Impeachment and Second Thoughts

The U.S. Capitol dome in Washington, D.C., December 18, 2019 (Joshua Roberts/Reuters)
Revisiting Faithless Execution and Congress’s “indispensable” power.

NRPLUS MEMBER ARTICLE O n impeachment, am I part of the problem? I don’t think so . . . but it’s a fair question. After all, as I’m frequently reminded on Twitter, particularly by people who clearly did not read the book, I am the author of a little 2014 ditty entitled, Faithless Execution — Building the Political Case for Obama’s Impeachment.

I’m proud of the book, but I’ve always had regrets about the subtitle. On books, I strain the brain to come up with a pithy title. Regrettably, subtitles are a staple of the non-fiction biz. I hate them. They attempt to sum up what a book is about in a line catchy enough to interest people in plunking down the sales price. Often, books on complicated topics cannot be fairly summarized in a line, so even a subtitle that is accurate is apt to be incomplete, and hence misleading. This is a problem, not least because many more people will glance at a book’s cover than will peruse its pages.

My subtitle told readers that the book was about building the political case for President Obama’s impeachment due to his failure to execute the laws faithfully. This was accurate, but not complete. The book’s thesis is that (a) impeachment is a political remedy, a precondition for which is the making of a political case that persuades the public that the president should be removed; and (b) unless the public is strongly persuaded, such that two-thirds of the Senate is moved to convict, it would be a mistake for the House to impeach in the first place.

It would be reasonable, then, for a person who just spied the cover of my book to assume I was calling for President Obama’s impeachment. To the contrary, I argued that it would be a mistake for the then-Republican-controlled House to impeach Obama, even if he had committed impeachable offenses and was threatening our constitutional order (as I believed was the case), unless it was plausible that a Senate supermajority would vote to oust him. I conceded that this was highly unlikely, but that one would never know for sure unless one tried to make the public case. Trying (as I did) to make that case was worth doing irrespective of whether a formal impeachment attempt in the House would ultimately be reasonable; public pressure might induce the president to mend his ways.

In the Trump impeachment misadventure, I’ve described our conception of impeachment as “bipolar.” This is a leitmotif of Faithless Execution. On the one hand, we have an abstract legal understanding of what an impeachable offense is. Derived from British common law and colonial experience, it is best explained by Hamilton in Federalist No. 65. On the other hand, we have a practical political understanding that an impeachable offense must be so egregious that it justifies going through the upheaval that removing a president necessarily entails. This is also addressed in Federalist No. 65, with Hamilton observing that impeachment is committed to the Senate rather than a court because it should be decided by a numerous tribunal of statesmen exercising sound judgment, free from the legal constraints that bind prosecutors and judges.

In attempting to resolve this tension, I was not quite as cynical as the late President Gerald R. Ford had been about the impossibility of imposing a fixed legal test on impeachment. In 1970, when he was the House minority leader making a futile attempt to impeach Supreme Court Justice William O. Douglas, Ford famously said that “an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history.” I did, however, opine that you could have a hundred impeachable offenses in the abstract legal sense, but you don’t truly have any impeachable offense absent abominable executive excess that galvanizes the public, and thus the Senate.

In retrospect, maybe my subtitle should have been “Why Obama Is Impeachable, But Not Impeachable” — though I doubt that would have been much better.

In any event, Faithless Execution addressed a deep flaw in modern American governance: the erosion of restraints on executive power.

The Framers decided, after some hesitation and with reluctance, to include impeachment in the Constitution because it was “indispensable” (Madison’s word). The presidency needed to be powerful, but that gave it a unique potential to damage, or even destroy, the republic and its new constitutional order. That aside, the sophisticated men who designed our system knew there would be plenty of executive overreach and error. This “maladministration” would be bad, but not bad enough to warrant removal. The Framers thus assumed that Congress’s principal check on the president would be the power of the purse: Control of funding could gut a president’s dubious initiatives and incentivize a president to behave lawfully. The Senate would also have the power to deny confirmation of officials the president would need to carry out programs.

The problem, after a century of progressive governance, is that these checks do not work anymore. The federal government and its administrative state have grown monstrously big. Federal money is now as much tied to social welfare as to traditional government functions. Budgeting is slap-dash and dysfunctional. To threaten to deny funds or leave agencies leaderless is to be seen, not as reining in executive excess, but as heartlessly harming this or that interest group. Lawmakers would rather run up tens of trillions in debt than be portrayed that way.

The only real check left is impeachment. It is rarely invoked and (until very recently) has atrophied as a credible threat. But that doesn’t make it any less indispensable.

The problem was exacerbated by the Clinton impeachment fiasco, which history has proved foolhardy. (I supported it at the time, but I was a government lawyer then, not a public commentator.) Republicans were sufficiently spooked by the experience that they seemed to regard impeachment as obsolete. Faithless Execution countered that this was the wrong lesson to take from the affair. Clinton’s impeachment was a mistake because (a) his conduct, though disgraceful and indicative of unfitness, did not implicate the core responsibilities of the presidency; and more significantly, (b) the public, though appalled by the behavior, strongly opposed Clinton’s removal. The right lesson was that impeachment must be reserved for grave misconduct that involves the president’s essential Article II duties; and that because impeachment is so deeply divisive, it should never be launched in the absence of a public consensus that transcends partisan lines.

