Laurence Tribe and Joshua Matz’s new book, “To End a Presidency: The Power of Impeachment,” is the first book in several decades for lawyers and laymen to thoroughly examine the topic. The previous gold standard was Charles L. Black Jr.’s “Impeachment: A Handbook” (first published during Watergate and reissued in 1998), which took the lessons of Watergate and broadened the discussion to other situations that might arise. Via email, I asked Tribe and Matz a series of questions about their book and our current circumstances; they replied jointly. The first part of that conversation follows, edited for style. Part 2 will appear on Tuesday.
Why did you think a book on impeachment of this type was necessary now?
Everyone with a pulse and an Internet connection knows that impeachment haunts Trumpland. Starting a year before the election and continuing through the present, discussion of [President] Trump’s disgraced ouster has been unavoidable. Amid all this impeachment talk, we found it distressing that many voters deeply misunderstand what’s involved in ending a presidency. Lots of people, for example, believe impeachment is justified based only on dislike of a president’s policies or personality. In addition, many accounts offer a stunningly incomplete picture of the risks on both sides of this equation. Perhaps most alarming, it’s become commonplace to describe the consequences of impeachment in fantastical terms — suggesting it will either magically solve our worst problems or swiftly destroy the American experiment. If the public is going to spend the coming years debating Trump’s removal, we must nurture a reasoned understanding of impeachment’s role in our constitutional order. That’s what the book seeks to provide.
The “bible,” if there is such a thing on impeachment, until now was Charles Black’s book. Where do you agree and disagree with him?
Black’s book is a masterpiece. We differ from him less in substance than in scope and emphasis. He devoted substantial attention to defining which offenses are impeachable. As we see it, that question is just the tip of an iceberg. We offer a thorough explanation of why the Framers created an impeachment power, what role they imagined for Congress and how they forced us to make tough political judgments. We also offer a guided tour through those judgments, examining Congress’s power not to impeach and the vast discretion it exercises throughout an impeachment process. More broadly, we survey the history of impeachment campaigns in U.S. politics, drawing lessons for the present and emphasizing impeachment’s vital (but limited) role in protecting our democracy. Although Black’s book is authoritative on the topics it covers, we conclude that it offers too narrow a vision of the dynamics that shape impeachment.
What are some common myths about impeachment that you wanted to dispel?
Where to start? We’ll hit just a few high notes here:
- That consulting the original public understanding of the Constitution will answer many of the hardest questions about impeachment
- That impeachment calls only for a single “yea” or “nay” judgment on the sitting president, rather than an ongoing, multidimensional series of political decisions
- That Congress is entirely free to act in bad faith when defining impeachable offenses
- That impeachment is reserved only for presidents who commit indictable crimes
- That Congress is required to impeach and remove the president whenever it believes he has committed “high Crimes and Misdemeanors”
- That benching Trump through the 25th Amendment would, at this point, be easier or more legitimate than seeking to impeach him
- That removing Trump would automatically undo the havoc he has caused, invalidate his appointments and executive orders, and trigger some sort of special election
Ultimately, we worry most about tendencies toward apocalyptic thinking. Partisans on the left and right have pictured impeachment as either a magic wand or a doomsday device. In truth, it is neither of those things. We can’t have a rational debate about impeachment until Americans embrace a realistic outlook on what’s actually at stake.
Can a president be impeached for exercising his ordinary executive powers (e.g. firing former FBI director James Comey)?
Yes. In fact, the threat that a president might abuse his official power was a major reason for allowing impeachment in the first place. Otherwise, the Constitution would create a zone of absolute, unchecked and uncheckable power — in blatant defiance of the core principle that nobody is above the law. Thus, although the president is commander in chief of the military, he wouldn’t be shielded from impeachment if he deliberately ordered the massacre of innocent civilians. Similarly, the president could be removed if he promised to pardon anyone who attacked blacks, Jews or people who voted against him. And as Richard Nixon’s case shows, Congress could properly impeach a president for corruptly issuing orders to the FBI and CIA on the basis of a desire to obstruct justice. The notion that a president cannot be impeached for abusively or corruptly exercising his executive power is, quite frankly, one of [the] most indefensible claims in the whole field of constitutional law.