//  6/8/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on To End A Presidency: The Power of Impeachmenta new book by Larry Tribe & Joshua Matz.   

If impeachment is impossible and even talk of impeachment can be destructive, as Larry Tribe and Joshua Matz persuasively show, how do we check a president who is violating the Constitution? 

Tribe and Matz have written a wonderful book.  It does a masterful job of telling the history of impeachment and of analyzing the meaning of this aspect of the Constitution.  In addition to their careful legal analysis, Tribe and Matz offer astute political analysis of our current polarized country and the role of impeachment in this context. Their book is simultaneously timeless in its looking at impeachment as a tool created by the Constitution and timely in focusing on impeachment in the context of a president unlike any other in American history.

I agree with their ultimate conclusion that “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.”  Moreover, they are surely right that “[i]n this climate, finding sixty-seven votes to convict a president would be a Herculean task.” 

Their review of history shows that this is not new or just about our current context.  They quote Thomas Jefferson that “impeachment is an impracticable thing, a mere scarecrow,” and opponents of Andrew Jackson that impeachment “had become little better than a tale to amuse, like Utopia or Swift’s flying island.”

This makes me wonder if the Constitution makes it too hard to remove a president.  Would it be better to have some mechanism for a “no confidence” vote that can end a disastrous presidency?  I am unsure.  An enormous amount of damage can be done by a president in four years.  After 14 months of the Trump presidency and with 34 months to go, I fear we will see this in a way unprecedented in the experience of the United States.  But I also worry that in a polarized time, especially with presidents who lost the popular vote, any such mechanism would lead to a cycle of efforts to remove presidents.  The history that Tribe and Matz tell of unpopular presidents – whether Tyler or Truman or Trump – makes me think that several presidencies would have been ended early by no confidence votes.  I left wondering whether that would have been better or worse for the country.

But with no such mechanism in the Constitution and with impeachment a virtual impossibility, what can be done when the president violates the Constitution?  In theory, Congress might check the president, perhaps as Tribe and Matz suggest by censure or maybe using other tools such as the spending power.  That, though, seems quite unlikely when Congress is controlled by the same political party as the president.

Near the end of the book, Tribe and Matz say, “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.”  But what happens when there is a president who is not acting in good faith and shows no proclivity for self-restraint?  As Tribe and Matz say, “[t]hat’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 question of how to check a president who is blatantly violating the Constitution is particularly salient with Donald Trump in office.  Tribe and Matz refer several times to President Trump’s simply ignoring the emoluments clauses of the Constitution.  (Like them, I am involved in a lawsuit to stop these constitutional violations).

President Trump is violating the Constitution literally every day in receiving benefits in violation of the “emoluments” clauses.  Article I, section 9 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state. The Constitution broadly prohibits receiving any benefit from a foreign government.  Yet, President Trump constantly is receiving economic benefits from foreign countries, including through hotels owned in his name.           

For example, China granted the President valuable trademarks after denying them to him for years. Within days after receiving these, President Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a “one China” policy.

Article II, section 1 of the Constitution says that while in office, the President shall receive compensation for serving, but shall not receive “any other emolument from the United States.”  This provision was meant to keep a president from using his position to receive other benefits from the federal government.  Yet, President Trump is constantly doing just that, as buildings he owns are renting space to the federal government and he is personally profiting. 

Congress is not going to do a thing about it, let alone pursue the dramatic remedy of impeachment.  Long ago, in Marbury v. Madison, Chief Justice John Marshall explained that the Constitution exists to limit the government and its limits are meaningless if they are not enforced.  He also reminded us that under the Constitution, no one, not even the president can be above the law.

The answer that emerges from this for me is the essential nature of the judiciary to stop the president from violating the Constitution.  If we can’t rely on Congress to check the president, it must be the role of the courts to do so.  It is imperative that the doctrines governing judicial review, such as the justiciability doctrines, not preclude the courts from performing this essential task.  Too often in the past, and now, courts have used doctrines like standing and the political question doctrine to effectively immunize unconstitutional presidential actions from judicial review. 

The alternative is to leave compliance with the Constitution to the “good faith” of the president.  That can’t be right in a society committed to constitutional governance and the rule of law.

Still, there is the question of when violations of the Constitution warrant talking about impeachment and pursuing it.  In their preface, Tribe and Matz rightly point to the three key questions in this regard: “1) is removal permissible; 2) is removal likely to succeed; and 3) is removal worth the price the nation will pay.

These are the questions to discuss with regard to the Trump presidency and for any in which a president seriously abuses the powers of the office and violates the Constitution.  Tribe and Matz are to be congratulated for having pointed us to the right questions and having given us a great deal of useful material for answering them.

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Charlie Gerstein

Gerstein Harrow LLP

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Charlie Gerstein

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Jason Harrow

Gerstein Harrow LLP