//  6/11/18  //  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.   

One of my favorite cases to teach in Federal Courts is Nixon. No, not that one. Or that one, either. The Nixon case that I love teaching is the case of Walter L. Nixon, Jr. (no relation), the former Chief Judge of the U.S. District Court for the Southern District of Mississippi. After Judge Nixon was convicted of making false statements before a federal grand jury and sentenced to prison, he refused to resign his commission—leading to his impeachment by the House and his removal by the Senate (which conducted much of the trial through a specially appointed committee). Nixon, the seventh of eight federal judges in American history to suffer this ignominious fate, brought suit challenging the means by which the Senate had conducted his trial. In his view, the Constitution required that his trial be conducted by the full Senate, and the Senate’s failure to do so rendered its judgment null and void.

What makes Nixon such a fun case to teach is that, although the Supreme Court unanimously rejected Nixon’s suit, the Justices disagreed in pedagogically useful ways as to why. Writing for a six-Justice majority, Chief Justice Rehnquist (who had just published a book about—and would soon develop more personal experience with—impeachment trials) held that Nixon’s suit presented a categorically non-justiciable “political question”—and that, as a general proposition, the federal courts have virtually no role to play in reviewing the means by which the House and Senate conduct impeachment and removal proceedings. (Rehnquist left open the possibility that departures from the Constitution’s express procedural requirements might be reviewable.) Indeed, although Nixon was only about a federal judge, Chief Justice Rehnquist expressly invoked the specter of a President repairing to the federal courts to challenge his impeachment and removal—and the constitutional crisis such litigation would surely provoke—as a reason to forswear even a deferential judicial role in such cases.

In separate opinions concurring in the judgment, Justices White and Souter took a narrower view. Yes, they both agreed, there was no reason for the courts to set aside the Senate’s judgment in Nixon’s case, because there was no serious argument that the Constitution required every Senator to participate in every step of the impeachment trial. But if the Senate so radically departed from settled norms of fairness—if, as Justice Souter posited, it convicted Nixon “upon a coin toss”—both Justices (and Justice Blackmun, who joined Justice White) thought the courts could, and would intercede. In the process, the difference between the majority and concurring opinions in Nixon is representative of the core dispute over the political question doctrine—whether it is a categorical, jurisdictional constraint on the courts, or merely a reflection of prudential understandings of the proper judicial role.

I say all of this because, as I made my way through Tribe and Matz’s lucid (and lurid) book, I couldn’t help but thinking about why impeachment feels so different from many of our other major constitutional controversies. It’s not the rarity of the thing; 19 different federal judges and executive branch officers have been impeached by the House of Representatives in American history. We’ve declared war just over half as many times; suspended habeas corpus fewer than one-fourth as often; and had two presidential elections decided by the House (and a third by a commission created by Congress).

Nor is the uniqueness of impeachment traceable to the ever-ongoing debate over what acts do, or should, constitute “high crimes and misdemeanors”; there are plenty of other examples of critical constitutional text that is at least as (if not more) ambiguous. Instead, what makes impeachment unique is the confluence of a crucial feature of the constitutional checks and balances, ambiguous constitutional text, and the complete disenfranchisement of the institution that generally gets the last word in such circumstances—the Supreme Court.

Don’t get me wrong: I’m far more partial to Justice White’s concurring opinion in Nixon than I am to Chief Justice Rehnquist’s opinion for the Court. Indeed, I have a hard time believing that, had the Senate really decided Judge Nixon’s fate on a coin toss, six of the nine Justices would have been so convinced that there was nothing the courts could do to push back. But so long as it’s the Nixon majority opinion that controls (and there’s no reason to think that’s changing anytime soon), the result is to categorically deprive the federal courts, and the Supreme Court in particular, of any direct role in bringing a presidency to an end. (The Chief Justice, of course, would preside over the Senate if the President were to be impeached.) That’s why, in a book about constitutional law and politics, there are so few references to the federal courts (and the Supreme Court, in particular); any judicial role in giving meaning to the Constitution’s text vis-à-vis impeachment ends at the steps of the Capitol.

Impeachment, then, is a two-branch ballgame. And that’s why this book is at once so critical and so jarring. If Tribe and Matz are correct that impeachment is, for all intents and purposes, a “non-starter” when one party controls the House and the presidency (to say nothing of a majority, or even 34 seats, in the Senate), then it suggests that there is, in fact, nothing that can be done to a President whose sins are accepted as a matter of fact by the members of the opposite party, and tolerated even by those members of his party who agree that they are sins.

I’m somewhat more sanguine on this score than Tribe and Matz—not because the current political climate gives me any reason to believe that fidelity to institutional principles will generally trump tribal loyalty, but because I believe, or at least hope, that the current climate is aberrational. And if there was some mechanism by which this (or some future President’s) partisans could become convinced that he had, in fact, engaged in conduct worthy of at least an impeachment discussion, then presumably it would behoove all of us to do whatever we could to protect and embrace that mechanism.

Enter, once again, the federal courts. Nixon holds that federal courts can’t play a role in reviewing how impeachment proceedings are conducted. But that doesn’t mean that they have no role to play in protecting the separation of powers along the road to impeachment. That is to say, the higher the apparent political bar to Congress’s exercise of its unique constitutional impeachment authority, perhaps the more the federal courts ought to err, in close cases, on the side of enabling investigations that could help create unassailable public records of misconduct (or, in the other direction, that could unassailably clear the relevant officials). After all, courts are often asked to enforce congressional or prosecutorial subpoenas against senior Executive Branch officials; courts may soon be asked to protect the existing “good cause” constraint on the removal of officials like the Special Counsel; and courts could be pushed to narrowly construe the scope of those privileges and immunities that might otherwise be deployed to frustrate such investigations.

For those, then, who come away from Tribe and Matz’s book trying to figure out how we can “fix” the dysfunction they diagnose, it seems to me that one place to start is to think more carefully about the role that federal courts can and should play at earlier stages of what may (and may not) become impeachment investigations—even if the other, other Nixon case pretermits any meaningful role thereafter. Given the lack of trust most Americans have in the political branches (especially when the “other” side is in charge), it seems like we ought to spend more time talking about how to effectively involve the one branch that might actually be worthy of (more) trust.

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