Impeaching the President: Past, Present, and Future (Open Media Series) - Softcover

 Alan Hirsch received his BA from Amherst College and JD from Yale Law School.  He is the chair of the Justice and Law Studies program at Williams College.  Alan has authored several books, including For The People: What the Constitution Really Says About Your Rights (Free Press) (coauthored with Akhil Amar) and A Citizen's Guide to Impeachment (Basic Books), The Duke of Wellington, Kidnapped! (Counterpoint). His work has appeared in the Los Angeles Times, Washington Times, Newsday among many other places. 

Introduction

         The idea of impeaching the next president surfaced during the 2016 presidential election even before we knew who that president would be. Opponents of Hillary Clinton made no bones about their desire to push impeachment should she win, based on her use of a private e-mail server when she was Secretary of State. Similarly, opponents of Donald Trump maintained that his extensive business interests disqualified him from the presidency. Calls for Trump’s impeachment on this and other bases began almost before he had completed his inaugural address. His impeachment became a more realistic prospect a few months later with the appointment of special counsel to investigate possible criminal activities involving the Trump campaign.

         Throughout 2017, as special counsel Robert Mueller indicted several high-ranking officials in the president’s campaign and transition, commentators warned that the nation was headed for constitutional crisis. Debates broke out that went to the heart of American democracy. What would happen if the President pardoned all those indicted? What if he pardoned himself? What if he fired the special counsel before the latter completed his investigation? What was to be made of the claim by President Trump’s personal attorney, John Dowd, that “the president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution]?” Critics responded that Dowd’s view puts the president “above the law” and thus contradicts a fundamental premise of the Constitution. Who was right?  

         Such questions, once fodder for law school exams and scholarly musings, could determine the fate of our republic. Fortunately, in addressing these questions, we do not write on a blank slate. The philosopher George Santayana famously observed that those who cannot remember the past are condemned to repeat it. The more optimistic converse is that, by learning from history, we can shape a better future. We must, therefore, revisit the scope, purpose, and history of presidential impeachment.

         This book will look in depth at the impeachment sagas surrounding Andrew Johnson in 1868, Richard Nixon in 1974, and Bill Clinton in 1998, in order to draw lessons for future impeachments. We shall then apply those lessons to the circumstances surrounding Donald Trump, mindful that we face a fast moving target. First, though, we need to place impeachment within a broader context.

The genius of America’s constitutional design lies largely in the numerous interlocking clauses that safeguard against any person or group obtaining too much power. It starts with the division of the government into two separate spheres of authority, federal and state, and the division of the former into three separate branches with specific responsibilities.  

         But that double division of power was not enough. Congress only makes laws, but what if it passes laws that suspend elections or instruct the courts how to decide cases? The President only has executive power, but what if he uses such power to harass or intimidate members of the other branches? The courts only decide cases, but what if they wantonly strike down Congress’s laws and the President’s executive actions? Because limiting the authority of the three branches might not suffice, the founders also gave each branch means of keeping the others from overstepping.

         The greatest risk of tyranny comes from the executive branch, in part because the president is a single person. Members of Congress and the Supreme Court cannot accomplish anything unless they persuade a majority of their colleagues to go along. In addition, the President’s authority includes the power of the sword: sitting atop both the military and law enforcement, he has the nation’s actual weapons at his command. For both of these reasons, restraints on presidential power are crucial.  

         Preventing tyranny preoccupied the founding fathers in part because of oppression by the British monarchy. King George III mistreated not only the colonies, but also his own people. One goal of the Constitutional Convention was to prevent monarchy by another name. In fact, some delegates opposed making one person responsible for executing the nation’s laws. While the Convention eventually decided in favor of a one-person executive, it adopted a series of provisions designed to keep the president from becoming king-like.

         Perhaps most significantly, the President would serve only a four-year term, requiring him to win periodic approval of the voters if he (and in those days it was assumed to be a “he”) wished to remain in office. But recognizing that great damage can be done in four years, the founders also provided a mechanism for quicker replacement of the President if necessary. Specifically, the House of Representatives could “impeach” him, an accusation of wrongdoing that would initiate a trial in the Senate. The Senate, in turn, could by two-thirds vote convict the President, which would automatically result in removal from office. (Congress can impeach and remove all federal officers, not just the President, but presidential impeachment was the framers’ chief concern.)

         Thus, the Constitution gives Congress the ultimate check on presidential power. At the Constitutional Convention, Virginia delegate George Mason captured the significance of this tool with a pair of rhetorical questions. “Shall any man be above justice? Above all, shall that man be above it, who can commit the most extensive injustice?” Alexander Hamilton directly tied the impeachment remedy to the goal of avoiding monarchy: “By making the executive subject to impeachment, the term monarchy cannot apply.” The King, after all, could not be impeached.  

         We should not take the impeachment tool for granted. While not unique to America, it is far from universal. When Richard Nixon resigned from office in 1974 under threat of imminent impeachment, many foreign leaders were bewildered. They assumed throughout the Watergate affair that, if he had to, Nixon could use his vast power to secure his position. In many countries, it is difficult if not impossible to remove a leader short of an insurrection or coup.

         America has never experienced an insurrection or coup against the President. Instead, when he is believed to have abused his power, we resort to impeachment -- a pillar of our democracy and a peaceful means of protecting our fragile liberty. Even the President, this uniquely powerful and privileged person who commands an army and lives in luxury at the public expense, can be brought to heel. Nixon’s downfall, while a national crisis and even national tragedy, affirmed a transcendent principle. The People exiled from power a man who won a 49-state electoral landslide less than two years earlier. The notion that no person is above the law, which in ordinary times sounds like a utopian ideal if not a cliché, suddenly seemed very real.    

         But like any potent tool, impeachment is dangerous if misused. It can be used to subvert the ballot box and to bludgeon a president Congress dislikes. While the removal of Nixon was a success story, a victory not for a particular party or ideology but rather for the American people and our institutions, it may be the exception. Many historians view the two actual presidential impeachments, Andrew Johnson’s in 1868 and Bill Clinton’s in 1998, as partisan disasters where the abuse of power came less from the impeached President than from his impeachers.

         If impeachment can showcase America at its best or worst, what separates the two? History offers guidance. As noted, we will revisit and draw lessons from the three major presidential impeachment episodes. We will also address the other means of removing an unfit president – the 25th Amendment, which provides for temporarily removing a president who is “unable to discharge the powers and duties of his office.”   We begin, though, by seeking to learn from the founders.