The Mystification of Impeachment
By Jane ChongDecember 3, 2018
Impeachment: A Handbook by Charles L. Black Jr. and Philip Bobbitt
To End a Presidency by Joshua Matz and Laurence Tribe
A similar observation might be made of our struggle to fit legal concepts to the circus of our present political reality. Law, or something that sounds like it, is dutifully wheeled out for every debate and every scandal, but rarely to facilitate the kind of shared understanding that might loosen partisan gridlock. Instead of serving as a means for understanding presidential conduct, law has become a way to distance ourselves from the obvious — to condescend rather than illuminate, to rage or defend rather than comprehend.
To make sense of the unprecedented fact patterns streaming from the White House, the major television networks have taken to nightly consulting an array of talking heads to guide the country through an endless series of technical lectures about what the president may and may not do as a matter of right. Is it obstruction for the president to fire the FBI director to cool down a politically undesirable investigation? Can the president pardon himself for past and future offenses? What becomes of a national security secret if the president decides, on a lark, to share it with Russia? Is collusion with a foreign power a crime?
Enmeshed in all these questions is this one: has the president finally crossed some incontrovertible line — has he committed an offense worthy of an impeachment inquiry?
As controversial subjects go, impeachment is reliably hyperlegal and lawless. This is not helped by the fact it is widely misunderstood as a matter of public referendum. Strictly speaking, the US presidential election is the biggest of popularity contests (albeit an imperfect one, thanks to the Electoral College). The late Charles L. Black Jr. put it simply in his classic 1974 citizen’s guide, Impeachment: A Handbook: the election of the president and his (or her) running mate is “the only political act that we perform together as a nation.” The president’s removal, however, does not hinge on popularity. A president can be properly impeached only for a high crime or misdemeanor — Article II of the Constitution specifically cites treason and bribery as examples — and careful deliberation on those issues lies with Congress. Congress is entrusted to discharge this duty in good faith; as Laurence Tribe and Joshua Matz observe in To End a Presidency: The Power of Impeachment, an important recent addition to a burgeoning but highly uneven literature, “impeachments are no place for small minds or low politics.”
Hence the unseemliness of the public impeachment drive recently funded by billionaire Tom Steyer (in his time, Black criticized even public opinion polls on presidential guilt or innocence as an "unspeakable indecency”). Funding a campaign to impeach a president is not entirely unlike, say, funding newspaper ads proclaiming the guilt of the accused in a criminal case. It is a mismatch of substance and process; it is personal agenda masquerading as American law.
Black’s tidy little handbook dispenses with personal agenda in favor of a crisp exposition of American law. Published shortly before the resignation of President Nixon and reprinted two months before the impeachment of President Clinton, the book is a recognized model of principled legal reasoning. Rather than instructing readers on what to think about any particular president, Black provides guidance on how to think about the Constitution — the institutional relationships it ordains, the processes it prescribes, the duties it confers. He acknowledges partisan rancor and gamesmanship without accepting they need dictate our approach to the serious business of impeachment. In fact, Black firmly rejects the conflation, emphasizing that conscientious decision-making is not an idealist construct but an essential predicate for a democratic republic governed by law.
Black’s book has now been reissued for the Trump era with a new preface and four supplemental chapters by Philip Bobbitt. It would be accurate, if superficial, to describe the result as a valuable update. In the new chapters, Bobbitt considers developments in presidential impeachments since 1974, and debunks some of the most pernicious fallacies to plague impeachment discussions. He also extends Black’s reasoning to bots, emoluments, and other distinctly present-day problems. But summary does not convey the deeply satisfying symmetry of this hybrid edition: half Black, half Bobbitt.
Bobbitt is, for several generations of lawyers, the godfather of what might be described as constitutional “how.” His own contribution to the short list of deceptively slim, field-defining constitutional classics is the 1982 text Constitutional Fate, in which he divided the grammar of constitutional argument into six "modalities”: historical, textual, structural, doctrinal, prudential, and ethical. Much has been written in praise of his taxonomy, but perhaps not enough has been said of the essentially democratic character of this work. Like Black, Bobbitt renders the forms of constitutional reasoning accessible and meaningful, not just to the fledgling law student, but also to the concerned lay citizen.
