Considering the Law and Politics of Presidential Impeachments

Constitutional Lawyers are Helpful, but Impeachments Require Politics in the Highest Sense

|The Volokh Conspiracy |

I recently wrote a review essay on the law and politics of impeachments, particularly presidential impeachments. There have been some high-quality recent book-length studies of the impeachment power (very much with Donald Trump in mind), and the essay grapples with some particularly informative recent books by Michael Gerhardt, Gene Healy, Cass Sunstein, and Laurence Tribe and Joshua Matz, as well classic books from the Watergate period by Charles Black and Raoul Berger. The essay provides an overview of the impeachment power, the history of its use, the reasons for its use, and how to think about the meaning of "high crimes and misdemeanors." The Cato Institute's Gene Healy has laid out the case for a particularly expansive understanding of the scope of the impeachment power. I think his reading would go too far toward turning impeachments into a weapon of ordinary politics and is not fully consistent with the origins, logic, and history of our constitutional impeachment power, but he does lay his finger on the reasons why the impeachment power cannot be easily hemmed in by rigid constitutional rules. The essay is still available for a law review that wants to publish it sooner rather than later.

From the conclusion:

In our current debates over President Donald Trump, there are important questions of fact but there will also be unavoidable questions of law. There is more to be learned about what exactly President Trump has done, but there is a remarkable amount of information already available. The more fundamental disagreements are not over the basic contours of the charges against the president but over whether any of those charges rise to the level of high crimes. Although the president's most ardent defenders might like to make out the case that nothing the president has done can rightfully fall within the category of impeachable offenses, as Alan Dershowitz does in arguing that only indictable crimes can be impeachable offenses, only partisans are likely to be persuaded.

. . . .

The hard questions surrounding Trump are political questions in the broadest sense. How grave are his offenses? What remedies are available to address them? How risky is it to leave the president to serve out his term in light of what he has already done? How risky is it to forcibly remove a populist president from power on a largely partisan basis? The constitutional impeachment power forces Congress to confront such questions. Partisans will reach different answers on such questions, but even reasonable people not blinded by partisan passions are likely to differ in assessing them. Foes of the president and advocates of impeachment bear a burden to make a genuine effort to construct arguments that can find broad appeal and help persuade the skeptical and the uncommitted. Allies of the president and opponents of impeachment have a duty to listen to such arguments and take them seriously. Foes of the president have the obligation to demonstrate that impeachment is the last resort and that all other remedies have been tried and have proven insufficient to the task. Allies of the president have the obligation to take steps to walk the president out of impeachment territory by designing remedies that can be effective at mitigating the genuine damage that their fellow citizens see being done and to not simply try to sweep offenses under the rug. The impeachment process stirs passions, but the constitutional system only works if we are willing to deliberate in good-faith with those with whom we disagree and look beyond our most immediate interests and inclinations. If impeachments come to be perceived as nothing but a formidable weapon of faction, then we will have taken a long step toward destabilizing our constitutional order and we will have tarnished a potentially necessary constitutional tool.

You can read the whole draft here.

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  1. You’re still just assuming that he’s guilty of the charges, has committed “offenses”, that there’s something that needs to be “remedied”. That the citizens seeing “genuine damage” aren’t just reacting to normal policy differences as “damage” due to viewing it as illegitimate to disagree with their policy preferences.

    Seriously, it is grossly conspicuous that you’re doing this, don’t you notice it?

    1. Exactly. So far, the only “crime” of which Donald Trump is clearly guilty is in creating immense disappointment and anger among the looney left (which now seems to encompass pretty much all Democrats) that they couldn’t win a Presidential election in 2016 with a deeply flawed candidate. There is certainly the (remote) possibility that there are other crimes out there, waiting to be discovered (or invented), but nothing revealed in the last two years supports such a possibility.

      1. Obama: Goes Golfing once a month
        Conservatives: IMPEACH!!
        Trump: Lies daily. Ignores experts. Creates emergency declarations where there is no emergency. Promotes his “businesses” on the official twitter channel.
        Conservatives: All good.

        It wasn’t really until Trump that I realized how really damaged conservatism is in this country. The hatred for this country by them is so deranged.

