//  6/13/18  //  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.   

Questions of impeachment are invariably linked in our minds with questions of criminality. On some level this is not surprising. The Constitution, after all, directly ties the two together, authorizing a president’s removal only upon his “Conviction” of either “Treason” or “Bribery” (both federal crimes) or of some “other high Crimes and Misdemeanors.” The process of impeachment, moreover, has readily identifiable analogs to a criminal prosecution, with members of the House of Representatives assigned to file charges and to “act as prosecutors” in a formal trial held before the Senate, which comes complete with a presiding judge, an oath that the senators will “do impartial justice,” cross-examination, and a verdict of “guilty or not guilty.” Perhaps more fundamentally, impeachment and criminality are linked in our minds because every major impeachment saga of the modern era has started not in the halls of Congress but rather in the Department of Justice, where a team of federal prosecutors has conducted an explicitly criminal investigation of the president and his associates. Indeed, it is hard to call these episodes to mind without immediately thinking of their central antagonists: Archibald Cox versus Richard Nixon, Kenneth Starr versus Bill Clinton, Robert Mueller versus Donald Trump—the prosecutor versus the president.

In view of all of this, it is tempting to think of impeachment as some hyperspecialized subspecies of criminal law—as a set of rules and processes designed to address what Aziz Huq calls “apex criminality,” that is to say “criminal acts by elected or appointed figures at the very apex of government,” including potentially the president of the United States. And yet, in their new and important book To End a Presidency, Larry Tribe and Joshua Matz go to great lengths to complicate this understanding—to try to disentangle impeachment from criminal law. “Impeachment,” they tell us, “is a political remedy wielded by politicians to address a political problem” (p. 141). In stressing this point, they aim to present “the very essence of impeachment as political rather than criminal in character” (p. 13).

On one level, this effort to disentangle impeachment from criminal law is both helpful and necessary, for there are indeed important distinctions between the two. For one, as Charles Black observed decades ago, many of the procedural aspects of an impeachment trial need not and should not “be treated like the same things in a criminal trial.” Tribe and Matz echo this point, observing, for example, that “the right against self-incrimination” may not apply “to the president in an impeachment proceeding” (p. 157), and that the senators sitting in judgment come together not simply as “a jury” charged with deciding the facts but also “as a court” empowered to “overrule” legal determinations made by the Chief Justice (pp. 80, 133). More significantly, Tribe and Matz strenuously reject the argument “that only criminal offenses are impeachable,” which they view as “deeply and profoundly wrong” (p. 45). Rather, they define the power to impeach more broadly as the “power to remove out-of-control presidents,” regardless whether a federal crime has technically been committed (p. 10). Finally, and perhaps most importantly, Tribe and Matz distinguish between the basic judgment at issue in a criminal trial and the judgment called for in an impeachment: Senators, they explain, “may consider practical, moral, and political factors that have no place in a well-constituted court of law” and that may “have little to do with the president’s guilt or innocence of the alleged abuses” (pp. 80, 198).

Taking all of these considerations together, one might conclude that, facial similarities aside, impeachment and criminal law are so inherently distinct that it is at best confusing, at worst dangerous, to mix the two together. At times, Tribe and Matz appear to endorse this view, warning us that “jamming” debates about impeachment “into a criminal law framework often obscures what’s really at stake.” Indeed, they worry that doing so risks transforming foundational questions of democracy into technical questions that “seem legalistic and dry,” and that ultimately distort “public dialogue about impeachment” by moving it beyond the ken of “ordinary Americans” into the “province of fancy lawyers” (pp. 52, 45). One might quibble with the notion that criminal law—which has spawned countless hit television shows and podcasts, not to mention nightly news bulletins—is too fancy for the ordinary among us. But the broader point is well taken: As Tribe and Matz rightly explain, “it makes little sense to blindly transplant . . . criminal law doctrines . . . into the Impeachment Clause” (p. 32).

And yet, after reading Tribe and Matz’s impressive book, I found myself seeing a closer connection between impeachment and criminal law than I had when I first opened its cover. That connection resides not in technical or legalistic doctrinal nuances, but rather in the core purposes underlying these two domains. For among the many things that this book invites us to consider is the idea that impeachment is in many ways about punishment.

