Impeachment- a Citizen's Guide

by Cass R Sunstein

  Can the president be indicted while in office?

  I don’t think so.

  This is also an unresolved question, at least if the indictment is brought on the basis of unofficial acts. (Nixon v. Fitzgerald is probably best read to settle the issue, and to answer “no,” with respect to official acts.) Suppose that a prosecutor seeks an indictment but acknowledges that the president cannot be tried while in office. In other words, the prosecutor wants to get an indictment in place, but urges that the proceedings should be stayed during the time of the presidency.

  On the one hand, it could be argued that nothing in the impeachment provisions forbids an indictment itself, and that so long as the president is not subject to a criminal trial, he can certainly do his job. In support of that argument, the prosecutor could contend that he is not speaking of impeachable offenses, so impeachment cannot be the exclusive remedy. On the other hand, the text might be read to suggest that impeachment is the constitutionally specified way to “indict” a president who is in office—and that it excludes criminal indictments. And while such an indictment is far less of an intrusion than an actual trial, it is not easily ignored.

  Though reasonable people can differ, my conclusion is that the president cannot be indicted while in office. (We’re getting pretty technical here.)

  Can a president be prosecuted after leaving office, for crimes committed either before becoming president or while serving as president?

  Let’s take this question in three different ways. First: If the president is impeached and removed for criminal activity, can he be prosecuted for the crimes that led to his removal? Absolutely. The text of the impeachment provision makes that unmistakably clear.

  Second: Can a former president be prosecuted for criminal actions in which he engaged outside of the context of his official duties? Absolutely. Nothing in the Constitution immunizes a former president from prosecution for income tax fraud or unlawful drug use.

  Third: Can a former president be prosecuted for criminal actions in which he engaged as part of his official duties? It’s not clear, but maybe not. As we have seen, Nixon v. Fitzgerald creates a rule of absolute immunity from civil lawsuits for actions undertaken as part of a president’s official duties, and it may follow that if official duties really are involved, a former president enjoys absolute immunity from criminal prosecution as well. (You might not love that conclusion—I am not sure that I do—but there we are.)

  Can the president pardon himself?

  Probably not. What the heck, let’s go for broke: no.

  The Constitution says, “The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” You could easily read that provision to say that the president can pardon anyone for anything (except in impeachment cases)—and that would allow self-pardons. That’s the theory to beat.

  One qualification to the theory is that, if the president exercises the pardon power in certain ways, he might be impeachable for that very reason. The president could be impeached if he said that he would pardon anyone accused or convicted of rape. And if a president is under investigation for serious wrongdoing and pardons himself, as a way of eliminating any risk of prosecution, there is a good argument that he has committed a misdemeanor in the constitutional sense. That would seem to be an abuse of power.

  But that doesn’t answer the question. The best argument against self-pardons would emphasize the old maxim that “no one can be judge in his own cause,” and add that if a president is pardoning himself, he’s violating that maxim. Surely—you might insist—the drafters and ratifiers of the Constitution, deeply hostile to the whole idea of a king, could not have wanted to allow the president to place himself above justice. True, the pardon clause seems to give the president unlimited authority (outside of impeachment cases), but in view of the background and the context, it should not be read to allow him to insulate himself from the force of the criminal law.

  Sounds right to me.

  With respect to impeachment, what should contemporary Americans be worried about?

  Two things.

  The first is that a combination of extreme partisanship, rapid spread of false information (especially online), and various behavioral biases will result in unjustified, harmful, and destabilizing efforts to impeach the president. The problem of fake news is certainly relevant here.

  Social scientists speak of “group polarization,” which means that when like-minded people get together, they often go to extremes. Social scientists also speak of “informational cascades,” which occur when information, even if false, quickly spreads from one person to another, with the result that numerous people end up believing something, not because they have independent reason to think that it is true, but because other people seem to believe it. Because of “confirmation bias,” people are inclined to believe things that fit with what they already believe or want to believe. That means that people can get pretty charged up even if the facts, which would calm them down, are freely available.

  Group polarization, informational cascades, and confirmation bias all played big roles in the Nixon and Clinton impeachments. We could easily imagine wildly unjustified and highly destabilizing impeachments, rooted in those mechanisms, whenever the presidency is held by someone from a political party other than that which holds the House and the Senate.

  But I think that we shouldn’t worry about that too much, thanks to the Constitution, and to the fact that we live in a free society. Because the president won an election (after all), because his own party is likely to support him (unless he has done something quite terrible), because he has so many ways to defend himself in public, because the impeachment process is so difficult, and because conviction is even more difficult, we have plenty of safeguards against unjustified efforts to get rid of the commander-in-chief.

