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Americans Should Impeach Presidents More Often

Gene Healy

Impeachment talk in the nation’s capital rose from a murmur to a
dull roar in mid-May, thanks to a week jam-packed with Nixonesque
“White House horrors.” On Tuesday, May 9, President
Donald Trump summarily fired FBI director James Comey; on Thursday,
Trump admitted the FBI investigation into “this Russia
thing”—attempts to answer questions about his campaign’s
links with Moscow—was a key reason for the firing; Friday
found Trump warning Comey he’d “better hope that there are no
‘tapes’ of our conversations”; and the following
Tuesday The New York
Times
 reported the existence of a Comey memo on Trump’s
efforts to get the FBI director to “let this go.” Along
the way, Trump may have “jeopardized a critical source of
intelligence on the Islamic State” while bragging to Russian
diplomats about his “great intel,” according
to The Washington Post.

Still, the Beltway discussion of impeachment remained couched in
euphemism, as if there was something vaguely profane and
disreputable about the very idea. “The elephant in the
room,” an NPR story observed, “is the big ‘I’
word—impeachment”; “the ‘I’ word that I think we
should use right now is ‘investigation,’” House Judiciary
Committee member Rep. Eric Swalwell (D-Calif.) told CNN’s Wolf
Blitzer.

We don’t call it “the v-word” when the
president signals he might veto a bill. Yet somehow, when it comes
to the constitutional procedure for ejecting an unfit president,
journalists and Congress members—grown-ups,
ostensibly—are reduced to the political equivalent of
h-e-double-hockey-sticks.”

What’s really obscene is America’s record on presidential
impeachments. We’ve made only three serious attempts in our entire
constitutional history: Andrew Johnson in 1868, Bill Clinton in
1998—both of whom were impeached but escaped
removal—and Richard Nixon, who quit in 1974 before the House
could vote on the issue. Given how many bastards and clowns we’ve
been saddled with over the years, shouldn’t we manage the feat more
than once a century?

A ‘National Inquest Into the Conduct of Public
Men’

We’ve made only three
serious attempts in our entire constitutional history. Given how
many bastards and clowns we’ve been saddled with over the years,
shouldn’t we manage the feat more than once a century?

Impeachments “will seldom fail to agitate the passions of
the whole community, and to divide it into parties,” Alexander
Hamilton predicted in the Federalist. That’s how
it played out during our last national debate on the subject,
during the Monica Lewinsky imbroglio of the late ’90s.

The specter of Bill Clinton’s removal from office for perjury
and obstruction of justice drove legal academia to new heights of
creativity. Scads of concerned law professors strained to come up
with a definition of “high Crimes and Misdemeanors”
narrow enough to let Bill slide. In a letter delivered to Congress
as the impeachment debate began, over 430 of them warned that
unless the House of Representatives wanted to “dangerously
weaken the office of the presidency for the foreseeable
future” (heaven forfend), the standard had to be “grossly
heinous criminality or grossly derelict misuse of official
power.”

Some of the academy’s leading lights, not previously known for
devotion to original intent, proved themselves stricter than the
strict constructionists and a good deal more original than the
originalists. The impeachment remedy
was so narrow, Cass Sunstein insisted, that if
the president were to up and “murder someone simply because he
does not like him,” it would make for a “hard case.”
Quite so, echoed con-law superprof Laurence Tribe: An impeachable
offense had to be “a grievous abuse of official power,”
something that “severely threaten[s] the system of
government.”

Just killing someone for sport might not count—after all,
Tribe pointed out, when Vice President Aaron Burr left a gutshot
Alexander Hamilton dying in Weehawken after their July 1804 duel,
he got to serve the remaining months of his term without getting
impeached. Still, Tribe generously allowed, in the modern era
“there may well be room to argue” that a murdering
president could be removed without grave damage to the
Constitution.

In the unlikely event that Donald Trump orders one of his
private bodyguards to whack Alec Baldwin, it’s a relief to know
that Laurence Tribe will entertain the argument for impeachment.
But does constitutional fidelity really require us to put up with
anything short of “grievous,” “heinous,”
existential threats to the body politic?

The Framers borrowed the mechanism from British practice, and
there it wasn’t nearly so narrow. The first time the phrase
appeared, apparently, was in the 1386 impeachment of the Earl of
Suffolk, charged with misuse of public funds and negligence in
“improvement of the realm.” The Nixon-era House Judiciary
Committee staff report Constitutional Grounds for
Presidential Impeachment
 described the English precedents
as including “misapplication of funds, abuse of official
power, neglect of duty, encroachment on Parliament’s prerogatives,
[and] corruption and betrayal of trust.”