Bobbitt’s scholarship is faithful to what Black described as the “cardinal principle” of constitutional interpretation, a commitment to rendering something “workable and reasonable” — and specifically, Bobbitt achieves this by arming readers with the structures and syntax to take up the interpretive task themselves. Arguments of a practical cast, remarked Black, “have the advantage that laymen can understand them — in itself not an inconsiderable merit when one is dealing with a constitution meant for all.” This quality is on full display in Bobbitt’s additions to Black’s unimpeachable original text.
In the interest of full disclosure, I note I am the commentator Bobbitt cites in his preface to the new edition for the proposition that Black’s handbook is “the most important book ever written on presidential impeachment.” I hold fast to my praise because Black’s work — now Black and Bobbitt’s — continues to set the standard for responsible study of a subject that is easy and advantageous to misunderstand. This is a book that performs its message, exercising as well as urging common sense and educated restraint. To paraphrase Black, it puts a premium on understanding key questions over committing to definite answers.
When these questions are ignored in favor of answers, it is usually by those who confuse impeachment law with impeachment culture. To End a Presidency: The Power of Impeachment addresses this problem by providing a timely and measured study of the relationship between the two. Its most compelling chapter tracks the history of what the authors describe as “impeachment talk.” Their focus here is on the complex role that this particular species of political rhetoric has come to play in everyday American life — not merely or even primarily as a tool to remove a president from office, but as a form of personal censure, as a lever in policy hardball, as a trick for turning out the base for a midterm election, and as an ignoble trope in fanning the flames of partisan warfare.
This meditation on impeachment talk is appropriately nestled between an efficient chapter on Congress’s role as the “decider” of impeachment and an exploratory chapter on the implications of intensifying national tribalism for the impeachment power. In this way, it serves in the book (and in the reader’s mind) as a bridge between two important objectives: understanding how impeachment works as a matter of constitutional law, and understanding the cultural significance of impeachment within the increasingly hysterical landscape of American politics.
Tribe and Matz conclude that it is only in modern times that impeachment has become a permanent rhetorical fallback. For most of our country’s history, presidential impeachment talk surfaced only sporadically in our politics, and its baseless invocation was more likely to ruin the accuser than the accused. Tribe and Matz trace the beginnings of modern impeachment partisanship to President Harry Truman’s 1951 showdown with General Douglas MacArthur, who was relieved of his command after he sabotaged Truman’s negotiations for a cease-fire with China and North Korea. The fever broke and impeachment talk died back down for decades, surging only intermittently in response to Watergate and the Iran-Contra Affair.
With this framing, Tribe and Matz counter the conventional wisdom that Watergate ushered in a permanent “age of impeachment.” Americans were hardly eager to relive or prolong the trauma of that period, the authors observe, and impeachment talk only became an abiding feature of our politics some 20 years later, with the spectacle that ended in the impeachment of Bill Clinton. According to the authors, to a previously unseen degree, President Clinton “never stopped running” for president and ushered in the era of the permanent campaign. This change in how presidents govern helped provoke an equal and opposite reaction, the permanent impeachment campaign.
Tribe and Matz set forth a sufficiently rich set of historical facts to accommodate some variations on their chosen narrative. For instance, they note that when President Woodrow Wilson embarked on his cross-country tour to stump for the League of Nations, he became the target of “a rare display of mass, popular impeachment talk before the 1950s.” But this detail might seem less incidental to those who view that fiery orator as the first truly modern president, and his tenure as the dawn of the “rhetorical presidency.” On that view, Wilson exploded the model of neutral presidential statesmanship. Whereas his predecessors for the most part confined their policy statements to Congress and kept their public rhetoric broad and inclusive, Wilson embraced direct appeals to public opinion as a central component of strong presidential leadership and radically transformed the office in the process.
For proponents of this particular take on 20th-century presidential metamorphosis, Tribe and Matz’s study of impeachment talk is most interesting where it discusses the costs of swapping out our national statesman for a party quarterback. Our newish conception of what makes for a competent president — a definite policy agenda, a talent for public persuasion, and a commitment to campaigning as a form of governing — also makes it impossible for any president to command the respect of much more than half the citizenry.
How unsurprising, then, that impeachment talk has emerged as the executive analogue of the immortal court-packing proposal: these amount to expressions of a special breed of political disappointment whose only solution, we imagine, is a regime change. As with certain other key national institutions, our faith in the presidency has become contingent on the identity of the party controlling it. It is no faith at all.
