How Do We Check the President?

September 17, 2018   •   By Erwin Chemerinsky

To End a Presidency

Joshua Matz

LAURENCE TRIBE AND Joshua Matz have written a wonderful book. It is simultaneously timeless in its analysis of impeachment as a tool created by the Constitution and timely in focusing on impeachment in the context of President Donald Trump and our current polarized country. It does a masterful job of telling the history of impeachment and of analyzing the meaning of this aspect of the Constitution. In addition to their careful legal analysis, Tribe and Matz offer astute political analysis of our current polarized country and the role of impeachment in this context. Their book looks at impeachment as a tool created by the Constitution and at the same time focuses on impeachment in the context of a president unlike any other in American history.

I agree with their ultimate conclusion that “when the House majority and the president belong to the same party, impeachment is a virtual nonstarter. Recent changes in the political system have only entrenched that rule.” Moreover, they are surely right that “[i]n this climate, finding sixty-seven votes to convict a president would be a Herculean task.”

Their careful review of history, however, demonstrates that this is not new or just about our current context. They quote Thomas Jefferson declaring that “impeachment is an impracticable thing, a mere scarecrow,” and Andrew Jackson asserting that impeachment “had become little better than a tale to amuse, like Utopia or Swift’s flying island.” Although the liberal billionaire Tom Steyer has launched an ambitious campaign urging President Trump’s impeachment, it has gotten little traction. In fact, such efforts may be counterproductive in that they provide a rallying point for Trump’s supporters: they argue that if Democrats take control of Congress, impeachment might result.

Ultimately, Tribe and Matz are persuasive that impeachment and removal for Trump, or for any president, is highly unlikely. Only two presidents have been impeached in American history, and neither was convicted in the Senate.

But the conclusion as to the virtual impossibility of impeachment raises a profound question. If impeachment is impossible and even talk of impeachment can be destructive, as Tribe and Matz persuasively illustrate, how do we check a president who is violating the Constitution?

This makes me wonder if the Constitution makes it too hard to remove a president. Would it be better to have some mechanism for a “no confidence” vote that can end a disastrous presidency? I am unsure. An enormous amount of damage can be done by a president in four years. After 16 months of the Trump presidency and with 32 months to go, I fear we will see this in a way unprecedented in the experience of the United States. But I also worry that in a polarized time, especially with presidents who lost the popular vote, any such mechanism would lead to a cycle of efforts to remove presidents. The history that Tribe and Matz chronicle of unpopular presidents — whether John Tyler or Harry Truman or Donald Trump — makes me think that several presidencies would have been ended early by no confidence votes. I am left wondering whether that would have been better or worse for the country.

But with no such mechanism in the Constitution and with impeachment a virtual impossibility, what can be done when the president violates the Constitution? In theory, Congress might check the president, perhaps as Tribe and Matz suggest by censure or maybe using other tools such as control over the spending power. That, though, seems quite unlikely when Congress is controlled by the same political party as the president. Certainly, thus far, the Republican Congress has shown no propensity to check President Trump.

Near the end of the book, Tribe and Matz observe, “[a]s polarization, partisanship, and tribalism have weakened external checks on the executive branch, Americans have come to rely increasingly on the president’s good faith and self-restraint.” But what happens when there is a president who is not acting in good faith and shows no proclivity for self-restraint? As Tribe and Matz note, “[t]hat’s a precarious position for any democracy — especially since our nation’s warped politics also make it more likely that voters will favor populist demagogues who pander to their darkest instincts.”

The question of how to check a president who is blatantly violating the Constitution is particularly salient with Donald Trump in office. Tribe and Matz refer several times to President Trump’s simply ignoring the “emoluments” clauses of the Constitution. Like them, I am involved in a lawsuit to stop these constitutional violations.

President Trump is violating the Constitution literally every day by receiving benefits in violation of the “emoluments” clauses. Article I, section 9, clause 8 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state. The Constitution broadly prohibits receiving any benefit from a foreign government. Yet, President Trump is constantly receiving economic benefits from foreign countries, including through hotels owned in his name.

For example, China granted the president valuable trademarks after denying them to him for years. Within days of receiving these, President Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a “one China” policy. In addition, President Trump owns the Trump International Hotel in Washington, DC, and it is clear that foreign governments are using it, rather than alternative hotels, precisely because it is owned by the president.

Article II, section 1 of the Constitution says that while in office, the president shall receive compensation for serving, but shall not receive “any other emolument from the United States.” This provision was meant to keep a president from using his position to receive other benefits from the federal government. Yet, President Trump is doing just that, as buildings he owns are renting space to the federal government and he is personally profiting.

Congress is not going to do a thing about it, let alone pursue the dramatic remedy of impeachment. But this then renders these provisions of the Constitution meaningless. Long ago, in Marbury v. Madison, Chief Justice John Marshall explained that the Constitution exists to limit the government and its limits are meaningless if they are not enforced. He also reminded us that under the Constitution, no one, not even the president, can be above the law.

The answer that emerges from this for me is the essential nature of the judiciary to stop the president from violating the Constitution. If we can’t rely on Congress to check the president, it must be the role of the courts to do so. It is imperative that the doctrines governing judicial review, such as the justiciability doctrines, not preclude the courts from performing this essential task. Too often in the past, and now, courts have used doctrines like standing and the political question doctrine to effectively immunize unconstitutional presidential actions from judicial review.

Thus far, one federal district court in New York has dismissed a suit about the emoluments clause for lack of standing and as a political question, while another federal court in Maryland has permitted a suit to go forward. Ultimately, these cases will make it to the Supreme Court, but whether it is before the end of the Trump presidency is quite uncertain. Without courts to stop this, and other constitutional violations, the president simply can ignore law.

The alternative is to leave compliance with the Constitution to the “good faith” of the president. That can’t be right in a society committed to constitutional governance and the rule of law.

Still, there is the question of when violations of the Constitution warrant talking about impeachment and pursuing it. In their preface, Tribe and Matz rightly point to the three key questions in this regard: “(1) is removal permissible; (2) is removal likely to succeed; and (3) is removal worth the price the nation will pay.

These are the questions to discuss with regard to the Trump presidency and for any in which a president seriously abuses the powers of the office and violates the Constitution. These, though, are questions that require analysis of very different considerations. Whether removal is permissible focuses on the criteria in the Constitution: treason, bribery, and high crimes and misdemeanors. Tribe and Matz persuasively argue that “high crimes and misdemeanors” is not limited to criminal activity by the president, but includes allowing removal for serious abuses of power.

Whether removal is likely to succeed is not a constitutional question, but one that requires analysis of the political situation at the moment. Also, there is the question, not addressed by Tribe and Matz, as to whether it is worth pursuing impeachment when it might succeed in the House of Representatives, but conviction is sure to fail in the Senate.

Finally, Tribe and Matz say it is important to consider whether removal is worth the price the nation will pay. I wonder, though, how that question ever can be answered in making the choice whether to pursue impeachment. There are huge costs to allowing a president to remain in office if he or she is violating the law or seriously abusing power. But there also are great costs to the disruptions of the unprecedented step of removing a president from office. I am skeptical that it ever will be possible at the moment of the impeachment and removal to know whether it is worth the costs. That inevitably is a question that can only be answered in hindsight.

Tribe and Matz are to be congratulated for having pointed us to the right questions and having given us a great deal of useful material for answering them. Their book is engaging and provocative. It is as relevant as today’s news and as timeless as the Constitution itself.


Erwin Chemerinsky is the dean of Berkeley Law School and the Jesse H. Choper Distinguished Professor of Law.