        1. Obama: Goes Golfing once a month
          Conservatives: IMPEACH!!
          –regexp

          You have a cite for that? I can’t recall any Legislative or similar call for impeachment. We need a cite.

        2. OK, I must have missed the demands that Obama be impeached for golfing occasionally. Personally, I liked it when he was golfing, it kept him away from his phone and pen. Golfing was one of the least damaging things he did.

          Now, shipping about $1.2B in small, unmarked bills to Iran? I’d call THAT an impeachable offense. But golfing? Even taking into account his habit of taking mulligans, it didn’t quite clear the bar.

          1. I can fully understand why an admirer of Trump’s business practices would consider paying one’s obligations, even to those one dislikes, to be misconduct.

            1. I can see why you might informally consider it an obligation, but those funds were legally obligated elsewhere, to pay claims against Iran.

              AND he structured the payment to avoid reporting the transaction to Congress as was legally required.

              1. Brett, the Inspector General of the Treasury said that there was a single payment, processed in 14 parts because the IT system they used couldn’t handle a single amount that large. Do you have information that contradicts this?

              2. Brett, there was nothing informal about it.

                The payment was the result of an agreement with Iran entered into to avoid the possibility of losing a much larger judgment.

                And the “small unmarked bills” business is RWNJ idiocy, which you really should pay less attention to, if you don’t want to keep beclowning yourself.

        3. “The hatred for this country by them is so deranged.”

          It’s not the Conservatives that are working to undermine the fundamental rights enumerated in the first two Amendments and the due process clauses of the Fifth and Fourteenth Amendments. Nor are they trying to circumvent the safeguard that protects small states from the power of the large states, because they lost two elections.

        4. Regexp, everything you just said is total bullshit. You should really consider harming yourself. Maybe taking life endangering levels of hard drugs.

  2. (very much with Donald Trump in mind)

    Creating and saving jobs!

  3. “only partisans are likely to be persuaded”

    The Resistance sold “collusion”. If they can’t prove that, there will be people who voted for Trump but have soured somewhat who will be relieved and won’t care about victimless process crimes.

    In any event, the only “partisans” who matter are the 53 GOP senators and Manchin.

    1. There’s a Lawfare article from last summer that traces the first public use of the word “collusion” in relation to Russia and the Trump campaign to that hotbed of the Resistance, the Washington Examiner.

      1. Oh, another “Heritage proposed Obamacare” theme.

        It doesn’t matter though, it was pushed by Dem and Dem mass media.

  4. So far, two impeachments, both for clearly political reasons, with molehills turned into mountains for the purpose. Nixon came the closest to an honest impeachment, which is probably why he resigned.

    I never did understand why the GOP impeached Clinton for such a minor crime when they had several rapes available. I wonder now if the Democrats will be stupid enough to impeach Trump and reinforce the political aspect just as they did with removing filibuster for federal judge appointments. All they’d really do is make it easier for Republicans to reciprocate even harder. Would we reach a point where the only way for a President to survive a full term is have at least one chamber controlled by the same party? What would a GOP Senate do if the House were dump enough to impeach Trump? Not enough majority to just vote the first day and get it over with; would the Democrats be able to stretch it out, and what would they stretch it out with that wouldn’t implicate past and future Democrats?

    1. “I never did understand why the GOP impeached Clinton for such a minor crime when they had several rapes available.”

      It’s not that complicated. It was the ”Ellen Rometsch” strategy. You recall “Filegate”, where the President was caught having a subordinate collecting FBI files on his political foes? (Afterwards he hired PIs to continue the work.)

      When the impeachment fight got hot and heavy, he released some of the dirt from that collection, (Using Larry Flynt as a cutout.) forcing Bob Livingston to resign. Livingston got replaced by Denis Hastert, who we now know was eminently blackmailable himself.

      Having learned the personal cost of pursuing Clinton, the House managers then dropped almost all of the charges they’d been considering bringing against Clinton, (Despite having won a critical House vote to pursue all of them.) and took a dive during the Senate trial.

      Filegate appears to have been Clinton’s most consequential scandal, in the end, as it assured the survival of his administration.

      1. I really hope that Prof. Whittington will follow his own prescription and engage seriously with this theory, but I bet he won’t. Until he does, I don’t know why anyone would engage seriously with his theories.