  The second thing to worry about is the failure to use the impeachment mechanism in circumstances in which it really is justified. Imagine that the president systematically overreaches in his use of executive authority, paying no attention to the law and making a mockery of the system of separation of powers. Or imagine that he takes steps to violate civil rights and civil liberties, without anything like a good-faith argument that he was entitled to do that. In extreme cases, would We the People start to consider impeachment in a serious way?

  Maybe not. The constitutional safeguards are one reason. Another is party loyalty. History suggests that Republicans will be exceedingly reluctant to abandon a Republican president, and Democrats are no different. That means that impeachment is highly unlikely whenever the president’s party controls the House, and that conviction is essentially impossible unless the country is nearly unified against its leader. If a president systematically overreaches in his use of executive authority, or puts civil rights and civil liberties seriously at risk, he is likely to have, or to be able to get, the backing of a lot of Americans—at the very least, a big chunk of the electorate. Will We the People end up doing anything in response?

  I don’t know. That’s worth worrying about.

  chapter 10

  Keeping the Republic

  When I was growing up in Waban, Massachusetts, my family celebrated four holidays: Christmas, Easter, Thankgiving, and the Fourth of July. For a child, Christmas and Easter were the most fun. But even for a child, Thanksgiving and the Fourth of July were the most meaningful.

  On Thanksgiving, my mother would go around the dinner table, asking each of us what we were most thankful for. I didn’t love that, because I suspected that we were supposed to cry out, “Our parents!” But my mother’s question got under my skin, and in a good way. Behavioral scientists report that if you think about what you’re grateful for, you’ll feel happier and more peaceful. My mother knew what she was doing.

  But the Thanksgiving holiday was mostly about country, not family. When I was very young, my mot
her told me about the Pilgrims, who celebrated Thanksgiving. In her account, the Pilgrims came to our shores long before there even was a United States. They had some kind of celebratory dinner, in Massachusetts no less, in which they expressed their gratitude for being where they were, and for the food that had been placed before them. Her account was essentially right. The first Thanksgiving, as it is called, was celebrated by the Mayflower Pilgrims in 1621, though there were forerunners in the very young American colonies.

  In school—first grade, I think—it was imprinted on us that during the Revolutionary War, Americans celebrated Thanksgiving too. In 1777, the Continental Congress issued the first National Proclamation of Thanksgiving. On October 3, 1789, President George Washington established the first Thanksgiving Day for the nation under its new Constitution. I didn’t know that level of detail, but I did know something important and joyful about Washington: “First in peace, first in war, and first in the hearts of his countrymen!”1

  For me, the Fourth of July was the perfect family bookend to Thanksgiving Day. My father, a Naval lieutenant, fought in the Philippines during World War II. The fighting was brutal and he was nearly killed—twice. (His most harrowing tale: he was driving a car though a remote area when he spotted a Japanese sniper, taking direct aim at him. He kneeled down as he drove. Unable to see where he was going, he managed not to get hit by several shots fired at him.) He wasn’t sentimental, but the nation’s birthday meant everything to him. At baseball games, he always stood up for the national anthem, and when he did so, he put his hand over his heart.

  But it was my mother who told me about Thomas Jefferson and some “declaration” that he had written. Thankfully, the holiday was mostly about ice cream and tennis, not dead people and declarations. But on the day itself, that old text was everywhere, and it seemed like a prayer: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

  If you read the text today, you might be surprised. A lot of it consists of a list of grievances against “the present King of Great Britain,” whose history is one “of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these states.” It’s like a criminal indictment, or articles of impeachment. A flavor:

  “He has refused his Assent to Laws, the most wholesome and necessary for the public good.”

  “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

  “He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither; and raising the conditions of new Appropriations of Lands.”

  The authors of the Declaration did not like monarchs: “A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.” They closed with a pledge: “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

  They acted in accordance with that pledge. Nine of the fifty-six signatories died in battle. Two lost their sons. The homes of at least a dozen were pillaged and burned.

  On Thanksgiving, and every other day, Americans have much to be thankful for. That star-spangled banner yet waves. Before long, the Declaration will celebrate its 250th birthday. All over the world, the nation has been a beacon of liberty. America’s citizens have had no tyrants, in part because of the constitutional design. The Constitution is still in force. It has been amended repeatedly, almost always for the better, and so it’s even greater than it was. But the essential framework, and most of the choices of Madison, Hamilton, and their colleagues remain unaltered.