In these times, the role that law plays in the public square can feel necessary without being salutary; it provides a vocabulary for discussing the emperor’s clothes or, at best, serves as a ventilator for a country undergoing political cardiac arrest. But still, impeachment of a sitting president is not a topic to be lightly batted around. Tribe and Matz rightly observe that impeachment implicates not just the president, but also “America’s influence and authority in the world, and Americans’ national self-conception.” It would be devastating to our system of governance if impeachment were to succeed as a political ploy, to be trotted out every time the party controlling the House had policy differences with or personal animus for the person duly elected to hold the country’s highest office (point of disclosure — as they note, I am among those who have argued that even where impeachment is necessary, national recovery is slow and unsure). Anyone nervous about the total breakdown of norms and obligations in Washington — say, about the constitutional distortions made possible when the Senate refuses to vote on the president's Supreme Court nomination, or when the president pardons a man convicted of judicial contempt and a host of civil rights violations — should also support a cautious and principled approach to undoing national elections.
But there is a difference between recognizing the seriousness of impeachment and denying the seriousness of presidential misconduct. We wrongly diminish that difference every time we bewail impeachment as a hopelessly partisan weapon, or as a necessarily nuclear one.
The first of these, the mischaracterization of impeachment as a political rather than legal question, makes for a particularly egregious form of constitutional mystification. The mistake is intolerable for many reasons, not least because it lets our representatives off the hook. If impeachment is not a legal process that by constitutional prescription is entrusted to a political branch — if it is better understood a mysterious political mechanism whose use turns wholly on the popular kids achieving the critical mass necessary to vote out the homecoming king — members of Congress can hardly be faulted for declining to carefully assess and scrupulously levy their impeachment and removal powers.
The second mischaracterization, of impeachment as a button to be pushed only when the leaves have already been blasted off the trees by gross presidential overreach, makes for a different kind of problem. We forget that doing nothing has consequences, a mental tic that two decades ago Bobbitt dubbed Parmenides’ Fallacy, for the Greek philosopher who denied the possibility of change. We commit the fallacy whenever we assess a future state of affairs by comparing it against the static present instead of other possible futures.
Bobbitt uses the example of the 1980 presidential race, when Ronald Reagan sniped at President Jimmy Carter with a rhetorical question posed to the American public: “Are you better off today than you were four years ago?” Bobbitt points out that from an analytical perspective this was, of course, the wrong question. The right question was whether the American public was better off under Carter than it would have been had Gerald Ford won a second term.
Similarly, as Tribe and Matz suggest, it is incorrect to assume that impeaching a president will rock the historical boat, and that not impeaching him will allow our republic to stay the course. The conduct of past presidents may have warranted sparing use of this particular rod, but that says little about the president of our present and the assurances we may derive from not impeaching him. Worry about the normalization of impeachment must be balanced with worry about the abnormalization of the presidency.
Tribe and Matz point out that one consequence of declining to consider an impeachment inquiry in the face of flagrant presidential misconduct might be an exceedingly high bar for what kind of conduct warrants an impeachment inquiry in the future. We have only ever had 44 presidents, making it difficult to get out from under the precedents established under the administration of even a single president. Future presidents may be able to demand investigations into their political opponents without risking impeachment, and even remove key Justice Department officials who refuse to tailor their investigations to White House demands. It is not merely action but failure to take action that changes the baseline for what passes as acceptable presidential conduct.
A few days after the 2016 election, shortly before his death, the critic John Berger commented to the curator Paul Holdengräber that the target of the American electorate's anger is a new kind of elite, who specializes in abstraction — “the elite that talks and talks and talks and there is no connection between his talk and his actions and what is really happening in the world.” The empty performance that Berger so aptly described as a kind of toxic political propellant can be exacerbated through our legal discourse, or tempered. But it seems possible that the subject of presidential impeachment is especially frustrating because, for the responsible citizen at least, the menu of options is in fact limited. It involves a lot of talk. Every worthwhile study of impeachment, as law or as culture, reminds us that in this space there is no clearly right course of action, except to educate ourselves and to vote conscientiously, for representatives and senators we trust to do the same. November is coming, always.
Jane Chong is a former editor of Lawfare. The views expressed here are her own.
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