A Constitutional Safety Valve

7th March 2019 Off By binary
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Gene Healy

Impeachment is a constitutional safety valve, not to be triggered lightly, but available for public protection when needed. Yet judging how they talk about it, many of America’s political and intellectual leaders have come to view the remedy itself as a menace to ordered liberty—a sort of doomsday device that the Framers, in their perversity, wired into our Constitution. NYU Law’s Bob Bauer terms this orientation “Impeachment Anxiety Syndrome,” a coinage that, if anything, understates its intensity. Our political culture has drifted past a prudent reluctance to “normalize” impeachment, toward something approaching mortal fear of the impeachment process.

“Be very careful before you move the country toward impeachment,” former independent counsel Ken Starr warns, “It’s inherently divisive.” (Now he tells us.) In fact, says Bill Clinton’s erstwhile nemesis, “Impeachment is hell.”

In early 2018, after delivering a fiery speech likening President Trump to Stalin, then-Senator Jeff Flake (R-AZ) clarified his position: he’s “not one of those who run around calling for our president to be impeached. He’s done nothing in my view that would warrant that.” That March, when Trump appeared poised to fire special counsel Robert Mueller, Flake conceded that impeachment might be a last resort, but sounded positively panic-stricken about the prospect: “Nobody wants to talk about it. I don’t want to talk about it. As soon as you mention the I-word, that’s all people want to talk about.” Running for a Senate seat last Fall, Mitt Romney was less agitated, if only because he found the very idea inconceivable: “I don’t think it makes sense to be talking about impeachment, not for a sitting president”—a stipulation that would somewhat hamper the remedy’s usefulness.

Impeachment aversion isn’t limited to Trump’s critics on the Right. Even liberal comedians and professional Blue-Team partisans recoil from “I-word” talk. “If Donald Trump is to leave office, it should be through political means,” says Late Show host Stephen Colbert, not “extreme constitutional remedies.” “If we ‘normalize’ impeachment as a political tool,” frets former Obama campaign guru David Axelrod, “it will be another hammer blow to our democracy.” One could hardly find a more rabid critic of the current president than Harvard’s Laurence Tribe, who’s variously described Trump as “batshit crazy,” a “crime boss,” and “compromised by foreign dictators.” Yet Tribe, too, insists that impeachment should only be approached in fear and trembling. In their 2018 book To End a Presidency, Tribe and coauthor Joshua Matz admonish that impeachment is “a great power and a terrible one,” its use fraught with “extraordinary danger.” If, God forbid, we ever need to deploy it, “we can hope only that the nation survives with its spirit intact and the strength to rebuild all that’s broken.”

Is impeachment really as grave as all that? Our Constitution’s Framers were considerably less angsty about it: few, if any, viewed the prospect of a presidential pink-slip with the unbridled horror now common among political and intellectual elites. At the Philadelphia Convention, Massachusetts’ Eldridge Gerry insisted: “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.” Benjamin Franklin viewed the clause as “favorable to the executive,” providing for “regular punishment… when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” North Carolina’s Hugh Williamson thought there was “more danger of too much lenity than of too much rigour towards the President.” Given our paltry record of presidential impeachments—only three serious attempts in 230 years—Williamson was more right than he knew.

To be sure, the attempted removal of a “sitting president” was serious business, never to be undertaken casually. In Federalist 65, Hamilton writes of “the awful discretion, which a court of impeachments must necessarily have, to doom [the accused] to honor or to infamy.” He also believed that discretion to be necessary, periodically, as “an essential check in the hands of [the legislative] body upon the encroachments of the executive.”

In that essay, Hamilton described impeachment’s scope as involving, “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” By its nature, such a proceeding “can never be tied down by such strict rules… as in common cases serve to limit the discretion of courts.”

In fact, the constitutional grounds for impeachment are much broader than popularly understood. In its comprehensive 1974 report on the subject, the House Judiciary Committee staff identified three categories of misconduct held to be impeachable offenses in American constitutional history: (1) exceeding the constitutional bounds of the office’s powers; (2) using that position for personal gain; (3) “behaving in a manner grossly incompatible with the proper function and purpose of the office.”

Any citizen following our public debate—listening to Alan Dershowitz or even Nancy Pelosi, for example—would come away with a much narrower understanding: one that limits constitutional impeachment to large-scale, criminal abuses of official power.

But had the Framers restricted impeachable offenses to crimes, for example, impeachment would have been a dead letter from the start. In the early years of the republic, there were hardly any federal crimes on the books. Of our first three impeachment cases (1797–1805) only one involved anything that could be described as criminal behavior. And throughout our entire constitutional history, according the Congressional Research Service, fewer than a third of the impeachments approved by the House “have specifically invoked a criminal statute or used the term ‘crime.’”

The early cases, in the decade and a half following ratification, reflect a liberal understanding of “high Crimes and Misdemeanors.” In fact, the first impeachment case to result in conviction and removal from office involved a federal judge whose main offense was showing up to work drunk and ranting like a maniac in court. That was John Pickering, who, according to the articles of impeachment passed by the House in 1803, had revealed himself to be a man “of loose morals and intemperate habits,” guilty of “high misdemeanors, disgraceful to his own character as a judge.” And throughout American history, federal officers have been impeached for offenses ranging from petty corruption, to neglect of duty, to withholding information from Congress, and degrading public confidence in their fitness to wield power.