  It’s true that we could tell plenty of tales of oppression, cruelty, and betrayal. It took a Civil War to abolish slavery. Until 1920, women could be forbidden from voting. Until 1954, the Constitution allowed states to segregate people by race. Freedom of speech did not flower until the 1960s. But many of the hardest-won victories can be understood as a product of the American Revolution itself—a revolution that put a principle of the equal dignity of human beings at the center of national aspirations.

  When the Revolution overthrew a king, and when the Constitution prohibited titles of nobility, they reflected, and unleashed, a set of commitments that continues to ignite fires. Defending the civil rights movement, Martin Luther King, Jr., insisted, “If we are wrong, the Constitution of the United States is wrong.”2 More fires are to come. As John Dewey put it, “The United States are not yet made; they are not a finished fact to be categorically assessed.”3

  The power of impeachment provides a unique window onto the American republic. It helps to define American exceptionalism. In the eighteenth century or the twenty-first, no large nation can flourish without some kind of executive authority. For Hamilton’s reasons, that authority needs to be powerful. At the same time, the executive is, by far, the most dangerous of the three branches, because it can do so much, for better or for ill, in such a short time.4 As the framing generation saw it, there are inextricable links among the creation of a powerful presidency, the four-year term, electoral control, and the power of impeachment. You can’t allow the first without the latter three.

  In an echo of Franklin’s plea, Supreme Court Justice Louis Brandeis, attempting to vindicate the freedom of speech, warned that “the greatest menace to freedom is an inert people.”5 If the American constitutional system is working well, or at least well enough, We the People can cast our votes and love our families and live our lives. We do not need to focus on the impeachment mechanism. But if we are going to keep our republic, we do need to know about it. It’s our fail-safe, our shield, our sword—our ultimate weapon for self-defense.

  And it’s a lot more than that. It’s a symbol and a reminder of who is really in charge, and of where sovereignty resides. As much as any provision of our founding document, it announces that Americans are citizens, not subjects. It connects each and every citizen—wherever your parents, or you, were born—to Concord’s embattled farmers and to those difficult, inspired days in the middle and late 1770s, when republicanism was literally on the march. Whenever Americans strike a blow against some form of tyranny, large or small, we are honoring our nation’s highest ideals, and those who were willing to live and die for them.

  AFTERWORD

  This book was inspired by a day: April 19, 1775.

  That was the day of the Battles of Lexington and Concord, which marked the beginning of the Revolutionary War. At dawn, seven hundred British troops arrived in Lexington, where they encountered seventy-seven militiamen gathered on the town green. A British major called out, “Throw down your arms! Ye villains, ye rebels!” The British promptly routed the militiamen, killing eight. But when they came to Concord, things didn’t go so well for them. On North Bridge, Major John Buttrick, leading a group of “embattled farmers,” gave that fateful order: “Fire, fellow soldiers, for God’s sake, fire!” The war was on.

  April 19, 1775, was the culmination of decades of republican thought, opposing the whole idea of monarchy and reflecting this way of thinking:

  We hold these truths to be sacred & undeniable; all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying it’s foundation on such principles & organising it’s power
s in such form, as to them shall seem most likely to effect their safety & happiness.

  If that sounds familiar but a little discordant, it should. It’s Thomas Jefferson’s “original Rough draught” of the Declaration of Independence. It’s less elegant than the final version, but it has its own charm.

  The final version of the Declaration, adopted in 1776, reads a lot like articles of impeachment. That is no accident. The idea of impeachment played a major role in the decades that led to the fight for independence. The idea became a defining part of republicanism, American-style—and part and parcel of the attack on the claims of monarchs and monarchy, and an insistence on the equal dignity of human beings.

  The system of checks and balances, the protection of freedom of speech, the commitment to free exercise of religion, the ban on titles of nobility, the protection of property rights, the very words “We the People,” opening the Constitution—all this, and much more, emerged from that day in April. So did the Constitution’s impeachment provisions. When Bob Dylan sang, “Goodness hides behind its gates / But even the president of the United States / Sometimes must have to stand naked,” he was recalling the spirit of American republicanism.

  Almost immediately after the election of Donald Trump, many people called for his impeachment. They did so not because they could point to impeachable offenses, but because they disliked him and they strongly opposed his policies. I recall one conversation with a prominent impeachment advocate who was trying to launch a campaign, in which I asked quietly, “On what grounds do you think President Trump should be impeached?” The answer came back immediately: “Climate change!”