//  12/12/18  //  In-Depth Analysis

Earlier today, my Harvard Law School colleague Cass Sunstein published an essay entitled, "When Impeachment is Mandatory." He was kind enough to share it with me. Reflecting on the question in light of my book with Joshua MatzI wrote him the response that follows. At his suggestion, I decided to publish it:

Thanks for sharing this, Cass. I thought your book was terrific too, and you know how much I respect your views. It follows that any significant disagreement between us always makes me rethink my views. So when I saw your piece on “When Impeachment Is Mandatory,” I paused to consider your argument afresh.

Needless to say, the issue isn’t about whether there’s a judicially enforceable duty to impeach in specifiable circumstances. Of course you’re not suggesting that there is a duty that courts could properly enforce – any more than Joshua Matz or I would suggest that, just because “courts will not get involved,” elected officials don’t have a “solemn duty to the Constitution, which they are sworn to uphold.” They no doubt have every bit as solemn a duty to uphold the Constitution as does the President and as do all judges and other public officials. Thus our disagreement must lie elsewhere.

In searching for the source of the disagreement, it’s also important to set aside the question whether impeachability is a purely political matter, as Gerald Ford famously (if foolishly) said it was and as many continue quite mindlessly to repeat. As you know, Joshua Matz and I aren’t among those who treat impeachment as a purely political question rather than one of law; like you, I view Art. II, Sec. 4 as setting out a legal standard, one my book with Joshua explores in some detail.

On the question whether that legal standard makes impeachment constitutionally mandatory whenever the standard is met -- and (presumably) also makes conviction mandatory whenever the requisite number of Senators agrees that the standard was indeed met -- we do have a difference, but it's less stark than someone reading your opinion piece might suppose.

For starters, I certainly don’t believe, and our book doesn’t suggest, that the House is entitled to say “he’s doing a great job, so we’ll let it pass,” or “sure, he’s a bum, but he’s our bum.” Discretion can, we all realize, be abused. To argue that the Constitution leaves a measure of discretion with the House isn’t to deny that failure to impeach can ever represent an abuse of that discretion or that there might be cases of presidential offenses against the republic so clear and so threatening to the nation that no discretion remains.

On the contrary, at p.71 of "To End A Presidency," we write "The better view is that legislators have long recognized their own discretion, except perhaps in the most extreme cases."

So our book doesn’t deny, and speaking for myself I wouldn’t think of denying, that there are cases in which the House must proceed to impeach, just as you aren’t denying that there are “hard cases” in which “members of the House of Representatives are entitled to exercise their judgment.” In all likelihood, the main practical difference between your view and ours is that the cases in which we would defend a decision by the House not to refer a president for an impeachment trial in the Senate notwithstanding the commission of an impeachable offense are cases in which you might say the Constitution didn’t “speak unambiguously” enough to make a House decision against impeachment a dereliction of constitutional duty.

One place where our divergent formulations could matter considerably would involve the relation between how the House ought to act and how the Senate might be expected to act. Your position, I take it, would be that the Constitution demands that the House pay no attention at all, in cases where a majority believes that impeachable offenses have been committed and would otherwise vote to impeach, to the odds that the Senate would (for whatever mix of partisan or principled reasons) vote to acquit and thereby perhaps increase the danger posed by the renegade president to the republic. My own view is that a prognosis of what the Senate might do, which would often be premature or unduly speculative or both, should not be deemed decisive, given the “sole power of impeachment” reposed in the House, but that treating that prognosis as one the Constitution forbids the House even to consider is unjustifiable. Among other things, there will surely be cases in which a House member properly thinks, “What I’m quite sure this guy did is what I’m persuaded is an impeachable offense, and it looks like a majority of the House would agree, but I don’t consider myself or my colleagues infallible, and it matters to me that less than half the public has been convinced there was any abuse that serious, that beliefs on this issue haven’t become meaningfully bipartisan, and that voting my personal beliefs on this one in the face of what looks like certain acquittal in the Senate would only make matters worse for everyone, including by making nearly fifty million people feel disenfranchised.”

