Impeachment: Practical Considerations Support Caution

14th March 2019 Off By binary
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Ross Garber

Let’s start with something about which Gene Healy and I agree. Reluctance by Republican and Democratic leaders alike to have an earnest discussion about impeachment is unwarranted. The aversion to even utter the word, often employing the euphemism “the I-word,” is ridiculous. The Republic will survive a grown-up conversation of a concept integral to the Constitution. I’d submit all would actually be better off for talking about impeachment more often.

Discussion is one thing; an actual impeachment is another matter. And it is here that Healy and I (and the other commenters) diverge. In fact, I think a conversation about impeachment will not, as Healy suggests, make impeachment a more viable remedy. Examining the rationale for the impeachment clause, the history of its application, and the potential consequences of its deployment will instead reveal why no President has ever been removed from office through impeachment and there have been only three occasions in which the process has been seriously invoked. Impeachment and removal of a duly elected president is so consequential, disruptive, and dramatic, that it should be discussed, evaluated, and understood before it is realistically considered. This Cato Unbound project and Gene Healy’s lead essay, as well as the responses from Bob Bauer and Sanford Levinson, do a significant service in furthering an open discussion of this important and perhaps timely issue.

As Healy notes, America doesn’t have much practical experience with presidential impeachment. Nobody alive today remembers the impeachment and acquittal of President Andrew Johnson. The initial steps taken by the House Judiciary Committee toward the potential impeachment of President Nixon are a distant memory, even for those of us old enough to have lived through it. The Johnson and Nixon precedents are generally, therefore, processed as historical examples, not lived experiences. The Clinton impeachment is for many Americans more instrumental in informing their practical view of the impeachment process. And it is generally not considered a process to be wished for again. Even Ken Starr, the Clinton impeachment’s most notable and aggressive advocate, has expressed regrets. No wonder. The president emerged personally and politically wounded, but even more popular than when he entered the process. On the other hand, Congress suffered real damage: the Speaker of the House was ousted, his intended successor resigned when cast as a hypocrite, and the Chairman of the Judiciary Committee was outed for his own moral failings. History has generally characterized the Clinton impeachment prosecution as politically motivated and constitutionally unwarranted.

So for all of the academic rationales for adopting a more relaxed view of impeachment, we should not ignore the many practical reasons to be wary. This is the perspective I hope to add to this conversation. In addition to teaching Impeachment Law at Tulane Law School, I am a practicing impeachment lawyer, having served as lead defense counsel to most of the U.S. governors who have faced impeachment proceedings since the Clinton experience nearly two decades ago.

My academic work and practical experience have identified several reasons why we should continue to be cautious about impeachment. Here are a few:

  • Impeachment is immensely disruptive to the normal function of governing. As Healy points out, the language of violence permeates impeachment discussions. It has been called a “constitutional nuclear weapon” and a “political death sentence.” Noted historian James Bryce wrote that impeachment “is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at.” The strength of this language reflects the virulence of emotions held by those with stakes in the process. Impeachment threatens to take from a President the office, reputation, and legacy for which he has fought, risked and sacrificed. It imperils political alliances. It threatens to discard the votes of millions of people who sacrificed their time to cast ballots. It undoes a result in which campaign donors invested funds. On the other side are opponents motivated by both virtue and political opportunism, but almost certainly possessing equal fervor. In other countries those in power are overthrown by violence; it is not surprising that language of force populates discussions of potential power changes outside the normal democratic process in the U.S.

    Given the stakes, it is simply not realistic to expect a White House facing an existential threat to not be distracted from matters of policy. The same can be said for a Congress undertaking an impeachment process. And certainly, the narrow attention span of the media and the public will be occupied by the greatest political show on earth.

  • Impeachment interferes with the normal balance of powers. In accomplishing their respective roles, Congress and the President engage in a constitutionally orchestrated dance of power and prerogatives. This is upended in an impeachment, where Congress can dominate the Executive Branch. This reality has long been recognized by scholars. Raoul Berger called impeachment an “exception to the separation of powers.” Harvard Professor Laurence Tribe wrote that when Congress considers impeachment, it puts one “branch in a position to sit in judgment on another, empowering the Congress essentially to decapitate the executive branch in a single stroke….” Impeachment, Tribe noted, “involves the uniquely solemn act of having one branch essentially overthrow another.” The impeachment scholar Charles Black identified the imminence of impeachment proceedings as the “most critical point possible in the relations” between the branches of government. In an impeachment, the balance between the branches of government gives way to a wrestling match for control.

  • Impeachment is antithetical to the American democratic process, risking political reprisal from those whose votes would be undone. In our Constitutional system the president is chosen by citizens who sacrifice their valuable time to evaluate candidates and cast ballots. Removal by impeachment nullifies their votes and risks political reprisal from those who participated in elections and know that the American constitution does not countenance legislative votes of no confidence. Black correctly noted that the “frustration of popular will” should not occur except when necessary to remedy the most egregious misconduct that “corrupt[s] or subvert[s] the political and governmental process”; otherwise, impeachment would itself undermine the political process and the chief executive’s accountability to the electorate whose interests he or she is charged with serving. Politicians pushing impeachment may be met with opprobrium from those whose votes are discarded.

  • There are usually other, less violent remedies than impeachment. Before resorting to impeachment, Congress will continue to explore less disruptive and risky remedies. It can use its budget and oversight powers to rein in presidential overreach. The courts can check presidential abuses of power on a case-by-case basis. Press coverage of scandals can imperil a president’s reelection prospects and the electoral fortunes of his party members, diminishing his political power. A president may face civil liability for injuries done to others and possible criminal prosecution (at least after leaving office). Congress might also be able to resort to censure. Before embarking on an impeachment effort, Congress will (and should) generally evaluate these less drastic options.

  • Impeachment creates uncertainty, which could affect American foreign policy and the financial markets. Foreign leaders may not be sanguine that a particular president will serve out his or her term, imperiling negotiations with an administration. Impeachment could also threaten the stability upon which financial markets depend.

These are but some of the practical consequences of traveling down the road to impeachment. For these reasons, and the theoretical underpinnings of our constitutional system, impeachment must, in the words of Stanford Professor Jack Rakove, “remain a remedy to be deployed only in extremely serious and unequivocal cases, where [there is] a high degree of confidence that the conduct in question falls squarely and unambiguously within the parameters of a persuasive definition, and where the insult to the constitutional system is grave indeed.”

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