Wednesday, February 05, 2020

The Trump Impeachment as a "Precedent"

Stephen Griffin

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 how institutionalization 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.

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