What it would take

Can impeachment appear legitimate in a hyper-partisan universe?

What it would take

Can impeachment appear legitimate in a hyper-partisan universe?

“Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as the corruptibility of the man chosen.” — George Mason, Constitutional Convention, June 1787

“We’re going to go in there. We’re going to impeach the motherf—er.” — Rep. Rashida Tlaib (D-Mich.), Jan. 3

The contrast between these two statements reveals everything about the challenge of exercising Article II, Section 4 of the Constitution and attempting to remove President Trump from office. By now, the “unfit” condition of this magistrate is clear, as is his disdain for the principles and traditions of American public life. But the fitness of Congress, the sole branch empowered to impeach and convict the president, also bears scrutiny.

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Carlos Lozada is the nonfiction book critic of The Washington Post. He has also served as The Post’s economics editor, national security editor and Outlook editor. He received the 2015 National Book Critics Circle’s citation for excellence in reviewing. Follow @CarlosLozadaWP
Illustration by Tara Jacoby for The Washington Post

Is the least-trusted institution in America — rated lower than big banks, the news media and the presidency itself — ready to investigate and try a president in a way that conveys legitimacy and inspires broad confidence? And could the American public, already so divided and cynical, regard whatever outcome emerges from that process as nonpartisan and fair?

These questions loom over the numerous guides and retrospectives on presidential impeachment — authored by historians, law professors, journalists and assorted commentators — that have appeared in the two years since Trump swore the oath of office. (For some reason, many publishers imagined that a refresher might come in handy.) Partisanship, they contend, poisons impeachment, both the process and its legacy. This is the paradox: When a demagogic or authoritarian leader comes to power by stoking cultural division and partisan hatreds, the need for impeachment grows, but so does the difficulty of seeing it through.

George Mason, James Madison & Co. would hardly have been surprised by the current boom in impeachment talk. They feared a president who might “pervert his administration” into a scheme for personal enrichment or “betray his trust to foreign powers.” They worried that “the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment.”

Yet impeachment is the nuclear option of American politics, “nullifying the will of voters,” historian Jeffrey Engel emphasizes in “Impeachment: An American History.” So the drafters of the Constitution spent months considering who would ultimately wield that power. Should it be the Senate or the Supreme Court? A vote of state legislatures or governors? The final choice of the House of Representatives (a simple majority vote for impeachment) and the Senate (a two-thirds majority for conviction) flowed from contrasting imperatives, Laurence Tribe and Joshua Matz explain in “To End a Presidency,” a thorough look at the history and legalities of impeachment. The House, directly elected and more susceptible to the passions of the moment, “could credibly claim unique authority to speak for the American people,” whereas the Senate could strive for greater impartiality, wisdom and rigor.

By Charles L. Black Jr. and Philip Bobbitt. Yale. 165 pp.$9.95
By Jon Meacham, Timothy Naftali, Peter Baker and Jeffrey A. Engel. Modern Library. 270 pp. $26
By Cass Sunstein. Harvard. 199 pp. $7.95
By Bill Press. Thomas Dunne Books/St. Martin’s Press. 373 pp. $27.99
By Laurence Tribe and Joshua Matz. Basic Books. 281 pp. $28
By Alan Hirsch. City Lights. 225 pp. $14.95
By Yoni Applebaum. The Atlantic. March 2019.

Placing this power in Congress rather than the courts makes impeachment as much a political process as a legal one. But calling it political does not denigrate impeachment; it elevates it. Impeachment should be political, reflecting the nature of impeachable offenses and the judgments that should be brought to bear when considering it. The endlessly parsed phrase “high Crimes and Misdemeanors” does not cover policy differences, unpopularity, personal animus or simple “maladministration” on the part of the president, a term the framers considered but dismissed as so vague that it would leave presidents at the mercy of Congress. In fact, an impeachable offense need not involve the commission of a crime. Rather, it must feature misdeeds that “so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator,” wrote the late legal scholar Charles L. Black Jr. in his classic 1974 study, “Impeachment: A Handbook,” reissued last year. Impeachment ought to follow egregious abuses of power that constitute, in Engel’s description, wrongdoing “against the entire American people.”

