a more informal kind of you-scratch-my-back-and-I’ll-scratch-yours. Deal-making is hardly impeachable. A president is entitled to tell the head of a company that if it supports health care reform, he will not proceed with some other plan that the company dislikes. That is not bribery in the constitutional sense. But some deals are out of bounds: if a president tells a company that if it supports his plan, he will make sure that it receives a government contract (whether or not it deserves it), we seem to have a case of bribery—and if so, the president can be impeached.

  (a) A president orders one of his subordinates to murder a political opponent, because he is a political opponent. (b) A president orders one of his subordinates to beat up a political opponent, because he is a political opponent. (c) A president orders the Internal Revenue Service to investigate a political opponent, because he is a political opponent.

  In all of these cases, the president can be impeached. In (a) and (b), he has almost certainly committed a crime, and a high one, but whether or not that is so, he has committed a misdemeanor within the meaning of the Constitution: the use of physical force against a political opponent is an egregious abuse of presidential power. The same conclusion is appropriate for (c) if we stipulate that the president has no basis for thinking that the opponent has violated the tax laws. If so, we have a misdemeanor in the constitutional sense.

  To make things more complicated, suppose that the political opponent has, in fact, violated tax laws, and the president is aware of that—but his desire to punish a political opponent is really what motivates him to exercise what he sees as his authority over the Internal Revenue Service. That’s a bit trickier, but in the end, it’s not all that hard. It’s a misdemeanor, in the constitutional sense, for the president to use his authority to single out political opponents for law enforcement activity. Use of official power to punish political opponents is near the core of the category of impeachable offenses.

  A president decides to spend six months in London. He explains that he adores London, and the history, and the shopping, and he needs a break. There is no reason to think that he is disloyal to the United States. He simply needs a break. He adds that he will discharge the duties of his office “when he has time,” and he expects to have time.

  The president can be impeached. He has committed no crime, but he is neglecting his constitutional duties in a patently egregious way. A president is allowed to have plenty of golf weekends and even some vacations. But he cannot decide that he needs six months in a foreign country, even if he asserts that while there, he will do what he needs to do as president.

  A president likes police officers—a lot. He believes that they have been unfairly treated. He announces that if any police officer is accused of murder or assault, he will exercise his pardon power, and pardon that officer in full.

  The president can be impeached. He has essentially said that he will authorize murder and ass
ault. He is exercising his official authority in a way that promotes grotesque misconduct. He may or may not have committed a crime, but that doesn’t matter. He has abused distinctly presidential powers in an egregious manner.

  A president is elected as a result of a secret plan with a nation that is unfriendly to the United States. As part of that plan, the president has worked closely, and personally, with leaders of that nation to disseminate false information about his political opponent. There is no quid pro quo, but the president’s election has unquestionably been facilitated by an explicit plan.

  The president can be impeached. To be sure, the relevant action occurred before the president assumed office. On the basis of the constitutional text and context, it might be tempting to argue that impeachable offenses are limited to those that occur while the president is in office. But the debates at the Convention suggest that if the president procures office by objectionable means, impeachment is available. Indeed, the debates suggest that cases of this kind are defining examples of what impeachment is for. Recall George Mason’s words: “Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”

  This view has logic on its side. The Constitution aspires to governance by We the People. If the president obtains office through illicit means—and worse, by collaborating with a foreign country—self-governance has been compromised. Impeachment is available.

  A president uses the FBI and the CIA in order to obtain incriminating evidence about, and in an attempt to punish, political adversaries. He orders them to engage in various forms of surveillance, and he plans to use whatever he learns in order to embarrass those adversaries through the press, and possibly to initiate criminal proceedings.

  The president is impeachable. Whether or not such conduct involves a technical violation of the criminal law, it amounts to an impeachable offense, in the form of an egregious abuse of the power of the office. Recall the ratification debates in Massachusetts, which pointed to violations of liberties as impeachable offenses. In the problem at hand, we might have a technical violation of the First and Fourth Amendments. Even if we don’t, we have a violation of the most basic democratic principles.

  During a war or a domestic crisis, a president fails to perform the basic tasks of his job, not because he makes choices with which many people disagree, but because he has essentially defaulted. The default may be a result of stress, drunkenness, mental illness, boredom, physical problems, or sheer laziness.

  The president is impeachable. Here, too, there is no crime, but he has committed a misdemeanor and can be removed from office. Recall that Madison pointed to “neglect of duty” as a basis for impeachment, and here we have an egregious neglect of duty. True, we have to be careful with the whole idea, lest political disagreement, or public disappointment or outrage, be transformed into a claim of impeachable neglect. And true, this case requires an amendment of our governing principle, which reads high crimes and misdemeanors as egregious abuses of public power. That principle captures the core of the concept, but not all of it. A failure to do one’s job is a misdemeanor too.

  Easy Cases: Not Impeachable

  A president issues an executive order requiring his Environmental Protection Agency to issue certain regulations under the Clean Air Act. In the view of most informed observers, the regulations are in clear violation of the Clean Air Act and therefore unlawful. True, some people believe that the regulations are lawful, but they are in a small minority. The Supreme Court unanimously strikes down the regulations that the president ordered.

