Balkinization: Bad Seeds and Tips of the Iceberg

Bad Seeds and Tips of the Iceberg

Andrew Coan

Constitutional remedies for presidential misconduct must account for two broad types: bad seeds and tips of the iceberg. Bad seeds flout widely shared norms accepted across party lines. Tips of the iceberg engage in similar conduct but enjoy the enthusiastic support of their party, not despite but because of their pathological character. As this description implies, the distinction lies more in political context than in the two types of presidents themselves.

Bad seeds pose a serious but relatively tractable problem of constitutional design. Their pathological conduct is unrepresentative of their party and, eventually, repudiated by it. Bad seeds can therefore be removed or disqualified from office without great upset. No party feels disenfranchised because no party, in the end, supports a bad seed.

Tips of the iceberg pose much greater difficulties. Their pathologies are not aberrations but reflections of their party’s core identity. Removing or disqualifying them from office effectively precludes their party from pursuing its goals through the electoral process. In an environment pervaded by negative polarization and viral misinformation, these thwarted political energies may well express themselves in violence.

With the necessary caveats about stylized typologies, Richard Nixon was a bad seed. Donald Trump is the tip of an iceberg. Unsurprisingly, impeachment worked better for the former than the latter.

This does not mean that Democrats were wrong to impeach Trump, either the first time or the second. It can be risky to remove a tip-of-the-iceberg president, but it may be riskier to leave one in office—or eligible to wreak havoc again in four years. Even an unsuccessful impeachment might have political benefits, and it is always possible that the impeachment process itself will turn the tip of an iceberg into a bad seed. These are genuinely difficult judgment calls.

In any case, the supermajority requirement for Senate conviction makes removal and disqualification of a tip of the iceberg effectively impossible under the current rules. Over the last four years, many commentators have lamented this fact. But the supermajority rule has more to recommend it than these critics have appreciated. At a minimum, any evaluation of that rule must seriously consider how a president’s supporters might react to a narrowly partisan removal or disqualification.

The events of January 6 were a chilling reminder of what happens when a large fraction of the country loses faith in the ability of elections to fairly and peacefully settle political disagreement. This is what makes Trump’s lies about the election so dangerous. Ironically, a party-line removal or disqualification of a tip-of-the-iceberg president might inspire a similar disillusionment with electoral politics and consequent turn to violence.

This is not in any way to excuse Trump’s enablers, inside or outside the government. It is their support that makes Trump the tip of an iceberg, rather than a bad seed, and the country is much worse off as a result. But taking that support as given, it is not at all clear that a system which permitted Trump’s removal or disqualification by a razor-thin partisan vote would serve the country better—in this particular case or in general. The same observation applies, with the necessary changes, to Section Three and the Twenty-Fifth Amendment.

In sum, widespread political support, whether well or ill-founded, cannot be safely disregarded. This is perhaps the least palatable fact of American politics in 2021. It might also be the most important.

One final point deserves mention. In parliamentary systems, a simple majority of the legislature can typically depose a prime minister more or less at will. In established parliamentary democracies, this is an ordinary part of political life, raising no serious fear of violent backlash. Why should presidential removal or disqualification by a simple legislative majority pose any greater risk?

The question requires speculation, but a plausible answer is twofold: First, the president is both the head of government and head of state, making a typical president’s hold on the imagination and political aspirations of his party considerably stronger than a typical prime minister’s. Second, unlike a parliamentary vote of no-confidence, removal or disqualification of a president does not throw the presidency immediately back to the voters. Neither of these poses a serious problem when the president is a bad seed. But when the president is the tip of an iceberg, a successful impeachment thwarts the political ambitions of one major party in a highly salient way, without any immediate recourse through electoral means.

This is dangerous enough that it should be made difficult. Just how difficult is a debatable question. There is a reasonable case that the current supermajority requirement for Senate conviction tips the scales too far in the president’s favor. But that requirement has the virtue of channeling political conflict into electoral competition, where it is more likely—though by no means certain—to end peacefully. In a moment as precarious as the present, that is no small thing.

Posted 6:48 PM by Andrew Coan [link]