In “Impeachment: A Citizen’s Guide,” law professor Cass Sunstein acknowledges the political dimensions of impeachment but emphasizes the high standards and judgment that should be brought to bear. “It is in part because the standard is high that political opponents of presidents have so rarely resorted to the impeachment mechanism,” he writes. “Despised presidents, and bad presidents, have hardly ever been impeached, which is a tribute to the Rule of Law.” The problem is not that the process could be political but that it could easily become too partisan, another weapon in a permanent campaign. “When an impeachment is purely partisan, or appears that way, it is presumptively illegitimate,” Tribe and Matz warn.

Sen. Trent Lott (R-Miss.) answers reporters questions outside the Senate chamber in January 1999, during the impeachment trial of President Bill Clinton. (Gerald Martineau/The Washington Post)

Indeed, the impeachment efforts historians remember as least legitimate are precisely those, such as the case of President Bill Clinton, that were most partisan. “For both Clinton and his foes, the impeachment battle was not so much a search for facts or even a debate about what this generation of Americans believed constituted high crimes and misdemeanors than it was another political contest to be won or lost,” writes New York Times reporter Peter Baker, a contributor to “Impeachment: An American History.” By contrast, the House Judiciary Committee’s action against President Richard Nixon reflected a judicious and painstaking effort, one that would eventually compel Nixon to resign rather than face impeachment in the House — where the Judiciary Committee had approved three articles of impeachment on a bipartisan basis — as well as likely conviction in the Senate at the hands of both Republicans and Democrats.

“What has changed is ourselves,” writes Columbia law professor Philip Bobbitt in an essay appearing alongside Black’s rereleased impeachment study. “We no longer have the confidence in the leadership of Congress that we had in the Nixon era.” In 1973, some 42 percent of Americans expressed “a great deal” or “quite a lot” of confidence in Congress, according to Gallup polls. By 2018, that total had dropped to 11 percent.

The presidents enduring impeachment proceedings hardly help matters, typically painting the efforts as purely partisan. “The law case will be decided by the PR case,” Nixon argued to his chief of staff in the heat of the Watergate saga; he also complained that his lawyer, James St. Clair, treated the impeachment inquiry “too much as a trial” rather than a raw partisan fight. Historian Timothy Naftali, founding director of the Nixon Presidential Library and a contributor to “Impeachment: An American History,” emphasizes how that view nearly succeeded, largely because, for a long time, “the Republican partisan mind refused to absorb the incriminating nature of the [White House] tapes.”

Similarly, during the Clinton impeachment, Democrats attempted to turn every skirmish with the Republicans and the special counsel into a party-line war. “The more partisan the impeachment effort looked, the less legitimate it would seem in the eyes of the public,” Baker writes. “While they decried partisanship, the Democrats intentionally tried to promote it.” Even the Starr report’s descriptions of Clinton’s personal encounters with Monica Lewinsky managed to help the president, by making his rivals seem more obsessed with sex than with the Constitution. “For Clinton, the release of the report was a public humiliation but a political boon,” Baker explains.

Clinton’s behavior in the Lewinksy scandal, though sordid, abusive and duplicitous, offers a less obvious catalogue of impeachable offenses than Nixon’s electoral sabotage, abuses of power and obstruction of justice. Yet Clinton’s inquisitors seemed to display deeper personal aversion toward their target than did Nixon’s antagonists. Just compare Rep. Peter Rodino (D-N.J.), the chairman of the House Judiciary Committee during Watergate, who worked to build bipartisanship and appealed to what he called “the middle,” with the hard-charging House majority whip during the Clinton era, Rep. Tom DeLay (R-Tex.), who referred to the impeachment effort as “The Campaign.”