As Hamilton explained in the Federalist, “the
true spirit of the institution” was “a method of national
inquest into the conduct of public men,” the sort of inquiry
that could “never be tied down by such strict rules…as in
common cases serve to limit the discretion of courts.”

Among those testifying beside Sunstein and Tribe in 1998 was
Northwestern’s John O. McGinnis, a genuine originalist, who argued
that the Constitution’s impeachment provisions should be viewed in
terms of the problem they were designed to address: “how to
end the tenure of an officer whose conduct has seriously undermined
his fitness for continued service and thus poses an unacceptable
risk of injury to the republic.”

Contra Tribe, who’d compared impeachment to “capital
punishment,” McGinnis pointed out that the constitutional
penalties for unfitness—removal and possible disqualification
from future office holding—went “just far enough,”
and no further than necessary, “to remove the threat
posed.” In light of the structure and purpose of impeachment,
he argued, “high Crimes and Misdemeanors” should be
understood, in modern lay language, roughly as “objective
misconduct that seriously undermines the official’s fitness for
office…measured by the risks, both practical and symbolic, that the
officer poses to the republic.”

Today, even the president’s political enemies tend to set the
bar far higher. Donald Trump has acted in a way that is
“strategically incoherent,” “incompetent,” and
“reckless,” Democratic leader Rep. Nancy Pelosi said in
February, but “that is not grounds for impeachment.”

But incoherence, incompetence, and recklessness are evidence of
unfitness, and when we’re talking about the nation’s most powerful
office they can be as damaging as actual malice. It would be a
pretty lousy constitutional architecture that only provided the
means for ejecting the president if he’s a crook or a vegetable,
but left us to muddle through anything in between.

Luckily, Pelosi is wrong: There is no constitutional barrier to
impeaching a president who demonstrates gross incompetence or
behavior that makes reasonable people worry about his proximity to
nuclear weapons.

Impeachable Ineptitude

When Barack Obama was president, Trump once asked, “Are you
allowed to impeach a president for gross incompetence?”
Earlier this year, Daily Show viewers found that
tweet funny enough to merit the “Greatest Trump Tweet of All
Time” award. Still, it’s a valid question.

The conventional wisdom says no, largely on the basis of a
snippet of legislative history from the Constitutional Convention.
As James Madison’s notes recount, when Virginia’s George Mason
moved to add “maladministration” to the Constitution’s
impeachable offenses, Madison objected: “So vague a term will
be equivalent to a tenure during pleasure of the Senate.”
Mason yielded, substituting “other high crimes &
misdemeanors.”

But the Convention debates were held in secret, and Madison’s
notes weren’t published until half a century later. Furthermore,
the language Mason substituted was understood from British practice
to incorporate “maladministration.” Nor did Madison
himself believe mismanagement and incompetence to be clearly
off-limits, having described impeachment as the necessary remedy
for “the incapacity, negligence, or perfidy of the chief
Magistrate.”

Thus far, the Trump administration has been a rolling Fyre
Festival of negligence and maladministration, from holding a
nuclear strategy session with Japan’s prime minister in the crowded
dining room of a golf resort to having the former head
of Breitbart News draft immigration orders
without the assistance of competent lawyers. Near as I can tell,
James Comey’s verbal incontinence had a bigger impact on the 2016
election than Russian espionage, but liberals hold out hope for a
“smoking gun” of collusion that’s unlikely ever to
emerge. Meanwhile, the Trump administration was apparently clueless
that firing the FBI director in the midst of the Russia
investigation would be a big deal, and Trump himself was unaware
that admitting he did it in hopes of quashing the inquiry was a
stupid move.

As the Comey story emerged, pundits and lawbloggers debated
whether, on the known facts, the president’s behavior would support
a federal felony charge for obstruction of justice. But that’s the
wrong standard. As the Nixon Impeachment Inquiry staff report
pointed out: “the purpose of impeachment is not personal
punishment. Its purpose is primarily to maintain constitutional
government.” Even if, to borrow a phrase from Comey, “no
reasonable prosecutor” would bring a charge of obstruction on
these facts, the House is free to look at the president’s entire
course of conduct and decide whether it reveals unfitness
justifying impeachment.

