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
Is the American Constitution's system for presidential impeachment good or bad constitutional design? Do the Constitution's provisions actually serve their intended purposes? The Trump impeachment trial adds one more data point to a very small number of cases.
If the purpose of impeachment is to remove a president who has abused his power, acted corruptly, or engaged in high crimes and misdemeanors, the Constitution's system for impeachment is a failure. The reason is the emergence of a political party system that the Framers did not expect or intend.
The effects of party control and polarization on impeachment
If the president's party controls the House of Representatives, impeachment is very unlikely. It is no accident that to date all impeachments (involving Johnson, Clinton, Trump, and Nixon's resignation) have occurred when the President's party did not control the House (Andrew Johnson was a Union Democrat who found himself president after Lincoln's assassination, and faced off against a Republican-controlled Congress). If the President's party does control the House--a very common occurrence in American history--impeachment is essentially off the table, and so it will not perform the function that the framers assigned to it.
Even if the House does impeach a president, it still takes a two-thirds vote in the Senate to remove him. If the president has a majority of co-partisans in the Senate--or even close to a majority--and politics is highly polarized, as it now is, the president cannot be removed, no matter how badly he acts.
Richard Nixon's case is instructive. His is the one example where the system appeared to work as the framers designed. Nixon clearly deserved impeachment. He was a criminal who abused his power as president. He was forced to resign when members of his own party encouraged him to go. Unlike today, however, 1974 was still a relatively nonpolarized environment. Our current wave of polarization began in the late 1960s following the passage of the Voting Rights Act, but it did not become a significant force in congressional politics until many years later, in the 1990s. Equally important, Republicans controlled only 43 seats in 1974 (42 Republicans plus one Conservative Senator); today they control 53.
Even in the relatively nonpolarized environment of 1974, Nixon's party still did not abandon him until the Supreme Court ordered him to hand over the Watergate Tapes, which provided conclusive evidence of his crimes. If the Watergate Scandal had occurred in today's America, Nixon would have had the advantages of a highly polarized (and loyal) Republican Party, a Senate majority afraid to cross him, and a devoted conservative media apparatus. (He would also have had the benefit of a conservative Supreme Court majority ideologically predisposed to protect presidential prerogatives.) In other words, if Nixon had today's Republican Party and Fox News, he probably would have survived.
There are multiple reasons to think that the Constitution's system for impeachment will fail in a highly polarized politics. A strongly polarized environment encourages partisan loyalty and epistemic closure. It undermines trust between the two parties, each of whom believes that the other party cannot be trusted with power. Because removal of a president would give the hated opposition a decisive political victory, and undermine the party's electoral chances going forward, senators from the president's party have good reasons to keep the president in power even if they know that he is unfit for office. Losing is not an option, and so one must cling to power at all costs.
In addition, in a highly polarized environment, senators from the president's party have good reasons to fear that they will be disciplined electorally by the president's political allies and by the party's base of voters. In the current context, Republican senators know that they will immediately face an onslaught of attacks from conservative media and that many sources of campaign funding will dry up. A primary challenge is highly likely. President Trump has successfully sidelined congressional and Senate Republicans like Jeff Flake who dared to criticize him openly. They were either defeated in primaries or retired. Accordingly, the remainder of his party in Congress has learned that it is prudent to be either silent and obedient or openly sycophantic. In a period of high polarization, voting to remove your own party's president is an act of political suicide.
Impeachment does not remove demagogues
The Trump Presidency also suggests that the Constitution's system for impeachment and removal will fail us precisely when we need it most. Trump is a demagogue-- the type of leader that the framers feared. However, the kind of political environment that makes it possible for a demagogue to rise to power is also likely to be highly polarized, making impeachment ineffective.
Demagogues threaten the survival of democracies because they undermine democratic norms and culture. They are also likely to be deeply corrupt and a corrupting influence on republics. But successful demagogues are also likely to have devoted followings. Therefore they are able to impose discipline over their followers and co-partisans, who will follow the leader even when he is obviously corrupt. We have seen the unfortunate results of this kind of demagogic politics in the Trump impeachment proceedings.
In addition, demagogues like Trump thrive on polarization and they do their best to make it even worse. Thus, they are protected by and exacerbate the political conditions in which the impeachment power is least effective.
This means that the impeachment process is most likely to fail at its constitutional purposes when American democracy is threatened by a corrupt and demagogic president who can demand complete loyalty from the members of his party. In fact, the more devious, demagogic, and shameless the president, the more insulated he may be from removal. That is because of the way the party system operates in highly polarized times.
Another possible function of impeachment
I began this post with the assumption that the constitutional purpose of impeachment is to remove a president who abuses his power or engages in high crimes and misdemeanors. For reasons I have described, the system is not well designed for this task, and it is least effective when it is most needed.
But impeachment might serve other functions. One function of impeachment might be to undermine the president's party's chances of keeping the White House in the next election. Again, we have only a small number of data points to work with. Nevertheless, the Nixon impeachment likely undermined Gerald Ford's ability to win in 1976 (especially because Ford pardoned Nixon); and the Clinton impeachment probably was a drag on Democratic votes in 2000 because it greatly complicated Al Gore's electoral strategy. He could not easily run as the third term of the Clinton Presidency while still distancing himself from Clinton.
According to this view, it is worth it for the Democrats in Congress to offer as strong case for Trump's impeachment as possible. Showing the American people that Trump has abused his power and committed high crimes and misdemeanors will not by itself remove Trump from office, but it will help undermine his chances for reelection. Put another way, every impeachment has two juries-- the first one is the Senate; the second one is the public in the next election.
It has long been assumed that impeachment proceedings against Trump made little sense when the election is less than a year away. But based on the history of the Nixon and Clinton impeachments, this might be a good time to pursue an impeachment. Everything turns on whether one can successfully use the impeachment process to influence public opinion, and convince just enough people that the party in power cannot be trusted.
Of course, impeachment could have exactly the opposite effect. Trump may use his acquittal-- and his assertion that he has been persecuted by the Democrats and the deep state--as a way to motivate his base. In contrast to Nixon and Clinton, Trump will also be the first president in American history to be impeached and then immediately stand for reelection. So we don't know if impeaching a president weakens his party's chances at staying in power under these circumstances. But if it does, then impeachment might still serve a useful function, just one that the framers did not expect.