  The president cannot be impeached. Every president—Reagan and Clinton, Bush and Obama, Roosevelt and Truman and Eisenhower—has suffered and will suffer significant losses in court. The president is perfectly entitled to act in a way that defies the majority view among legal specialists. So long as a legal defense can be mounted in good faith, there is no plausible basis for impeachment, even if the Supreme Court unanimously agrees that the president is wrong. The reason is that a president who acts in accordance with a good-faith legal argument is not engaging in an egregious abuse of presidential authority, even if he is wrong.

  In the aftermath of a terrorist attack, a president issues a series of executive orders designed to combat terrorism. Some of those orders strike many Americans as draconian, severe, and “un-American.” One of them imposes aggressive new security restrictions at airports, which include intrusive personal questions to people who have been “profiled” as potentially suspicious. Another order authorizes what some people consider to be torture (for example, waterboarding). Several of them are invalidated in court on constitutional grounds. In the face of those rulings, the president’s opponents argue that he has acted unconstitutionally and violated his oath of office, and that he has ordered his subordinates to commit crimes.2 His opponents add that the president is constitutionally obliged to “take care that the laws be faithfully executed”—and he has not done that.

  The president cannot be impeached. This case is harder than the last case, and perhaps it cannot fairly be counted as easy, because it involves a series of unlawful actions rather than merely one, and also human rights violations. But it is not all that hard, at least if the president has a good-faith argument that his orders are lawful. It is not an impeachable offense to reach a series of legal conclusions that both courts and international law reject. Violation of the oath of office (the claim of the first article proposed during the Clinton impeachment) is a red herring—a form of foolishness. The Constitution does not make any such violation a reason for impeachment. It requires a high crime or misdemeanor.

  To be sure, we can revise this case in a way that moves it into the realm of the difficult or even the obviously impeachable. If the draconian measures reach a certain level of severity, such that a good-faith argument in their defense is unavailable, we have a misdemeanor, on the same theory invoked in Massachusetts during the ratification debates. The case would be hard (I think) if (1) the measures are very extreme by any mesure (involving, say, unambiguous torture and gross violations of civil rights), but (2) the president believes, wrongly but in good faith and with a plausible argument (under existing law), that he has legal authorization to order them. In such a case, it makes sense to say that the impeachment clause does not give authoritative guidance, and so We the People, acting through the House and Senate, can do as we think best.

  Before his election, a president cheated on his taxes. He failed to report significant income. He has committed a serious crime.

  The president cannot be impeached. He has not abused his official authority in any way. It follows that however egregious his actions might have been before becoming president, the commander-in-chief cannot be impeached for those actions—with just one exception, captured in case 7 above.

  While in office, a president cheats on his taxes by failing to report significant income. In doing so, he commits a serious crime.

  The president cannot be impeached. He did not abuse his official authority in any way. It is true that he committed a crime, but because there was no abuse of his authority, impeachment is unavailable. (See the discussion of the Nixon case in chapter 6.) He can be prosecuted—after he leaves office.

  A president fires members of the Federal Communications Commission, the Federal Trade Commission, and the Federal Reserve Board. Those members were appointed by his predecessor. They are in the midst of their five-year terms. The law protects them from discharge unless they have engaged in “malfeasance, neglect of duty, or inefficiency in office.”

  The president does not contend that the members have engaged in any of those things. Instead he argues that under the Constitution, the executive branch is “unitary,” and so he is allowed to fire anyone whose job is to execute the law. In other words, he thinks that the st
atutes intrude on his constitutional authority—and so he ignores the intrusion. The Supreme Court has rejected the president’s view of the Constitution, by ruling that Congress can make these agencies independent of the president’s control, but he wants to test the legal waters again.

  The president is not impeachable. He has acted on the basis of a good-faith understanding of his constitutional powers. Even if he is wrong, he has not committed a high crime or misdemeanor. This case is a cartoon version of the principal grounds for impeaching Andrew Johnson. As we have seen, those grounds were illegitimate; the impeachment was unconstitutional. This case is a bit stronger for impeachment than the Johnson case, because the president is almost certainly wrong on the law. (Recall that Johnson was right.) But so long as he has a good-faith argument, impeachment is off the table. We do not have a high crime or misdemeanor. Once more: it is not a misdemeanor for a president to act on the basis of a reasonable belief that he had the authority to act as he did.

  Harder Cases

  In the context of a war effort, a president repeatedly deceives the American people. When publicly justifying the decision to go to war, he misstates what the evidence is, in an effort to suggest that if he did nothing, the American people would be at serious risk. The misstatement is at least reckless and probably willful. During the prolonged hostilities, the president does not tell the truth about the progress of the war. He is far too optimistic about what is happening on the ground—again, in a way that is at least reckless and probably willful. He makes statements about the enemy and its conduct that are inconsistent with the facts.