E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The
Trump administration is in a personal/personnel crisis, driven by the fact that
apparently Trump can’t work with anyone and few people really want to work for
him. Especially people with law degrees. It is telling that Trump appears to be having
the worst time with lawyers that he obviously thinks should be responsive only
to him: Sally Yates (fired), James Comey (fired), Dan Coats (not fired yet)
and, yes, even AG Jeff Sessions (offered to resign). It seems lawyers keep telling Trump that they
have an independent responsibility to something other than him and it’s pretty
clearly hard for him to hear that (note for later – is that advice
really compatible with the unitary executive theory?).
Trump’s
legal troubles have led to talk of impeachment.
I recommend Michael Gerhardt’s recent WaPo piece on how impeachment was
meant by the Framers as a last resort, but I also feel compelled to remind
everyone of a few relevant historical facts Mike didn’t mention. Consider that no president has ever been
threatened with impeachment by a Congress controlled by members of his own
party. Further, although Andrew Johnson and
possibly John Tyler are special cases, there has never been a serious effort to
impeach and convict a president during his first term (certainly not in the
twentieth century). The Johnson
(arguably), Nixon, and Clinton impeachments all occurred in second terms. Finally, there has obviously never been an
impeachment this soon after a presidential election. Whatever you think of Trump, he is operating
in a fundamentally permissive environment created by his unexpected victory,
Republican control of Congress, and the continuing relevance of the Tea Party
in pulling Republicans further right, especially in the House.
These
historical notes suggest that impeachment is not a realistic remedy no matter
what Trump does, at least until after the 2018 congressional elections. So I’m afraid things are going to get worse before
they get better. Especially in foreign
policy, Congress has few means available to check Trump. This will not stop reporters from asking
whether Trump’s conduct satisfies the standard for impeachment, but I hope it
serves it illustrate why we might think this is the wrong question. The right question is what political (not
legal) circumstances would induce Congress to impeach Trump and probably only a
total collapse of his popular support would suffice. In this regard, it should be kept in mind
that although many see the Nixon impeachment effort as based on a popular
consensus, even at the end, after the release of the “smoking gun” tape, Nixon
retained the support of at least a quarter of the American public. As far as I can recall, this support was not
evenly distributed around the country, meaning some states (and thus
congressional delegations) still had majorities for Nixon until the bitter
end (although he certainly would have been impeached and convicted had he not resigned). And it is worth bearing in mind that some prominent Republicans, Ronald
Reagan for example, never accepted the legitimacy of the impeachment
effort. Impeachments are inevitably
divisive.
As
for the impeachment standard of “high crimes and misdemeanors,” it’s
interesting that so many are assuming it can be met only if it is proven that
President Trump committed a crime. There’s
plenty of historical evidence that the framers did not mean it to be so
confined. Charles Black argued during
Watergate that presidents could engage in conduct (such as refusing to carry
out their responsibilities) that would clearly be impeachable yet would violate
no law. But in each presidential
impeachment, the president’s defenders have argued successfully that presidents
can only be impeached and convicted for a violation of the criminal law. This is surely an interesting and practically
relevant example of informal constitutional change in action.