At points, Tribe and Matz resist this characterization, describing impeachment as concerned with “political accountability and popular sovereignty,” not with “whether removal is warranted as punishment” (pp. 40, 47). And yet, to a criminal law scholar at least, it is hard to read the Founding Era debates that Tribe and Matz so expertly capture without thinking that punishment loomed large in the Framers’ conception of impeachment. Edmund Randolph, for example, argued that the Constitution ought to include an impeachment power because “Guilt wherever found ought to be punished” (p. 6). Benjamin Franklin likewise described impeachment as “a regular & peaceable inquiry” whereby the “guilty” are “duly punished” (p. 7). And George Mason offered up as a “reason in favor of impeachments” the notion that “the man who has practised corruption” ought not “be suffered to escape punishment” (p. 5). Decades later, Joseph Story linked impeachment to punishment in his famous Commentaries on the Constitution of the United States,describing “the power of the senate” to remove a president as the power “to inflict punishment” (p. 12). In fact Tribe and Matz themselves occasionally embrace the connection as well, urging us when “thinking about ‘high Crimes and Misdemeanors’” to “recall elementary norms of fair notice and just punishment” (p. 42).

Those who work in and study the criminal justice system will likely welcome this invitation to consider elementary norms of punishment when reflecting on impeachment, for if there is one question that criminal justice scholars perennially confront it is the question “why punish?” And while Tribe and Matz are surely right that an impeachment is no ordinary criminal case—indeed, is not a criminal case at all in the narrow sense of the term—the Framers’ close linkage of impeachment to punishment invites us to ask whether thinking of impeachment as punishment might shed some light on the central and vexing question animating Tribe and Matz’s project: “why impeach?” Indeed, reading Tribe and Matz through the lens of punishment affords an opportunity to organize and assess the many arguments for and against impeachment that they offer. For simplified to its extreme, the question “why punish?” tends to attract two basic answers: Sometimes, punishment is useful. And sometimes, utility aside, it is simply the right thing to do.

Consider first the utility of punishment, which punishment theorists tend to describe in two different ways: Punishment can incapacitate a dangerous criminal, and it can deter him—or others—from criminal behavior going forward. Tribe and Matz at times offer arguments for impeachment couched in this latter frame of deterrence, arguing that “decisions not to impeach” could “signal to future chief executives that they, too, can cross whatever bridge proved safe for a predecessor” (p. 98, emphasis added). A failure to impeach might also invite “other officials and bureaucrats to ask, If the president can do this, why can’t I?” (p. 98). And yet, while impeachment could theoretically “deter official misconduct” and “remind future presidents that nobody is above the law” (pp. 13, 221), in practice deterrence seems like a decidedly weak justification for impeachment, for the simple reason that the threat of impeachment—let alone removal from office—is too remote to be much use. After all, as Tribe and Matz observe, in the 229 years that we have lived under the Constitution “Congress has repeatedly declined to act” on its impeachment power, “despite credible suspicion of impeachable offenses” on the part of a “dizzying array” of presidents—including (the authors recount) John Adams, Thomas Jefferson, Andrew Jackson, John Tyler, Franklin Pierce, James Buchanan, James Polk, Warren Harding, Franklin Roosevelt, Gerald Ford, and Ronald Reagan (pp. 34-35, 71-74). As criminologists regularly observe, it is “the certainty of punishment, as opposed to the severity of punishment” that is most “likely to produce deterrent benefits.” If that is right, however, then impeachment is simply too uncertain—even when warranted—to have much deterrent effect.

More weighty are arguments grounded in incapacitation. Indeed, at various points Tribe and Matz suggest that incapacitating a dangerous president may be the only legitimate grounds for impeachment: Impeachable offenses, they write, “are necessarily defined by substantial risk of future danger,” such that the “all-important question is whether we must remove a leader whose continuation in office poses a grave risk” (p. 95). But when framed as a matter of incapacitation, Tribe and Matz’s answer to that all-important question almost always seems to be “no,” and sensibly so: In virtually every instance in which impeachment might arise, it will either be an unnecessary or an inadequate tool for incapacitating the president.

Tribe and Matz recognize as much. With respect to impeachment’s lack of necessity, they note that if “the stars are aligned such that impeachment is on the table, other responses” will almost always be available to mitigate the risk that the president will “inflict further damage . . . if he remains in office” (pp. 82, 42). Indeed, Tribe and Matz stress that “Congress’s arsenal should not be underestimated” in this regard, given its substantial “power to legislate,” “power of the purse,” “powers over personnel,” and “power of investigation” (pp. 82-83)—not to mention softer constraints imposed by “evolving norms and culture” that can also limit presidential power (p. 23). Taken together, “these powers allow Congress to coerce obedience to its will” and to “hold the president and his staff accountable” (pp. 82-83). Congress, in other words, has substantial power to incapacitate all but the most diabolically destructive presidents—not by impeaching them but rather “by checking them, balancing them, and running out the clock on their four-year term” (p. 19).