Trump has at times offered a positive case against impeachment. “How do you impeach somebody that’s doing a great job?” he asked last fall. But more often, he assails the accusations and investigations against him as hoaxes, witch hunts or desperate moves by “angry Dems,” all in an attempt to preemptively delegitimize any grounds for tossing him out. In this light, comments such as Tlaib’s “motherf—er” moment only affirm his argument.

Indeed, the more partisan the books against him, the less persuasive they feel. “Trump Must Go: The Top 100 Reasons to Dump Trump (and One to Keep Him)” by liberal commentator Bill Press exemplifies the genre. Press mixes the prospect of Russian collusion with the president’s personality quirks (such as Trump’s Twitter addiction), speculation about his health (“he may be certifiably mentally ill”) and policy disagreements (on issues from marijuana to the national debt) to argue that Trump needs to leave office now. Even the alleged “pee tape” of Russia dossier lore, “which none of us have seen, but which many of us just know exists,” makes a cameo.

When scholars argue that the removal of a president must be bipartisan, they are expressing less an opinion than a historical fact. Nixon still enjoyed the support of roughly a quarter of American voters when he resigned, and he could have counted on some 10 to 15 Republican votes in the Senate, writes Williams College legal scholar Alan Hirsch in “Impeaching the President.” But the public would have accepted his removal, Hirsch explains, because significant numbers of Republicans in both chambers supported it. Similarly, it was the partnership between Sens. Tom Daschle, a South Dakota Democrat, and Trent Lott, a Mississippi Republican, that made the conclusion of Clinton’s Senate trial a somewhat bipartisan undertaking.

In some ways, the Trump era combines the most toxic elements of the Nixon and Clinton episodes: the likelihood of impeachment-level wrongdoing, as well as inflamed — and deeply personal — partisan opposition. In such an environment, impeachment proceedings could harden, not ease, our national divisions, Tribe and Matz write. “Virtually every source of dysfunction in our democracy — hyperpartisanship, dark money, fake news, manufactured outrage, cultural warfare — could be magnified tenfold by an impeachment.”

Of course, that hardly means it shouldn’t happen.

In 1868, the House of Representatives designated special managers to handle President Andrew Johnson’s impeachment. Pictured are, front row from left, Reps. Benjamin F. Butler, Thaddeus Stevens, Thomas Williams and John A. Bingham; and, back row from left, Reps. James F. Wilson, George S. Boutwell and John A. Logan. (Mathew Brady/MPI/Getty Images)

Perhaps the most instructive case today — and one undergoing something of a historical revision — is the 1868 impeachment of President Andrew Johnson. In his contribution to “Impeachment: An American History,” historian Jon Meacham highlights the parallels with our era: “an obstinate president; a divided Congress; a nation that seemed intractably tribal; fears that the grand American experiment in democracy was coming to an end; and, as a capstone, a battle over the legitimacy of the president.”

The impeachment of Johnson, a Democratic vice president thrust into the Oval Office after Abraham Lincoln’s assassination, has often been remembered as a partisan exercise, and in many ways it was. The Republican-led Congress despised Johnson, deriding him as “Acting President,” “His Accidency” and “His Vulgarity.” And Johnson’s precipitating offense — violating the Tenure of Office Act by firing the secretary of war without Senate approval — was a technicality, a trap, not a serious constitutional violation. Impeached in the House, he survived in the Senate by a single vote, in part because some senators feared his potential successor, the controversial Sen. Benjamin Wade (R-Ohio).

But scholars today also stress the legitimate reasons for seeking Johnson’s ouster. In a nation just emerging from an existential conflict over slavery, Johnson opposed the 14th Amendment granting citizenship to former slaves and vetoed major civil rights legislation. When Congress overrode him, the president refused to enforce the law properly. He was, in many respects, still fighting for the cause of the defeated South. “Johnson’s virulent use of executive power to sabotage Reconstruction posed a mortal threat to the nation — and to civil and political rights — as reconstituted after the Civil War,” Tribe and Matz write. “These were not ordinary policy disagreements.”

