//  6/7/18  //  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.   

In their thoughtful new book, To End A Presidency: The Power of Impeachment, constitutional law scholars Laurence Tribe and Joshua Matz provide a careful and admirably judicious exploration of the legal, political, and historical dimensions of impeachment.  The book is both timely—speaking to the current concerns about potential presidential corruption and overreach—and timeless—framing these issues in a broader context of the law and politics of our constitutional democracy. There is a wealth of information, analysis, and nuance in the book, from discussions of the debates over the meaning of the “high crimes and misdemeanors” standard to a rich accounting of the Congressional processes of impeachment and much more. 

In this post, however, I would like to focus on a different theme in the book: its overriding sense of caution. Impeachment, Tribe and Matz warn, is both a vital backstop measure to preserve a democratic republic, and yet it is also an exceedingly limited and dangerous tool to deploy. Early on in the preface, the authors warn that impeachment may ironically be most necessarily precisely when it is the most dangerous and hardest to pull off, in a moment of deep political discord and genuine democratic crisis (xx). This points to an important theme in the book. Insofar as we believe that American democracy is facing a larger set of pressures related to but extending beyond the dangers of Executive power and overreach, it becomes increasingly doubtful that impeachment is the appropriate mechanism for resolving these crises of democracy—even if it should seem warranted.

Tribe and Matz’s book is really a story with two villains. First, there is the headline concern with how a constitutional system can restrain a demagogue, the potential tyrant, the corrupt Executive who can deliver uniquely destructive damage on the polity by virtues of the very powers of the presidency itself. This may be the question that draws most readers to the book in the first place. But by the end of the book it is clear that there is a second villain in the story as well: not the fear of the tyrant, but the fear of an overly-weaponized impeachment tool that can exert its own destructive force on the polity. By the end of the book, the authors warn explicitly of the dangers of “fantastical thinking about impeachment’s potential” (233). The danger here arises from the proliferation of impeachment-talk itself, the false appeal of a short-circuit solution to political conflicts that bypasses the hard work of rebuilding democratic institutions.

Thus, some of the most compelling passages in Tribe and Matz’ account arise in context of decisions not to invoke the impeachment concept—contrasted with moments of failed or improper use of impeachment. “Invoking impeachment in ways that destabilize democracy,” warn Tribe and Matz, is “perverse and profoundly irresponsible” (240). Nixon’s attempt to destroy the Warren Court by scaring up impeachment proceedings against Justice William Douglas (25-6) is a good example of the abuse of the impeachment power. The tradeoff, however, is that some kinds of Executive misconduct will simply to harder to punish, given how powerful and blunt the impeachment tool is in practice. Indeed, the authors are careful to acknowledge throughout that impeachment simply cannot be counted on as the vehicle for full Executive accountability. “Nearly every president has used power in illegal ways” (17), yet impeachment is particularly limited for when it is “purely partisan or appears that way, it is presumptively illegitimate” (139). Examples of Congressional leaders choosing not to impeach abound in the book, framed as largely correct decisions for the body politic, but at the (arguably quite high) cost of diminished accountability for very real cases of Presidential overreach. We read in the book about Democratic Speaker Tip O’Neill’s private promise to Ronald Reagan taking impeachment off the table in the Iran-Contra scandal, out of a concern for the still-fresh wounds of Watergate (146-7), or about Nancy Pelosi’s similar decision to fight off calls for impeaching George W. Bush over the Iraq war and the massive expansion of the surveillance state (180).

By the later chapters of the book it is clear that in addition to the dangers posed by the potentially overreaching Executive itself, there is another very real danger as well, and that is the rise of the “permanent impeachment campaign” (184). As Tribe and Matz note, since the Clinton era, unlike previous eras of American politics, “impeachment talk” has become an increasingly prevalent, and increasingly partisan point of discussion: conservatives invoking it against Clinton and Obama, liberals against G. W. Bush, and now Trump. More troublingly, the authors rightly raise concern about the fact that the 2016 campaign involved open threats of future impeachment against whoever won the election (185). In an era of increasing polarization and gridlock, the authors warn, it seems likely that “impeachment talk is here to stay” (215).

Successful impeachment, Tribe and Matz suggest, requires an upsurge of collective civic engagement and consensus. “The Constitution places a life-or-death bet on the American people and their representatives,” they write. “It gambles that presidential misconduct risking grave harm to the nation will arouse unified popular opposition so strong that it prevails over partisanship, personal loyalty, and political inertia” (198-9). But if purely (or apparently) partisan impeachment is presumptively illegitimate as Tribe and Matz argue, this then suggests that as impeachment talk becomes more prevalent, it also creates a legal and political void, a gap where impeachment is effectively impossible without raising very real dangers of political conflict and allegedly improper use of the impeachment tool, even in the face of potentially impeachable conduct. The zone of Executive unaccountability, evidenced by the avoidance of impeachment in scandals like Iran-Contra, may thus be growing wider.