A Rhetorical Question?

The Nixon report identified three categories of misconduct held
to be impeachable offenses in American constitutional history:
“exceeding the constitutional bounds” of the office’s
powers, using the office for “personal gain,” and, most
important here, “behaving in a manner grossly incompatible
with the proper function and purpose of the office.”

When Trump does something to spark cries of “this is not
normal,” the behavior in question often involves his Twitter
feed. The first calls to impeach Trump over a tweet came up in
March, when the president charged, apparently without evidence,
that Obama had his “wires tapped” in Trump Tower.

The tweet was an “abuse of power,” “harmful to
democracy,” and potentially impeachable, Harvard Law’s Noah
Feldman proclaimed: “He’s threatening somebody with the
possibility of prosecution.” Laurence Tribe, of all people,
agreed. Murder may have been a hard case, but slander? Easy call.
Trump’s charge qualified “as an impeachable offense whether
via tweet or not.”

I confess it wasn’t the utterly speculative threat to Barack
Obama that disturbed me about Trump’s Twitter feed that day in
March; it was that a mere two hours after lobbing that grenade,
Trump turned to razzing Arnold Schwarzenegger for his
“pathetic” ratings as host of Celebrity
Apprentice
. The Watergate tapes exposed much more than a
simple abuse of power. They revealed a fragile, petty, paranoid
personality of the sort you’d be loath to entrust with the vast
authority of the presidency. And Nixon didn’t imagine that the
whole world would be listening. Trump’s Twitter feed is like having
the Nixon tapes running in real time over social media, with the
president desperate for an even bigger audience.

As it happens, there’s precedent for impeaching a president for
bizarre behavior and “conduct unbecoming” in his public
communications. The impeachment of Andrew Johnson gets a bad rap,
in part because most of the charges against him really were bogus.
The bulk of the articles of impeachment rested on Johnson’s
violation of the Tenure of Office Act, a measure of dubious
constitutionality that barred the president from removing Cabinet
officers without Senate approval.

But the 10th article of impeachment against Johnson, based on
different grounds, has gotten less coverage. It charged the
president with “a high misdemeanor in office” based on a
series of “intemperate, inflammatory, and scandalous
harangues” against Congress. In a series of speeches in the
summer of 1866, Johnson had accused Congress of, among other
things, “undertak[ing] to poison the minds of the American
people” and having “substantially planned” a race
riot in New Orleans that July. Such remarks, according to Article
X, were “peculiarly indecent and unbecoming in the Chief
Magistrate” and brought his office “into contempt,
ridicule and disgrace.”

‘Peculiar Indecencies’

From a 21st century vantage point, the idea of impeaching the
president for insulting Congress seems odd, to say the least. But
as Jeffrey Tulis explained in his seminal work The
Rhetorical Presidency
, “Johnson’s popular rhetoric
violated virtually all of the nineteenth-century norms”
surrounding presidential oratory. Johnson stood “as the stark
exception to general practice in that century, so demagogic in his
appeals to the people” that he resembled “a parody of
popular leadership.” The charge, approved by the House but not
voted on in the Senate, was controversial at the time, but besides
skepticism about whether it reached the level of a high
misdemeanor, “the only other argument offered by congressmen
in Johnson’s defense was that he was not drunk when giving the
speeches.”

It’s impressive that Trump—a teetotaler—manages to
pull off his “peculiar indecencies” while stone cold
sober. Since his election, Trump has used Twitter to rail against
restaurant reviews, Saturday Night Live skits,
“so-called judges,” and America’s nuclear-armed rivals.
The month before his inauguration, apropos of nothing, Trump
announced via the social network that the U.S. “must greatly
strengthen and expand its nuclear capability,” following up
the next day on Morning Joe with “we will
outmatch them at every pass and outlast them all.”

As Charles Fried, Reagan’s solicitor general, observed,
“there are no lines for him…no notion of, this is
inappropriate, this is indecent, this is unpresidential.” If
the standard is “unacceptable risk of injury to the
republic,” such behavior just may be impeachable. An
impeachment on those grounds wouldn’t just remove a bad president
from office; it would set a precedent that might keep future
leaders in line.

Gene Healy is a
vice president at the Cato
Institute
, author of The Cult of the Presidency: America’s Dangerous
Devotion to Executive Power
(Cato 2008), and a columnist at the
Washington Examiner.