At the Constitutional Convention, James Madison described impeachment as an “indispensable” provision for “defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate.” Unlike modern commentators, Madison worried less about the destabilizing effects of removal than the perils of keeping an unfit president in office. The unitary nature of the presidency made incapacity or corruption far more dangerous in the executive branch than in Congress or the judiciary. “The Executive magistracy… was to be administered by a single man,” and “loss of capacity” in that case “might be fatal to the Republic.”

My recent study on impeachment takes its title, “Indispensable Remedy,” from the adjective that both Madison and George Mason used to describe the constitutional means for presidential removal.

And yet, when it comes to the chief executive officer of the federal government, we’ve all but dispensed with the option. In the 230 years since the Constitution’s ratification, we’ve impeached only two: Andrew Johnson in 1868 and Bill Clinton 13 decades later. True, the impeachment process drove Richard Nixon from office, even though he resigned before the full House could vote—so call it three. That still means that only around one in 15 presidents has ever faced a serious threat of removal from office.

Historically, three quarters of American presidents never even faced a theoretical threat of removal. Though any member of the House can introduce articles of impeachment, it’s vanishingly rare that anyone tries. In our entire constitutional history, only 11 of 44 presidents have had articles formally drawn up against them.

In To End a Presidency, Tribe and Matz argue that lately, however, the I-word has become distressingly “normalized”—“modern Americans live in the post-Clinton age of a permanent impeachment campaign.” There’s no doubt that impeachment talk has become far more common since Donald J. Trump’s election—its prevalence is another indication that this presidency, and perhaps the reaction to it, is “not normal.”

But one has to strain to unearth evidence of “the normalization of impeachment” in the post-Clinton, pre-Trump era. The four presidential terms prior to Trump’s ascension saw a total of three impeachment resolutions formally introduced in the House, all against President George W. Bush (all of which died in committee); zero for President Obama. “Throughout Obama’s second term,” Tribe and Matz write, “impeachment was unavoidable everywhere except in the halls of Congress, where no one dared propose it”—in other words, everywhere but where it might matter.

If impeachment was supposed to be indispensable, why have we deployed it so infrequently? One obvious answer is that our Constitution makes it very difficult to remove a president. Conviction in the Senate requires “the Concurrence of two thirds of the Members present.” And most people believe—incorrectly, in my view—that without a Senate conviction, impeachment by the House is an act of futility.

It’s likely that most of the Framers didn’t appreciate the effect of the supermajority requirement, which came late in the Convention and passed without comment, seemingly unnoticed. But the high structural barrier alone can’t explain why presidential impeachments have been so extraordinarily rare.

Our Constitution makes it hard—perhaps too hard—to remove a president. But we’ve made it harder still by erecting barriers to impeachment nowhere to be found in the Constitution. Among those self-imposed restraints are the legal misconceptions mentioned above, such as the notion that impeachment is reserved solely for felonious abuses of official power. But cultural superstitions surrounding the remedy have been at least as significant a disincentive as legal error.

Impeachment talk is tinged with suggestions of blasphemy or violence. The euphemism “I-word” dates back to at least the late-80s “when it was used with reference to Democrats’ reluctance to call for Reagan’s impeachment during the Iran-Contra scandal,” according to the OED’s blog. It’s “a rhetorical device” reflecting the fact that “earnest discussion of the possibility of impeachment is still regarded by many politicians and journalists as a bridge too far,” a taboo that extends “even to broaching the topic of impeachment.” Well before Trump, impeachment had become the constitutional procedure that dare not speak its name.

On the rare occasions that the subject is broached, normally sober and judicious scholars resort to bloody hyperbole. Impeachment is “high-risk major surgery”; or “the political equivalent of capital punishment,” allowing Congress “to decapitate the executive branch in a single act. It’s worse than that, NYU’s Ronald Dworkin insisted in 1998: “the power to impeach a president is a constitutional nuclear weapon.”

Now, as in past impeachment debates, pundits, pols, and professors conjure up specters of wounded democracy and constitutional collapse, describing impeachment as “reversing an election” and “overturning the will of the people.” By “going there,” we risk “opening Pandora’s Box” and unleashing a host of evils, including, quite possibly, civil war. At the very least, Tribe and Matz argue, “there can be little doubt that a successful impeachment campaign would inflict enduring national trauma.” But I, for one, doubt it. Such fears are radically overblown. Impeachment neither vandalizes democracy nor threatens constitutional crisis, nor does our (admittedly limited) experience suggest that it’s especially destabilizing.

Whatever one’s assessment of the current president, the notion that impeachment is a “constitutional nuclear weapon” is unhealthy for our democracy. Over the last century, the American presidency has been transformed from a comparatively modest “chief magistrate” into the “most powerful office in the world.” And, as the power of the office has grown, “Impeachment Anxiety Syndrome” has grown with it, ensuring that the officeholder enjoys greater job protection than virtually any other American.

It’s employment-at-will for most of us, termination for-cause at the commanding heights of the economy. But we’ve somehow managed to convince ourselves that the one job in America where you have to commit a felony to get fired is the one where you actually get nuclear weapons.

That is not how our system is supposed to work, it’s not what our Constitution requires, and it’s not what we should accept for an office as powerful and dangerous as the American presidency.

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