//  6/19/18  //  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.   

We live in an era of impeachment talk, with a president who provides more fodder for impeachment on a weekly if not daily basis.  All the more important to have thoughtful and balanced assessments of when impeachment is, and is not, appropriate.  Laurence Tribe and Joshua Matz’s recent volume, To End a Presidency: The Power of Impeachment, is exactly that.  Its careful and informative analysis is exceptionally nuanced, perhaps to a fault; their detailed “on the one hand” and “on the other hand” exegesis of the dangers of both impeaching and not impeaching may leave readers yearning for greater simplicity and bright-line rules. 

But that is precisely Tribe and Matz’s point:  Impeachment is and should be difficult.  Bright-line rules, like the claim that “only criminal offenses are impeachable,” (p. 45), or that pre-election conduct is never impeachable, offer false clarity at the cost of fundamentally misunderstanding impeachment’s role.  For Tribe and Matz, impeachment is a critical tool for preserving the constitutional system, and thus the standards of impeachable conduct necessarily evolve alongside changing views about the permissible scope of executive power.  Their test embraces the need for deep national judgment: “Impeachment should occur when a president’s prior misdeeds are so awful in their own right, and so disturbing a signal of future conduct, that allowing the president to remain in office poses a clear danger of harm to the constitutional order.”  (p. 23).  Moreover, this harm has to be grave enough to overcome the danger to the constitutional order and democracy posed by the act of impeachment itself.

Yet Tribe and Matz also lay down some firm guideposts.  One of these, repeated throughout the book, is a claim on which most impeachment scholars firmly agree:  Impeachment should not be ordinary politics by a different means.  Impeachment is not meant to be the U.S. equivalent of a parliamentary vote of no confidence, as evident from the framers’ rejection of “maladministration” as an impeachment grounds.  An impeachment that appears “purely partisan” is in Tribe and Matz’s view “presumptively illegitimate.” (p. 139).  And they identify today’s polarized politics along with the growth of partisan impeachment talk as the greatest threats to impeachment’s integrity.

Their approach thus rests ultimately on a distinction between constitutionalism and partisan politics.  We must be able to recognize harm to the constitutional order on a bipartisan basis for impeachment to serve its proper constitutional function.  But how often is that the case?  The record of past presidential impeachment efforts does not bode well.  As Tribe and Matz recount, Bill Clinton’s impeachment was deeply partisan, and viewed as illegitimate for that reason.  The early effort to impeach John Tyler was also driven by politics, albeit intra-party divisions within the Whig party rather than inter-party disagreement.  Meanwhile, notwithstanding appearances, Andrew Johnson was really impeached for his opposition to Reconstruction and refusal to use federal power to protect newly freed slaves.  Only Nixon’s likely impeachment fits the bill as a form of bipartisan constitutional enforcement, but Tribe and Matz warn that Nixon represented an extraordinary instance of abuse of power—and one that occurred in a period of low political polarization—that should not be viewed as a necessary threshold for legitimate impeachment.

Andrew Johnson’s impeachment merits special attention for showing the difficulty of distinguishing when ordinary politics ends and constitutional protection begins.  Tribe and Matz stand out from other scholars, including most recently Cass Sunstein, in arguing that Johnson’s impeachment was justified.  Tribe and Matz acknowledge that the reason given in the articles of impeachment for removing Johnson from office—his alleged violation of the unconstitutional Tenure in Office Act by firing Secretary of War Edwin Stanton without Senate ratification—was weak.  But they contend that a “compelling basis” for Johnson’s removal nonetheless existed: “Johnson’s virulent use of executive power to sabotage Reconstruction posed a mortal threat to the nation—and to civil and political rights—as reconstituted after the Civil War.” (p. 55) They insist that the fight over Reconstruction was not ordinary politics but a much more fundamental battle over the future of the nation after the Civil War.  Johnson did not simply oppose Reconstruction, he “abused the powers of his office and violated the Constitution to preserve the institutions and practices that nearly killed the Union.” (p. 55)

