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Reviewing New Books on Impeachment in Claremont Review

In the new Fall 2018 edition of one of our favorite magazines, Claremont Review of Books, I am proud to have a review of a couple of interesting new books on the subject of impeachment, Cass Sunstein’s Impeachment: A Citizen’s Guide; and a joint effort by Laurence Tribe and Joshua Matz called To End a Presidency — The Power of Impeachment. I begin with something of a lament about my own impeachment book, published four years ago:

Collusion! Obstruction! And what about the Emoluments Clause!

Donald J. Trump’s antagonists began talking about impeaching him within days of his 2016 election victory. But on what grounds? Since “collusion with Russia” is not a crime, can the president “obstruct justice” by carrying out an undeniably constitutional act, such as firing the director of the FBI—the agency investigating the, er, collusion? Even if we assume, for argument’s sake, that the president could be criminally charged for such an act, isn’t there some Justice Department rule against indicting a sitting president? If he may not be indicted at all, why is a special prosecutor investigating him? And if he may not be indicted for lawful exercises of his Article II prerogatives—dismissing subordinates, criticizing investigations’ merits and investigators’ motives, pardoning political allies—could he still be impeached over them?

These are difficult, important questions. In deliberating over the Constitution, nothing bedeviled the framers more than the new office they were creating, the presidency of the United States. If the nation were to survive and thrive, the chief executive would have to possess powers so awesome they could, if abused, destroy the nation, eviscerating its founding ideals of liberty and self-determination. With Americans having just thrown off one monarch, an essential objective of the Constitution was to forestall the rise of another. The president would have to be checked by powers commensurate with his own. Today, we metaphorically refer to the ultimate check, impeachment, as a “nuclear option.” To James Madison it was, in a word, “indispensable.”

No American president has ever been removed from office by the Constitution’s impeachment process, though Richard Nixon surely would have been convicted by the Senate and evicted from the White House had he not resigned. Andrew Johnson and Bill Clinton were impeached by the House, but the Senate could not muster the two-thirds supermajority to convict and remove them. Since Clinton kept his job in 1998, the prospect of impeaching presidents hangs more heavily than before in a coarsened culture, a fractious body politic, and a 24/7 media age that conflates news reporting with opinion journalism and fiery partisanship.

Yet, like fascism and the infield-fly rule, impeachment is a concept often invoked but poorly understood. There is excellent scholarship on the subject, Raoul Berger’s Impeachment: The Constitutional Problems (1973) being the modern standard. Still, there remains enough misinformation that a popular guide, attuned to modern conditions, would be welcome.

My own modest effort, Faithless Execution, was published in 2014. Alas, if the year does not explain why I was too early to the party, the subtitle will: Building the Political Case for Obama’s Impeachment. It was verboten to speak of impeaching President Barack Obama—which is why a political case for doing so was needed. (I’ll come back to that.) In today’s terrain, of course, even a well-reasoned polemical book is destined to be rejected out of hand by at least half the intended audience.

We still need that popular guide in the contentious circumstances of 2018.

The rest of the review can be read here. As I elaborate, Sunstein comes closer to hitting the sweet spot — an engaging book that teaches and is not an anti-Trump diatribe. Tribe and Matz, by contrast, do not conceal their contempt for Trump; but their polemical book is learned, and I believe they may be more realistic about the political nature of impeachment, and thus the Congress’s prerogative to weigh the politics even when high crimes and misdemeanors have arguably been committed. I hope you’ll check out the review . . . and the rest of what is an excellent issue of CRB.

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