Of course, in rare and perilous cases these checks may “be inadequate to the task of thwarting tyranny . . . especially in the realms of foreign affairs and national security” (p. 84). But should such a frightening eventuality come to pass, arguments that “impeachment is our system’s last resort for avoiding genuine catastrophe” (p. 23) run into a second and more significant practical problem: “Ending a presidency” through impeachment “requires months or years of concerted political and investigative activity” (p. 238). Indeed, given how cumbersome the process is, Tribe and Matz ultimately turn to a wholly separate constitutional device to deal with “a truly insane, destructive . . . crisis” prompted by a president bent on destruction: “the vice president and the cabinet,” they argue, “should invoke” the Twenty-Fifth Amendment “to immediately dispossess [the president] of power” and keep him “under control while Congress conducts” the laborious process required “to permanently remove him from office” (pp. 230-31).

In short, while it is undeniably true that a president who “has been removed from our highest office . . . cannot use its power to cause harm” (p. 12), incapacitating a president through impeachment seems in most cases unnecessary—and in the remainder much too cumbersome to be useful.

What, then, of the second answer to the question “why punish?,” namely that doing so may sometimes simply be the right thing to do? In the philosophy of punishment, arguments in this vein take on a multitude of hues, stretching back as least as far as Immanuel Kant’s assertion that punishing a wrongdoer is a categorical imperative, without which “Justice would cease to be Justice.” Students of criminal law will recognize this argument as the fountainhead of the idea that punishment is justified—indeed, is required—as an act of retribution against a depraved and immoral actor whose very “moral culpability,” to quote philosopher Michael Moore, gives society not “merely a right to punish” but also “the duty to punish.”

At times, one catches glimpses of this retributivist sentiment in Tribe and Matz’s work, as they trenchantly remind us that when confronted with presidents “who abuse their power” we must “call evil by its name” (p. 238). Indeed, in training our “moral vision” (p. 18) on an impeachable president’s “evil deeds” (p. 41), Tribe and Matz warn us of “a monster lurking in the Oval Office” (p. 57), in much the same way that a retributivist might invoke and seek to punish other monsters thought to be lurking in our midst. And yet, much like arguments from deterrence, arguments for impeachment grounded in retributivism ultimately fall flat—for the simple reason that removal from office is a price too small to pay for a president who has truly “done something so awful that we must seriously consider” such a sanction (p. 42). An anonymous Virginian, writing to his local paper in 1795 and quoted by Tribe and Matz, captures this point well: “The constitution has given [only] the mild punishment of impeachment for the greatest abuses” (p. 154). Impeachment, in other words, is a punishment so light—offered against crimes so severe—that it offends retributivism’s core tenet of proportionality. That mildness, moreover, exists by design, for as Tribe and Matz explain, the Framers expressly rejected the far harsher form of impeachment embraced “in England and France, where legislatures could impose capital punishment in cases of impeachment” (p. 11). Instead, our Founders drew “a sharp line between political and criminal penalties,” thus ensuring that true retribution—exacted through “fines, imprisonment, or a death sentence”—would be “reserved for the courts” and “the criminal justice system” to mete out as “punishment for misdeeds committed while in office” (p. 12). Still, it is those punishments—imprisonment, not impeachment—that retributivism demands when high Crimes have been committed.

And so in the end, having measured impeachment against these familiar theories of punishment and found it lacking, we are left with the strong sense that the question “why impeach?” might best be answered by saying simply, well, “Don’t.” Indeed, while Tribe and Matz carefully canvas the arguments on all sides, their message rings perhaps most clearly when it sounds a cautionary note against impeachment—a warning inherently wise given the gravity of what is at stake, and all the more credible coming from two thoughtful scholars who may have once harbored different intuitions. Yet still, after considering impeachment through the lens of punishment, one cannot help feeling that the standard trio of justifications grounded in deterrence, incapacitation, and retribution comes up short—that it misses an argument in impeachment’s favor that may be closest to the mark. Joshua Kleinfeld would call this final argument “reconstructivism,” an idea that is elegant in its simplicity: Together with our fellow citizens we inhabit “a normatively laden social fabric” that is “worth defending and reinforcing.” Serious criminal acts, including perhaps most especially acts of “apex criminality,” tear that fabric apart. And in the face of such existential social violence, “societies typically do and must respond” with “condemnatory punishment,” because punishment’s “primary purpose and primary competence,” according to Kleinfeld, “is to restitch a torn social fabric,” an essential act of “normative reconstruction.”