As Tribe and Matz note, American democracy is already significantly hobbled. The combination of polarization, media echo chambers, partisan gerrymandering, the dominance of ‘dark money’ donors, gridlock, and the decline of trust in political institutions all create a political environment that may be too brittle to sustain the kind of collective agreement needed to sustain impeachment politics. This brittleness therefore means that a hypothetical strategic Executive facing potential impeachment can deliberately magnify these dynamics on purpose to make the politics of impeachment so explosive as to make it highly improbable. Thus “the impeachment power may fail in its essential purpose if an abusive or corrupt president successfully undermines the political preconditions for exercising it” (199).

This fear about the proliferation of impeachment talk and its dangers points to a final, critical subtext of Tribe and Matz’ cautious warnings about the dangers of impeachment and impeachment talk. Broken political institutions means that impeachment talk is likely to persist precisely because of this broader sense that we the people are no longer really in control of our own polity.  The proliferation of impeachment talk reflects a powerful (and accurate) loss of faith in more conventional forms of accountability: voting, public opinion, the separation of powers. These concerns are absolutely justified. Our political institutions are deeply compromised, and have been for a long time—through voter suppression, donor influence, media machines that increasingly align with one or another party, and the systemic political distortions arising from racial and economic inequalities, to name just a few. 

As Tribe and Matz very rightly suggest, impeachment is not the solution to this larger crisis of democratic accountability. “There is no Deus Ex Machina Clause in the Constitution,” Tribe and Matz write (234).  They close the book with a telling call to action: “We must abandon fantasies that the impeachment power will swoop in and save us from destruction. It can’t and it won’t. When our democracy is threatened from within we must save it ourselves” (240). In context of our larger public and legal debate today, Tribe and Matz’ book thus functions as a critical bridge: meeting “impeachment talkers” where they are, but gradually bringing them to a very different set of conclusions: that the deeper solutions to our concerns about Executive power and democratic failure more broadly lie not in impeachment but in the more challenging and far-reaching work of rebuilding those very foundational democratic institutions and practices in the first place.

If not impeachment then what? Part of the response to our broader concerns about democratic accountability and responsiveness has to be trans-substantive, a rebuilding of shared norms of democratic conduct and rebuilding of cross-partisan democratic institutions. But I would also argue that part of the longer-term solution to our crisis of democracy necessarily has to involve a reckoning with the deep substantive conflicts that have helped fuel the rise of Trump and the erosion of democratic institutions. Indeed, Trump’s race-baiting is central to his appeal, and to the very real sense of fear and danger his administration engenders among many communities. The dominance in this administration of a particularly flagrant form of plutocratic corruption—whether in the debates over Trump’s business dealings or in the industry influence over agencies like the EPA—can obscure more “routine” policy shifts that nevertheless are devastating to ordinary Americans trying to secure access to healthcare or protections in the workplace. The point is that our democracy didn’t just “break”; it was broken, out of the accumulation of efforts to magnify inequality and increase economic returns for the top earners; out of efforts to reassert racial and gender hierarchies after important moments of progress; out of efforts by interest groups to dismantle not just the policies of the Obama era but the New Deal compact itself.

Tribe and Matz mostly avoid delving too deeply into these questions, and rightly so. The power of their book stems from its focus on impeachment in all its dimensions. But if their caution about impeachment’s efficacy in an era of broken politics is warranted (and I think it is), then that suggests that the hard work of saving the republic turns not on an exotic legal procedure but on the mundane, yet high-stakes work of politics itself: of mobilizing for elections to assure checks and balances of divided government; of persuasion and organizing to forge new narratives and coalitions that can bypass the swirling misinformation and partisan bickering of the press; of rebuilding institutions of public service to be more inclusive, legitimate, accountable and effective; of building new forms of bottom-up civic power capable of providing a countervailing to the otherwise disparate influence of donors, interest groups, and economic elites.

In previous moments of crisis, from the Great Depression to the Civil Rights movement, it is this on-the-ground work of building movements, institutions, and new narratives that renewed American democracy.  Impeachment is not the answer. But as Tribe and Matz suggest, the answers that can drive the hard work of rebuilding democracy relies lies in the very thing that our constitution—and any democracy—depends on: we the people.

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