The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Missouri Law Review just released its new issue featuring a symposium on the law and politics of the impeachments of President Donald Trump. It includes an all-star cast of contributors, including Frank Bowman, Rep. Jamie Raskin, Sen. Dick Durbin, Michael Gerhardt, Gene Healy, Brian Kalt, Michael McConnell, Victoria Nourse, and me.
My article in the symposium is focused on the first impeachment. From the abstract:
Measured by any yardstick, it is hard to think that the first impeachment of President Donald Trump was particularly successful. But there are important broader questions raised particularly by the first Trump impeachment that have significance for how we think about the impeachment power moving forward. If future impeachment efforts are to be more successful, or even useful, Congress will have to understand the nature of the constitutional task that it is undertaking.
As the House contemplates making use of the impeachment power and the Senate contemplates whether to convict an officer in an impeachment trial, there are some basic questions that must be asked in any impeachment episode. What is an impeachable offense? Is this kind of behavior impeachable? Does this instance of misconduct justify impeachment? It should not have been hard for the House to answer the first two questions in regard to the first Trump impeachment. The third question was the more challenging to answer, and the House struggled to answer it.
This essay argues that abusing the powers of the presidency for the sake of purely personal interests is well within the traditional scope of the impeachment power. In order to assess whether an officer has abused power in that way, members of Congress must take care to deliberate across the political aisle so as to identify and resolve possible good-faith explanations for an officer's behavior. A House that does not bother to curb its own partisan instincts risks abusing its own constitutional authority by rushing headlong into an impeachment that does not meet the constitutional standard of high crimes and misdemeanors. Even after the House and the Senate have come to an understanding of the scope of impeachable offenses and each has satisfied itself that an officer has committed deeds that fall within that scope, they must still decide whether an impeachment and a conviction and removal is warranted. Those decisions are necessarily political judgments about what risks the country faces and how they are best navigated. If Congress is to contemplate pursuing an impeachment, it should have a clear view of what it is trying to accomplish and why impeachment is the best path to getting there.