Considering the Law and Politics of Presidential Impeachments

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

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.