Balkinization: Impeachment 101

Impeachment 101

Stephen Griffin

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.

Posted 11:50 AM by Stephen Griffin [link]