Standing up for Andrew Johnson is hardly an appealing proposition, and in any event I share Tribe and Matz’s view that Johnson’s opposition to Reconstruction merited impeachment.  But I’m skeptical that the Johnson episode is so clearly distinguishable from other intense partisan disputes. Focusing on the unique post-Civil War situation of the country at the time of Johnson’s impeachment risks unduly narrowing the range of constitutional enforcement; surely neither war nor brutal violence is needed to make political disagreements sufficiently constitutional in scope to support impeachment.  On the other hand, as scholarship on popular constitutionalism and constitutional construction emphasizes, ordinary politics is a critical mechanism for contestation over competing constitutional understandings.  If we seek to distinguish between political disputes that carry constitutional salience and those that don’t, we will find that many fall on the impeachment-worthy side of the line.

This difficulty in distinguishing between constitutional disagreements and ordinary policy disputes is particularly true today with respect to the executive branch.  Disagreements over administrative policies are increasingly framed in stark constitutional rhetoric, and the same is only more true when it comes to presidential action.  One of the best chapters in the book is Tribe and Matz’s tracing of the emergence of “impeachment talk” over the last few decades.  They detail how impeachment has “become an accepted, predictable tool of partisan combat” (p. 185) for both liberals and conservatives, a notable change from much of the nation’s history.  Less emphasized in their account is how presidential failings are also increasingly framed in constitutional terms.  Nearly a year and a half into office, Trump has been accused of a range of unconstitutional actions—from taking foreign emoluments, to engaging in religious and racial discrimination, to violating longstanding constitutional norms such as prohibitions on presidential interference in criminal investigations.  For his part, President Obama was routinely attacked for unconstitutional executive branch unilateralism and overreach and for failing to perform his constitutional take care duty.  

Whatever one thinks of the merits of these constitutional claims, this turn to constitutionalized politics has systemic effects.  When political disagreements come dressed in constitutional garb, it is not surprising that impeachment talk bubbles up; similarly, more impeachment talk yields more framing of policy disputes in constitutional terms.  It is increasingly difficult to envision an account of how particular presidential actions threaten the constitutional order that is not deeply partisan tinged.  Any effort to separate ordinary politics from the constitutional realm of impeachment starts to look Herculean at best and conceptually incomprehensible at worst.

Recognizing this overlap doesn’t doom Tribe and Matz’s project.  One way of understanding their book is as an effort to walk back not just impeachment talk but also constitutionalized politics.  On this view, their repeated distinction between ordinary politics and defense of the constitutional order is as much performative as descriptive.  Only if we insist this distinction carries continued resonance, and construct an impartial and balanced account of impeachment, will we be able to restore impeachment to its proper and properly reduced role in our constitutional order.

This approach is certainly worth a try.  But it is also worth contemplating taking the opposite tactic and embracing politics as the key to preserving impeachment’s rightful place.  Doing so would mean framing the argument against wanton invocation of impeachment in more starkly partisan terms:  impeachment is a poor tool for partisan warfare.  Impeachment may be useful for stirring up a party’s base, but at the cost of broader public support and strengthening its putative presidential victim.  As Tribe and Matz recount, that was the lesson of the Clinton impeachment and it is one party leaders have taken to heart, with Nancy Pelosi shutting down talk of impeachment during the Bush administration.

For their own political interests, then, parties should forego impeachment talk—unless they control both houses of Congress with a sufficient supermajority in the Senate that an impeachment effort would likely be successful, or the President’s actions are so egregious as to generate bipartisan opposition.  Of course, such strong control of Congress by the party not in the White House also makes impeachment usually unnecessary, as political realities will force a president to compromise.  Hence, on a strictly partisan calculus, impeachment will rarely make political sense, and engaging in impeachment talk risks creating political momentum that may backfire.  This leaves the possibility that a president faced with overwhelming opposition might still insist on pushing his or her agenda at any cost.  In such a context, as with Andrew Johnson, impeachment might well be politically as well as constitutionally justified.

 


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