On the substance of whatever difference we have, I’d note that Joshua and I defend the view that the House has some discretion in the matter (pp. 69-108) in both textual (e.g., pp. 77-78) and historical terms (e.g., pp. 71-74); argue that "Congress must take the lead in ending an abusive presidency" (p.108); and by no means rest entirely, or even very heavily, on the analogy between impeachment and criminal prosecution that you say "doesn't work." To the degree you seem to imply that, if that analogy doesn’t work, we’re wrong, I would respectfully disagree. We do explain why prosecutors offer an analogy superior to that of grand juries "if the criminal justice system is to be our reference point" (p.79), but throughout our book we, like you, hesitate to use the criminal justice system as a point of reference, strongly disagreeing with those, like Alan Dershowitz (and our colleague Niko Bowie), who insist that only federal crimes may be impeachable offenses.

Indeed, we note that "discretion takes on a very different cast in the realm of impeachment than in standard criminal cases" (p.79), not just because resource allocation takes on a different meaning in the two contexts but also because "rarely will a single prosecutorial decision risk catastrophic harm" (id.) – a consideration that, if anything, cuts in favor of treating a decision to impeach as less tightly linked to the existence or nonexistence of an impeachable offense than a decision to prosecute is linked to the existence or nonexistence of a crime.

Your statement that "prosecutors must exercise their judgment in order to ensure that the awesome power of the criminal law is used appropriately" seems to me, if anything, to cut the other way: yes, the House "is not threatening anyone with a jail sentence," but I would think it pretty obvious that, while "a single prosecutorial decision" will rarely "risk catastrophic harm" (p.79), "a single decision to impeach the president -- or not to impeach him -- could have extraordinary consequences" (id.), no less extraordinary if that decision triggers a full-blown Senate trial of the nation's highest official than if it triggers a sentence of imprisonment. And, since your view about the mandatory character of the impeachment decision presumably carries over into the decision to convict if indeed the Senate agrees that the House has properly charged an impeachable offense and that the president is guilty of having committed it, your focus on the relatively limited consequences of a decision by the House to impeach needs to be broadened to encompass the overwhelming consequences of a decision by the Senate to convict.

Another point seems worth making in light of your noting how prosecutors are “faced with limited budgets and many potential targets.” Congress, too, has finite resources, reflected less in the financial costs of an impeachment trial in the Senate – a “grand inquest of the nation,” as some have called it – than in the political costs to the government and nation as a whole. Even the arguably dysfunctional Houses of Congress can presumably walk and chew gum at the same time, but that institution, like every other, has to cope with attention-management issues and must take into account what a matter as grave as an impeachment proceeding, particularly one that can be said from the outset to be extremely unlikely to remove an abusive president, would mean for the ability of Congress to get anything else done and for the ability of the body politic to absorb yet another shock to the midsection.

At the end of the day, I suppose the main significance of the gap between how you put the matter and how I put it is political, even though the impeachment debate itself is largely legal.

The question is this: What will be the impact, once the 116th Congress is sworn in, of scholars like you or me saying ex ante that it would (or that it wouldn’t) be “a dereliction of constitutional duty, a violation of the oath of office, and a shameful betrayal of the principles for which the American revolution was fought” for the House Judiciary Committee under the chairmanship of Jerry Nadler not to vote for articles of impeachment at some point next year?

One realistic view might be that nobody of political significance cares much what either of us says about that matter. Another, and I hope equally realistic, view is that the answer can’t be offered in advance but instead depends almost entirely on facts of which both you and I are necessarily ignorant at the moment. If the evidence proves compelling that Trump won office by means of a felonious conspiracy to deceive the voting public, or a conspiracy with the Kremlin of the sort I personally suspect may well be provable, and/or if it becomes clear that Trump engaged in systematic efforts to prevent the discovery of that evidence or its pursuit in official DOJ or congressional investigations, then I can’t imagine either of us failing to voice strong support for articles of impeachment or failing to criticize the House in constitutional terms and not just prudential terms for not supporting such articles.

How free either of us will feel at that point to couch our critique in terms of constitutional betrayal might be affected slightly, but only slightly, by what you’ve written here or in your book, or by what Joshua and I have written in our book and what I’ve said in the interim.

Epilogue:  I've just seen this post by Marty Lederman at Just Security, in which Marty disagrees with Cass and agrees with me and Joshua regarding congressional discretion on matters of impeachment.

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