//  6/14/18  //  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.   

There’s much to say about To End a Presidency, Laurence Tribe and Joshua Matz’s careful, nuanced, and engaging new study of impeachment. The book manages, in a relatively short text, to cover the history, mechanics, promise, and perils of impeachment, without glossing over the significant complexities presented by this awesome constitutional power.

Others in this symposium have provided superb responses to the book as a whole. So I want to offer, in my short contribution, some preliminary thoughts about one relatively narrow aspect of impeachment debates: the role of presidential rhetoric. Rhetoric about impeachment plays a sizable role in the book—the authors’ rich historical discussion canvases not only actual efforts to impeach, but also the trajectory of “impeachment talk,” which begins to climb in the middle of the twentieth century. But my focus here is on the role of the President’s rhetoric in the discourse and practice of impeachment.

President Trump has used the bully pulpit in ways that break, often wildly, from the rhetorical norms that preceded him, so it’s not surprising that some discussions of impeachment—and the very preliminary impeachment efforts that have gained traction since January 2017—have pointed to President Trump’s rhetoric. One of the articles of impeachment introduced and quickly rejected in December 2017 identified Trump’s support for “white supremacy, bigotry, racism, anti-Semitism, white nationalism [and] neo-Nazism,” and charged him with “inciting hate and hostility” by “sowing discord among the people of the United States, on the basis of  race, national origin, religion, gender, [and] sexual orientation.”

As it turns out, this isn’t the first time articles of impeachment have focused on presidential rhetoric. Indeed, the tenth article of impeachment against President Andrew Johnson charged that he “did . . . make and deliver . . . certain intemperate, inflammatory, and scandalous harangues . . . [which] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” (I discuss that episode a bit here.) The rhetoric in question was primarily targeted at Congress, and the tenth impeachment article reproduced a number of presidential speeches in which Johnson hurled accusations at Congress, accusing it of “poison[ing] the constituents against [Johnson],” and “trying to break up the government;” in one speech he also promised the crowd, apparently in reference to his congressional critics: “if you will stand by me in this action, if you will stand by me in trying to give the people a fair chance, soldiers and citizens …. God be willing, I will kick them out. I will kick them out just as fast as I can.”  (The speeches, at the hyperlink above, are well worth reading in full.)

Tribe and Matz argue that part of the problem with the congressional effort to remove Johnson was that the offenses Congress identified were largely pretextual; there was “a stark mismatch between the articles of impeachment and the actual reasons he was impeached.” (54). Rather than take explicit aim at Johnson’s racism, sabotage of the Reconstruction project, and general unfitness for the presidency, congressional opponents primarily pointed to Johnson’s removal of Secretary of War Edwin Stanton in violation of the Tenure of Office Act. The tenth article, the one highlighting Johnson’s rhetoric, arguably provided a more revealing window into the actual reasons Congress wished to remove Johnson than did the eight articles focused on the Tenure of Office Act.

The first article of impeachment against Richard Nixon also referenced the President’s speech, accusing Nixon of “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States[.]” This wasn’t a stand-alone charge of public deception; the false statements in question were linked to the broader presidential attempt to cover up the Watergate break-in. But it seems noteworthy that in addition to the charge that Nixon gave false statements to investigators, the impeachment articles highlighted the same conduct vis-à-vis the American public.

Equally intriguing is the omission of any mention of public statements in the articles of impeachment against President Bill Clinton. The first article charged President Clinton with giving, and encouraging or allowing others to give, false or misleading testimony; the second article, which focused on obstruction of justice, also detailed false testimony, concealment of evidence, and other corrupt conduct vis-à-vis witnesses before the grand jury and in the Jones matter. But neither article mentioned the President’s public statements, including a televised speech in which he denied having had “sexual relations” with Monica Lewinsky. So it is noteworthy that despite the absence of public statements from the articles of impeachment, the President’s formal answer to those articles offered this concession: “The President acknowledges that….he misled his family, his friends and staff, and the Nation to conceal the nature of his relationship with Ms. Lewinsky.”

Throughout their text, Tribe and Matz make clear that impeachment is reserved for conduct, not character. But rhetoric defies easy categorization as either conduct or character. And therein lies part of the challenge in identifying the proper connection between presidential speech and the exercise of the impeachment power. At one point the book suggests that “rarely, if ever, will words alone suffice for impeachment.” (65) My strong sense is that the authors are correct about this, and that this is especially true where a president’s statements in office align with campaign rhetoric.

But the authors seem to leave the door open to the possibility that some presidential speech might be an appropriate component of an impeachment charge—or at least evidence in an impeachment hearing. If that’s right, the two categories of presidential speech that seem like the most plausible candidates are something akin to incitement, and material public lies or misstatements—particularly if there is a connection between such public statements and government action.  

Taking incitement first, an analogy to First Amendment law may be appropriate: speech by private citizens, however vile, is generally protected by the First Amendment unless it crosses the line to incitement, at which point it can be subject to sanction. Speech by presidents, however vile, should arguably be similarly beyond the reach of Congress’s impeachment power unless it crosses an analogous line. The power of the president’s platform might supply a reason for drawing the line in a different place for the president than for private citizens; but some sort of line should surely be discernible.

Lies and misstatements present a harder case. Perhaps misstatements of the sort at issue in the case of President Nixon—those with a tight connection to a course of conduct, or particular acts, that may themselves be deemed by Congress to constitute “high crimes and misdemeanors”—should fairly be considered, either in articles of impeachment or as evidence during the course of an impeachment trial. By contrast, presidential statements that are not connected to such actions should perhaps rightly be disregarded in considering and pursuing impeachment—as Congress chose to disregard President Clinton’s public statements in preparing those articles of impeachment.

It may be that it is simply too difficult to draw principled lines around presidential speech, so that it should all be off limits when it comes to impeachment. But, as Tribe and Matz make clear throughout their text, “it really does matter which acts are identified in articles of impeachment voted on by the House.” (54) So it is very much worth asking both historical and normative questions about the relationship between presidential statements and the power of impeachment.

Impeachment as a Constitutional Design Choice

6/18/18  //  In-Depth Analysis

What can we learn about presidential removal from a careful study of foreign constitutions and experiences?

Aziz Huq

University of Chicago Law School

Tom Ginsburg

University of Chicago Law School

To End A Presidency

6/13/18  //  In-Depth Analysis

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

Take Care

Impeachment as Punishment

6/13/18  //  In-Depth Analysis

There is an important connection between impeachment and criminal law. Not in technical or legalistic doctrinal nuances, but rather in the core purposes underlying these two domains.

Andrew Crespo

Harvard Law School