This is why, unlike many opponents of President Trump’s impeachment, I have never questioned the legitimacy of the Democratic-controlled House’s investigations of misconduct allegations against the president. I believe the House must act as a body (investigations should not be partisan attacks under the guise of House inquiries), and it must respect the lawful and essential privileges of the executive branch; but within those parameters, Congress has the authority and responsibility to expose executive misconduct.

Moreover, while egregious misconduct will usually be easy to spot and grasp, that will not always be the case. When members of Congress claim to see it, they should have a fair opportunity to expose and explain it. To my mind, President Obama was the kind of chief executive that the Framers feared, but this was not obvious because he was not committing felonies. Instead, he was consciously undermining our constitutional order. He usurped the right to dictate law rather than execute it. His extravagant theory of executive discretion to “waive” the enforcement of laws he opposed flouted his basic constitutional duty to execute the laws faithfully. He and his underlings willfully and serially deceived Congress and the public on such major matters as Obamacare and the Benghazi massacre. They misled Congress on, and obstructed its investigation of, the outrageous Fast and Furious “gun-walking” operation, in connection with which a border patrol agent was murdered. With his Iran deal, the president flouted the Constitution’s treaty process and colluded with a hostile foreign power to withhold information from Congress, in an arrangement that empowered (and paid cash ransom to) the world’s leading sponsor of anti-American terrorism.

My critics fairly noted that I opposed Obama politically, and therefore contended that I was masquerading as a constitutional objection what was really a series of policy disputes. I don’t think that is right, though, for two reasons.

First, my impeachment argument was not that Obama was pursuing policies I deeply opposed. I was very clear that elections have consequences, and the president had every right to press his agenda. My objection was that he was imposing his agenda lawlessly, breaking the limitations within which the Framers cabined executive power, precisely to prevent presidents from becoming tyrants. If allowed to stand, Obama precedents would permanently alter our governing framework. Impeachment is there to protect our governing framework.

Second, I argued that, my objections notwithstanding, Obama should not be impeached in the absence of a public consensus for his removal. Yes, Republicans should try to build that case, try to edify the public about why the president’s actions threatened the Constitution and its separation of powers. But they should not seek to file articles of impeachment simply because they could — i.e., because control of the House theoretically gave them the numbers to do it. The House is not obliged to file impeachment articles just because there may be impeachable conduct. Because impeachment is so divisive, the Framers feared that it could be triggered on partisan rather than serious grounds. The two-thirds supermajority requirement for Senate conviction guards against that: The House should not impeach unless there is a reasonable possibility that the Senate would remove — which, in Obama’s case, there was not.

I also tried to focus on incentives. If impeachment were a credible threat, and Congress began investigating and publicly exposing abuses, a sensible president would desist in the misconduct, making it unnecessary to proceed with impeachment. On the other hand, a failed impeachment effort would likely embolden a rogue president to continue abusing power. If your real concern is executive lawlessness, then impeaching heedlessly and against public opinion would be counterproductive.

I’ve taken the same tack with President Trump.

The objections to Trump are very different from those to Obama. He is breaking not laws but norms of presidential behavior and decorum. For the most part, I object to this. There are lots of things about our government that need disruption, but even disruptive presidents should be mindful that they hold the office of Washington and Lincoln and aspire to their dignity, even if their greatness is out of reach.

That said, impeachment is about serious abuse of the presidency’s core powers, not behavior that is intemperate or gauche. Critics must be mindful that the People, not the pundits, are sovereign, and they elected Donald Trump well aware of his flaws. That he turns out to be as president exactly what he appeared to be as a candidate is not a rationale for impeaching him.

The president’s misconduct on Ukraine is small potatoes. Democrats were right to expose it, and we would be dealing with a more serious situation if the defense aid appropriated by Congress had actually been denied, rather than inconsequentially delayed. If Democrats had wanted to make a point about discouraging foreign interference in American politics (notwithstanding their long record of encouraging it), that would have been fine. They could have called for the president’s censure, which would have put Republicans on the defensive. Ukraine could have been incorporated as part of their 2020 campaign that Trump should be defeated, despite a surging economy and relative peace.

Conducting an impeachment inquiry is one thing, but for the House to take the drastic step of impeaching the president is abusive on this record. Yes, it was foolish of Trump to mention the Bidens to President Zelensky and to seek Ukraine’s help in investigating the Bidens. There may well be corruption worth probing, but the president ought to leave that to researchers in his campaign. If there is something that a government should be looking into, leave that to the Justice Department, which can (and routinely does) seek foreign assistance when necessary. The president, however, should have stayed out of it. Still, it is absurd to posit, as Democrats do, that, by not staying out of it, the president threatened election integrity and U.S. national security. Such outlandish arguments may make Ukraine more of a black eye for Democrats than for the president.

But whoever ultimately bears the brunt of the impeachment push, I have to ask myself a hard question: Is this the world I was asking for when I wrote a book contending that, for our system to work as designed, impeachment has to be a credible threat? I don’t think so . . . but I do worry about it.

Back to the Clinton impeachment. I tried to make the point that that impeachment effort — against public opinion, and based on misconduct that, while dreadful, was not central to the presidency — has contributed significantly to the poisonous politics we have today. Democrats have been looking for payback ever since, and now they have it — in a way that is very likely to make impeachment more routine in the future.

I don’t see how our constitutional system can work without a viable impeachment remedy. But I may have been wrong to believe that we could be trusted to invoke the remedy responsibly. I used to poke fun at pols who would rather hide under their desks than utter the dreaded I-word. Turns out they knew something I didn’t.


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