NOVEMBER 15, 2018
ON NOVEMBER 6, in a historic midterm election, Democrats decisively took control of the House of Representatives. In January, Democrats will take charge of the House Judiciary Committee, where Representative Jerry Nadler (Democrat-New York) will be Chair, armed with subpoena power. Consequently, it is now entirely possible that the House will issue Articles of Impeachment against President Donald J. Trump.
The Senate remains solidly in Republican control, where the impeachment process would require a two-thirds vote to convict and remove the president. So, is impeachment and removal of Trump out of the question?
In 1974, President Richard Nixon was also facing impeachment. Democrats controlled the House and the Senate — but without a two-thirds majority. Yet, on the eve of the House vote to impeach, Republican leaders told Nixon that he was doomed because key Senate Republicans were prepared to provide the necessary votes to convict and remove him. Nixon resigned.
Today, the question facing the nation is whether, in light of the Constitution and our history, the House has a duty to hold hearings and marshal the evidence of impeachable offenses, regardless of the head count in the Senate.
Having mounted a bloody revolution to escape the domination of King George III, when it came time to write the United States Constitution, the last thing the Founders wanted was to recreate a tyrannical president. Edmund Randolph feared “the fetus of monarchy,” and Hugh Williamson warned against “an elective king.” Periodic elections were not enough. The people deserved the ultimate power to remove a president who was abusing the highest office in the land without waiting for the next election.
John Adams considered impeachment among the fundamental “Rights and Privileges of Englishmen.” In 1679, nearly a hundred years before the American founding, the House of Commons proclaimed impeachment “the chief institution for the preservation of the government,” and Edmund Burke considered it the “great guardian of the purity of the Constitution.” As early as 1386 Parliament made the ministers and functionaries of the king subject to impeachment for “certain high treasons and offenses and misprisons.” The term “high crimes and misdemeanors,” which first appears in 1642 in English law, constituted a category of political crimes against the state, which could lead not only to removal from office but execution.
In Impeachment: A Citizen’s Guide, published in October 2017, but more relevant than ever following the November 2018 midterm election, Cass R. Sunstein offers a lively, compact, and authoritative account of the British and American history of impeachment. He addresses the most intriguing questions posed by this little used but pivotal constitutional provision. Sunstein believes that impeachment “lay[s] at the core of the founders’ intricate and majestic effort to balance the defining republican commitments to liberty, equality, and self-rule with the belief in a strong, energetic national government.” If the president “proved corrupt, invaded their rights, neglected his duty, or otherwise abused his authority,” impeachment “gave We the People a way to say: NO MORE.”
Unfortunately, the impact and immediacy of the book, completed after the election of Donald Trump, is severely blunted by Sunstein’s surprising decision (in the name of “neutrality”) not to “speak of any current political figure.” In passages which cry out for the sober assessment of a constitutional scholar of the caliber of Sunstein — Robert Walmsley University Professor at Harvard Law School and the author of numerous exceptional books, most recently Can It Happen Here?: Authoritarianism in America — readers are instead left to fend for themselves, denied the benefit of having Sunstein apply his considerable knowledge of impeachment to the circumstances we find ourselves in today.
Sunstein apparently wants We the People to decide for ourselves and as such his book truly lives up to its promise of being “A Citizen’s Guide.” After tracing the British origins of impeachment, he explains that because by the 1770s “Americans came to see impeachment as the mechanism by which the people could begin the process for ousting official wrongdoers, understood as those who betrayed republican principles, above all by abusing their authority through corruption or misuse of power,” immediately after independence was won and before the Constitution was written, several state constitutions included a mechanism for impeachment.
Consequently, when the Constitutional Convention was convened in Philadelphia in May 1787, there was little doubt the power of impeachment would be included. To many delegates, it was vital. “Shall the man who has practiced corruption & by that means procured his appointment in the first instance,” thundered George Mason, “be suffered to escape punishment, by repeating his guilt?” (Here is one place we dearly need Sunstein to weigh in on whether President Trump could be impeached for conduct prior to his inauguration, including colluding with the Russians to procure his election.)
James Madison called it “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” who “might pervert his administration into a scheme of peculation or oppression” or “might betray his trust to foreign powers.” (Yet another Trump issue on which Sunstein’s expertise would be welcome.)
The Convention debated various formulations for articulating the grounds for impeachment, finally settling on “Treason, Bribery, or other high Crimes and Misdemeanors” (Article 2, section 4). While there is no record of how the delegates defined these terms, there was universal understanding that impeachment and removal did not require proof that an actual crime — a violation of the penal code or criminal statute — had been committed. In contrast to the absence of such a record from the Convention, Sunstein devotes a fruitful chapter entitled “What We the People Heard” to a lucid discussion of the highly public ratification debates during which individual states considered whether to ratify the new Constitution. According to Sunstein, the
idea of “great and dangerous offenses” is an excellent shorthand for the views of the ratifiers — at least if we understand such offenses as including egregious abuses or misuses of official authority. At the same time, bad decisions, or politically objectionable decisions, are not sufficient grounds for impeachment, even if much of the nation is up in arms. The United States, unlike some other democracies, does not allow votes of confidence.
To get the Constitution ratified, it was necessary to convince the public that the document did not betray the goals of the Revolution and that the people would have enough control over the president.
In Federalist No. 65, Alexander Hamilton explained that the “subjects” of impeachment involve “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
Having refused to sign the Constitution because it lacked a Bill of Rights, Mason was worried that the president could pardon “crimes which were advised by himself” before indictment and conviction. Mason presciently asked, “May he not stop inquiry and prevent detection?” Madison reassured him that “if the President be connected in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.”
