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
I recently uploaded an article on SSRN (to be published in Constitutional
Commentary) that is skeptical of the use of “historical practice” to
understand constitutional changes in executive power.This gives me something of a problem in understanding Trump’s impeachment and trial as a “precedent.”Indeed, the Trump impeachment shows that our
understanding of how precedent and practice works in the “Constitution outside
the courts” is heavily dependent on the construction of historical memory.And there’s been all sorts of misremembering
going on in the Trump impeachment.
You may recall that Andrew Johnson’s acquittal led to a precedent that
presidents may obstruct a congressional program enacted over his repeated
vetoes.Actually, however, Johnson sent
signals during the trial that he would back off.One historian describes Johnson as “frightened”
by the impeachment and Reconstruction went forward in 1868, an election year,
unimpeded by further presidential resistance.
That may sound like a reasonable enough summary, but essentially the
opposite is being urged by those who think it obvious what precedent is set by
the Trump impeachment.That is, some
might think it obvious that Trump is empowered by an acquittal.But the truth is it depends on us and what we
make of the impeachment in this constitutional moment.Or perhaps more precisely, it depends on how
our institutions respond.
Along this same line, you may remember Watergate as a precedent for the
chastening of presidential power.But
certain influential Republicans, including Dick Cheney (then serving in the
Ford White House) and current Attorney General Bill Barr regarded it as a
disaster for the proper understanding of the role of the executive.They worked for years to reverse this common understanding
of the 1970s, and they had plenty of help.If, then, Watergate counts as a “precedent,” what made it such?
As far as the Clinton impeachment, one prominent commentator still
opining on impeachment today literally thought it was a precedent for a president to
commit a felony in office (!) as long as it did not relate to his official
duties.But it is clear if you study the
Clinton impeachment that if censure had been allowed (perhaps similar to what
might have happened to Trump had censure been offered as an option), Clinton
would have been rebuked on a bipartisan basis, arguably giving censure more
institutional heft than the impeachment process.In any case, I’m not aware of any presidents
or their advisers since the Clinton impeachment who viewed it in that
light.They are aware that Clinton took
a huge political hit which impaired his ability to accomplish the extensive
policy agenda he wanted to advance after he was reelected.
In assessing the precedential meaning of the Trump impeachment, we need
to get used to the idea that presidential impeachments happen so seldom that
the past is not necessarily a useful guide.Nevertheless, I do think there is a good case that some precedents were
set by past impeachments.The key is to
realize that when we are talking about informal constitutional change outside
the courts, historical practice or precedent is set not through mere assertion or
what some think is the obvious meaning of certain events, but through a process
of institutionalization or state building.In the Johnson impeachment, for example, substantial criticism was
directed at the Tenure of Office Act.This point was taken up consistently by subsequent presidents, the Act
was repealed, and then laid to rest by Chief Justice Taft in the Myers
case.This is a good example of howinstitutionalization works, although partly inside the courts.Despite the views of Cheney and Barr, the
same holds true for Watergate.Congress
passed laws like the War Powers Resolution, the National Emergencies Act, and
the Congressional Budget and Impoundment Control Act that are still relevant
today, whatever their merits (or need for reform).
Focusing on institutionalization directs us to one relatively unique
aspect of the Trump impeachment – the House of Representatives was on its
own.
In both the Nixon and Clinton
impeachments, the House managers got substantial assistance from a special
prosecutor. Some people think the House
could have won more help from the courts, but this was pure speculation. One of the biggest canards of the Trump
impeachment was the idea that when the House is stymied by the White House, it
should go to court. But the ranks of
federal court decisions with respect to what happens in the case of a conflict
between executive privilege and Congress (as opposed to a conflict with the
courts, as in US v. Nixon) are extremely thin. That’s because in the past Congress and the
White House worked out an accommodation.
That wasn’t possible this time, of course. And it was never clear that the House would
emerge victorious in the end. And why
should the investigative power of the House be dependent on the courts
anyway? That sounds like a backwards
understanding of separation of powers. But
the rejection of the second article of impeachment might be taken this way by
the courts in the future. Keith
Whittington properly sounded the alarm here.
That would indeed be a terrible precedent, but one that may well be
institutionalized by over-eager judges.
By contrast, I think it unlikely that Trump’s acquittal could somehow
institutionalize the understanding that leveraging a relationship with a
foreign power to influence a US election is appropriate.Just as no one really defended Andrew Johnson’s
opposition to Congress’s Reconstruction policy, no one defended Trump on this
score.Republicans in fact drew back
from some of Alan Dershowitz’s more extreme assertions along this line.So I am less worried about precedents being
set with respect to Article One.Maybe
one lesson we should absorb is that law school professors with a criminal
defense background are relatively poor guides to the momentous separation of
powers stakes always present in a presidential impeachment.