In a comprehensive Atlantic essay making a case for Trump’s impeachment, historian and journalist Yoni Appelbaum looks back on the Johnson episode and sees justice, not partisanship. Johnson wanted to “restore America as it had been” before the war, he writes, shorn of slavery but with little else changed. “If his impeachment was partisan, it was because one party had been formed to defend the freedom of man, and the other had not yet reconciled itself to that proposition.” Although Johnson served out his full term, the close call damaged his political prospects so badly that he did not stand for a second term. “The chorus of experts who now present Johnson’s impeachment as an exercise in raw partisanship are not learning from history,” Appelbaum concludes, “but, rather, erasing it.”

Today, it is tempting to imagine that Trump’s impeachment and removal would take the country back to a saner, simpler time. This illusion ignores the enduring forces that brought Trump to power as well as the risks of impeachment itself. “I confess to a very strong sense of the dreadfulness of the step of removal, of the deep wounding such a step must inflict on the country,” Black writes. Engel warns that impeachment “disrupts the American political landscape as few other events do, leaving scars for generations.” A failed impeachment drive could encourage the president’s most dangerous impulses, and even if it succeeds, impeachment only kicks out an offending leader, “it doesn’t fix the democratic decline that brought [him] to power,” Tribe and Matz remind. “It doesn’t undo the havoc he wreaked while in office. And it doesn’t forestall the trauma of expelling him.” They worry that core supporters of the impeached leader would consider his removal “a gussied-up coup d’etat” and walk away from the American project, drift toward revolutionary politics or even commit violence — “especially if the ousted president refuses to depart gracefully and instead terrorizes the polity that rejected him.” And a graceful exit is hard to imagine under current management.

Yet not undertaking impeachment can be momentous as well. Sunstein does fear a wholly partisan impeachment effort, but he’s just as concerned about the failure to impeach when justified. “If a president systematically overreaches in his use of executive authority, or puts civil rights and civil liberties seriously at risk, he is likely to have, or to be able to get, the backing of a lot of Americans — at the very least, a big chunk of the electorate. Will We the People end up doing anything in response? I don’t know. That’s worth worrying about.”

Even if the new Democratic majority in the House decides to move forward on impeachment, the Senate remains in Republican hands. Reaching 67 senators seems unlikely, except when recalling the Nixon era. “Nixon’s saga reveals that when support for an embattled presidency fades, it cascades,” Engel writes. “Why did so many Americans change their minds so quickly? Because the facts changed.”

That is why, if lawmakers do begin an impeachment process, truth, not partisan fury, must remain the foremost value — and that means offering a full accounting of Trump’s offenses. There is a compulsion on the part of some of the president’s critics to hinge everything on the work of special counsel Robert Mueller, the Godot of the Trump era, as if specific legal misdeeds are the only issue. “Proof that a crime occurred can feel comfortingly objective,” Tribe and Matz write. “It relieves us of the need to exercise judgment and casts a technical gloss over bitterly divisive political questions.”

Obstruction of justice, violation of the emoluments clause, the betrayal of trust to a foreign adversary — any one of these is a significant misdeed that should be core to any impeachment process. Yet they all reflect Trump’s greatest offense against the American public and the American experiment, which is his lack of interest in faithfully executing the office of the president. His biggest lie, out of so many, occurred when he swore the oath and then, in his inaugural address, pledged to be a leader for all Americans. Trump governs for his own interests and those of his family, and for the cheers of his base. His opponents righteously declare that he is “not my president,” forgetting that Trump made that choice for them long ago.

[CORRECTION: A previous version of this story said that Philip Bobbitt is a law professor at Yale University. He teaches at Columbia University.]

Credits: By Carlos Lozada.