Of particular contemporary importance, Randolph linked impeachment to the Constitution’s Emoluments Clause, which prohibits federal officials including the president from receiving gifts and emoluments from foreign governments. For Sunstein, the link makes perfect sense. “The emoluments clause protects the nation against officials who have been compromised by receiving gifts from foreign nations. Impeachment supplies the remedy in the event of a violation.” Here again, Sunstein refrains from applying these principles to Trump. But it is worth noting that recently, two separate federal courts have allowed lawsuits brought by Maryland, the District of Columbia, and almost 200 Congressional Democrats to proceed against Trump on the grounds that he has violated the Emoluments Clause by receiving benefits from foreign governments, which lavishly patronize Trump’s hotels, including Saudi Arabia, whom Trump was slow to criticize and sanction over the killing of journalist Jamal Khashoggi.
By 1788, the American people had ratified the Constitution in great part because they were satisfied that with various checks and balances in place, including the power of impeachment, the public was sufficiently protected from the excesses of “an elective king.” Since then, four presidents and 19 other federal officials have been involved in impeachment proceedings, and Sunstein recounts the most important cases in a very engaging and informative manner.
In 1842, the House opened an impeachment investigation against President John Tyler, but eventually refused to go forward by a vote of 127 to 83. Presidents Andrew Johnson and Bill Clinton were impeached by the House, but neither was convicted in the Senate. As noted, President Nixon resigned before he could be impeached. Of the 19 other federal officials who were impeached by the House, eight were convicted and removed from office, seven were acquitted, three resigned before conviction, and one case was dismissed for technical reasons.
Sunstein does a superb job analyzing the three major presidential impeachment proceedings and teasing out useful lessons. He calls the impeachment of Johnson and Clinton “unconstitutional, even farcical — case studies in what the United States should avoid.” But he dwells on the Nixon case as “a profile in constitutional courage.” The 13 pages he spends reviewing the Articles of Impeachment against Nixon is the heart of his “Citizen’s Guide” and should be required reading for anyone who ever has the temerity to offer an opinion on whether or not Donald Trump or any future president deserves to face impeachment.
Aside from one Article against Nixon for underpaying his taxes while in office by more than $400,000 (which both the House Judiciary Committee and Sunstein agree was not an impeachable offense), Sunstein endorses all of the other Articles which the Committee levied against Nixon, including nine separate counts of covering up the Watergate burglary, and three counts for abusing his powers in connection with the Internal Revenue Service, the FBI, and the CIA. In sum, Sunstein points out that if “a president uses the apparatus of government in an unlawful way, to compromise democratic processes and to invade constitutional rights, we come to the heart of what the impeachment provision is all about.” Given his agnosticism regarding Trump, Sunstein coyly adds, if “we ever get there again, let’s keep the republic,” referring to Benjamin Franklin’s famous response to a question posed at the end of the Constitutional Convention whether the delegates have given the people “a monarchy or a republic?” Franklin replied: “A republic, if you can keep it.”
Toward the end of his book, Sunstein present a very useful chapter entitled “Twenty-One Cases,” in which he describes a variety of hypothetical situations grouped as “Easy Cases: Impeachable,” “Easy Cases: Not Impeachable,” and “Hard Cases.” Armed with what he has taught us, it’s intriguing to match wits with Sunstein to see if we agree or disagree with his assessments.
Sunstein offers the example of a president who is elected “as a result of a secret plan with a nation that is unfriendly to the United States” in which the president works closely and personally with leaders of the foreign country “to disseminate false information about his political opponent.” Although there is no quid pro quo “the president’s election has unquestionably been facilitated by an explicit plan.” Sunstein considers this an easy case for impeachment despite the fact that the relevant action occurred before the president assumed office. Citing George Mason, Sunstein explains that the “debates at the Convention suggest that if the president procures office by objectionable means, impeachment is available.” Calling this a “defining example” of what impeachment is for, he drives home his point that if “the president obtains office through illicit means — and worse, by collaborating with a foreign country — self-governance has been compromised. Impeachment is available.”
Sunstein is on shakier ground regarding one of his “harder cases.” While Congress is investigating alleged presidential wrongdoing, the president strenuously resists the investigation, refuses to turn over documents, asserts executive privilege, threatens a special prosecutor, and tells the director of the FBI: “You work for me, and one thing you’re not going to do is to investigate your own boss. That’s an order.” Sunstein equivocates over whether these are impeachable offenses. He introduces a new condition which he fails to justify based on any historical, legal, or constitutional precedent: a “cover-up of activity that does not amount to a high crime or misdemeanor may not itself amount to a high crime or misdemeanor.” Why not? Authorizing the Watergate break-in may not itself be an impeachable offense, but Sunstein himself enthusiastically agrees that covering up that crime was impeachable. Sunstein himself senses the ambiguity because a few sentences later he adds that “large-scale misuse of the apparatus of the federal government could be a misdemeanor.”
Sunstein wraps up his book with a chapter aptly titled “What Every American Should Know,” in which, like all good teachers, he poses a final exam in 22 thought-provoking questions. He covers all the basics but offers some intriguing opinions as well: if an impeachment and conviction appear to violate constitutional standards, there is no legal remedy in the Supreme Court or otherwise under the doctrine that the courts do not get involved in “political questions.” Although reasonable people can differ, a sitting president cannot be indicted while in office (although Sunstein doesn’t address whether the president can be named an unindicted co-conspirator). The president (probably) cannot pardon himself.
Sunstein quotes Supreme Court Justice Louis Brandeis’s warning that “the greatest menace to freedom is an inert people.” Impeachment is a symbol and a reminder of who is really in charge and of where sovereignty resides. “As much as any provision of our founding document, it announces that Americans are citizens, not subjects.”
He concludes his excellent book on an ominous and challenging note. He worries that in a highly partisan atmosphere that can elevate party loyalty above country, 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.