Powerful as this conception of punishment may be, it is when viewed through the lens of reconstruction that Tribe and Matz’s account of impeachment offers perhaps its most vexing and most provocative analysis. For the authors engage the subject of impeachment deeply (if implicitly) on reconstructivist terms—and they come away profoundly skeptical that punishing a president can ever help us as a nation to heal. Notably, their point of departure from the reconstructivist ideal is not over the nature of the harms associated with high Crimes and Misdemeanors. On the contrary, using language Kleinfeld would embrace, Tribe and Matz describe such conduct as inflicting “injury on the state itself” and as posing “a menace to the political order” (pp. 39, 19). Indeed, Tribe and Matz frame impeachment in starkly reconstructivist terms when they warn that tolerance of such misdeeds “may forever change how the American people understand their own democracy,” a concern we see perhaps most clearly presented when they ask: “Will we survive this presidency, and, if we do, what kind of nation will we have become?” (pp. 97, 53, emphasis added).

But when it comes to existential threats to our social fabric, there is one thing that Tribe and Matz fear more than a president’s high Crimes and Misdemeanors—and that is impeachment itself. With dark foreboding they warn that when “Congress ends a presidency before its natural life span, there’s no avoiding profound and enduring national trauma” (p. 100). They fear that the “high-stakes drama of an impeachment proceeding might embitter Americans against one another, further fraying our sense of devotion to a shared national project” (p. 105). They caution that “impeachments can birth a cycle of angry, existential politics, breaking settled political structures and surfacing latent divisions” (p. 106). Indeed, they see impeachment itself as inflicting “‘a measure of violence’” on “‘our constitutional democracy,’” through a process “bound to be divisive and disheartening” and from which we would “‘by no means inevitably recover’” (pp. 100, 234).

In short, Tribe and Matz strongly suggest that it is the punishment, not the crime, that holds the greatest risk of our undoing—leaving us only to ask, are they right? And therein lies the ultimate dilemma, from which Tribe and Matz admirably do not shrink: “we can’t know in advance whether an impeachment will raze or reinvigorate the cultures, norms, and institutions that define our democracy” (p. 106). Perhaps an impeachment, however “disruptive,” will ultimately “trigger productive dialogue about reform and reformation,” catalyzing the very “political reconstruction” that Kleinfeld’s vision of punishment predicts and celebrates (p. 106). The Nixon saga may offer an encouraging example in this regard, to the extent that it “unified much of the nation,” albeit “in fury and horror” (p. 106). And indeed, the very fact that presidential removal requires sixty-seven votes in the Senate means that it can only ever arise from serious “bipartisan consensus,” which in turn “requires extensive national deliberation” and “agreement from many Americans,” including many “who originally supported the disastrous leader” (pp. 140, 237). Reconstruction, in other words, is not necessarily beyond impeachment’s reach.

Or perhaps, instead, we are already too far gone for all of that. Perhaps the “forces of decay, disinformation, and disunion” have already produced a “rot in our political system” beyond any power of punishment to repair (p. 241), leaving only the “distinct risk that impeachments will unleash and concentrate the ugliest forces in US politics” (p. 105). If that is the case, then it may not ever matter whether the president is “guilty as charged,” for “removing him would ‘only serve to further undermine a public trust that is too much damaged already’” (p. 70). In that event, impeachment is likely only to yield a “cynicism” that could “persist a generation or longer, seeping like a poison into American life” (p. 105).

It is on this discordant note that Tribe and Matz leave us, not with resolution but with a call to answer on our own the question “why, if ever, impeach?” More fundamentally, they leave us with a call to action, and to a project of reconstruction divorced from punishment—a call “to transcend our deepest divisions in search of common purpose and mutual understanding,” to “draw together in defense of a constitutional system that binds our destinies,” and ultimately to save our democracy ourselves (pp. 240-241). “Maybe impeachment should play a role in that process; maybe it will only make things worse” (p. 240). The best we can hope is to be guided by wisdom equal to that offered in this worthy book, and “that the nation survives with its spirit intact and the strength to rebuild all that’s been broken” (p. 108). If, however, we conclude in the end that “the pain” of punishing the president is not “worth the price” (p. 100), then perhaps Tribe and Matz will have taught us a worthwhile lesson not just about impeachment but about punishment itself: Punishment of criminals, high and low, always carries with it a serious risk of destruction—of communities, of lives, of the social fabric—even as it enticingly promises to help us rebuild.

This post is adapted from an essay that will appear in Volume 13.1 of The Harvard Law & Policy Review in 2019 and may not be reproduced without written permission of that publication

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