      2. Filegate is bullshit.

        In 1998, Independent Counsel Kenneth Starr exonerated President Bill Clinton as well as the First Lady of any involvement in the matter. In 2000, Independent Counsel Robert Ray issued his final report on Filegate, stating that there was no credible evidence of any criminal activity by any individual in the matter and no credible evidence that senior White House figures or the First Lady had requested the files or had acted improperly or testified improperly regarding Livingstone’s hiring. A separate lawsuit on the matter brought by Judicial Watch, a conservative watchdog group, lingered on for years and was dismissed by a federal judge in 2010.

        The judge who dismissed the Judicial Watch lawsuit was Royce Lamberth, a Reagan appointee. You can learn more here. Note especially the nuts pushing the story – Brent Bozell, NRO, WorldNet Daily, etc.

        1. Hey Brett.

          What do you think – that Ken Starr was doing a coverup for the Clintons?

    2. I never did understand why the GOP impeached Clinton for such a minor crime when they had several rapes available.

      The alleged assaults were decades befpre the Presidency, for impeachment you should really be looking to stuff committed during the Presidency.

      Similarly for Trump, there’s probably some pretty juicy indictable offences hidden in his Tax returns and Trump Org records. But to impeach him you probably need overwhelming evidence of obstruction of justice or knowing collusion with the Russian government during the campaign.

      That and a loss of his base.

  5. What, exactly, does Whittington see in Trump’s actions which demands a “remedy”?

    Let’s see the best example, because I think it will say more about Whittington than about Trump.

    1. Demand Pence resign.

      Appoint Hillary VP.

      Resign the Presidency.

      The real offense the partisans are upset about is Trump winning the election.

  6. “The more fundamental disagreements are not over the basic contours of the charges against the president”

    Say wha’? (…talk about a prime example of the logical fallacy of begging the question….)

    For us more simple-minded folk, would you care to enumerate those charges?

    1. Trump is superficial, mercurial, and impulsive. He shares these traits with most New York real estate developers, and many other successful businessmen, but academics hate people like that, and consider all of them to be borderline criminal. Recall how Prof. Whittington’s colleagues hated Bush and Romney, two other successful businessmen.

      Trump is vulgar and loud. People of refinement (like me) do not live in his buildings or want to. All glitz and glass. People of refinement, even if they have a private jet, don’t put their name on it and don’t have gold plated seatbelt buckles. In fact, most rich people, tend to discretion and connoisseurship. Academics who might tolerate a discreet and refined rich person find a loud, vulgar one unbearable.

      I doubt that Prof. Whittington has much to add to the foregoing indictment. The points I have enumerated are more than enough to provoke widespread hatred among the chattering classes.

      1. Well, the man is plainly a thief, having stolen money from his foundation, and a con man – see Trump University – and a deadbeat – see unpaid creditors. How much of that is grounds for impeachment is a different matter, though ISTM that the foundation business, oh, and the hush money payoffs, get you pretty close.

  7. He shares these traits with most New York real estate developers, and many other successful businessmen, but academics hate people like that, and consider all of them to be borderline criminal. Recall how Prof. Whittington’s colleagues hated Bush and Romney, two other successful businessmen.

    Of the three, only Romney could fairly be called a successful businessman. Bush’s career was a series of flops covered by his father’s buddies, followed by being given a sweetheart deal because of his political connections.

    Trump started out with $400 million, operated in a strong market, was intensely dishonest, and managed to earn small positive returns, maybe.

    1. “only Romney could fairly be called a successful businessman”

      But the only way he was able to make all that money was by giving that poor woman cancer.

      1. …and by failing to pay his income taxes (or, so I’ve heard it rumored); and by abusing his dog.

        1. Well, he did abuse the dog.

          As to income taxes, I am suspicious. Romney never released returns which would show whether or not he had taken advantage of the 2009 amnesty on reporting foreign bank accounts, and there is certainly reason to believe that he did.

          Of course, he has a simple way to prove those suspicions wrong.

  8. We can reasonably expect a significant number of Republican Senators to take the notion of impeachment seriously when Trump puts an FBI informant inside his opponent’s campaign and uses RNC research as the basis for a FISA warrant on his opponent.
    Until then, it might be best to shut the hell up.

    1. Trey Gowdy, of all people, disagrees with you.

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