Navigating The Use Of Impeachment

Far from a public lynching, To End A Presidency — The Power of Impeachment is a scholarly work that provides historical context in addressing each of the elements of impeachment. It deals with the competing considerations, and how they should properly operate in the event that the process arises with Donald J. Trump or a future president. The book is a comprehensive, restrained, and indispensable resource on the powers and limits of impeachment.

Harvard Law professor Tribe and his former student, Matz, present twin goals at the outset: How to end a presidency through impeachment and how, as a nation, we can fight for the “Constitution and the democracy it protects.”  The fundamental question is whether these principles are in sync or on a collision course.  The book deliberately and carefully reaches the judgment that they can be in sync where there is evident “authoritarian drift” and an “existential threat” to the values upon which this country was founded.  The most important role of impeachment is to address “the threat of democratic decline.”  With U.S. presidential powers at their apex today, amid “polarization, partisanship, and tribalism…weaken[ing] external checks on the executive branch, Americans have come to rely increasingly on the president’s good faith and self-restraint.”  This is a “precarious position for any democracy,” the authors write, let alone in the climate we presently face.  Indeed, when truth and facts no longer serve as a limit on power, and with lying rampant on a daily basis, we are in the most dangerous of territories for our democratic state.

Three underlying questions are posed by the authors regarding the potential removal of a president: is it permissible, is it likely to succeed and is it worth the price the nation will pay?

After considerable discussion, they conclude — and I agree — that removal is permissible if the evidence is established. It is too early to say if the process will succeed, and, yes, the nation should endure the process if “Trump poses an existential threat to our Constitution and the free society it establishes.”  It is a moral imperative to pursue the Justice Department and congressional investigations wherever they logically lead without interference.  No person is above the law, a concept dating back well before the founding of our nation.

Reduced to its essence, impeachment is “an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents,” the authors maintain. They note that given the new “normalization” of impeachment in recent years, the country may not act when the need for action may be the greatest.  Rising partisanship has created “a massive ‘boy-who-cried-wolf’ dilemma,” where [a] nation over-saturated with impeachment talk may find it especially difficult to remove a president from office when it’s really, truly necessary.”

Compounding matters, the authors rightfully caution that there may only be one bite at this removal apple with the 45^th President.  The constant banter of impeachment talk, in advance of the issuance of proper findings and with a Congress lacking the votes and spine to act, may imperil the ability to invoke this needed ultimate sanction.

The Founding Fathers ultimately decided the power should rest with Congress, as opposed to the courts, with a very high bar of a two-thirds vote of the Senate at trial, if articles of impeachment issue from the House of Representatives.  Clearly, they wanted to address true excesses in government, but not permit its use in purely partisan squabbles.  The Founders also avoided clarity on what constituted “high crimes and misdemeanors,” especially misdemeanors.  Because of their own uncertainty, later Congresses have had to provide the requisite texture.  Still, the authors believe there are defined guideposts and that impeachment is not as malleable as President Gerald Ford’s standard that an offense is “whatever a majority of the House of Representatives considers [it] to be at a given moment in history.”

While holding their powder to await the final report of Special Counsel Robert Mueller and other investigations, Tribe and Matz go through a litany of potential issues which could warrant impeachable offenses if properly established and proven: obstruction of justice, including interfering with the Michael Flynn investigation and the firing of James Comey; potential misuse of the pardon power, certainly if invoked to protect oneself or one’s own family; violations of the domestic and foreign Emoluments Clauses; possible money laundering charges; and other substantial abuses of power.  Further, Tribe and Matz also cite, below the impeachment radar, outrageous actions taken by President Trump in the past year which cross clear boundaries of acceptable conduct and contravene established “norms,” including “calls to imprison political opponents and critics; tacit support for armed extremists and private militias; assaults on the independent judiciary; and apparent comfort with hostile powers meddling in elections to his advantage.”

The history of impeachment is meticulously chronicled.  No president has been successfully impeached to date, with President Andrew Johnson losing by one vote at trial and President Richard Nixon resigning.  The authors focus on the failed impeachment trial of President Clinton and expound on the rampant talk “degrad[ing]” the subject of impeachment with each President thereafter (and both candidates in the 2016 presidential election).

The pardon powers and the application of the 25^th Amendment are subjects of scrutiny as well.   Tribe and Matz have a fascinating analysis of how the pardon of Arizona Sheriff Joe Arpaio may “qualify as an impeachable offense,” in part because it constituted “a frontal assault on the judiciary’s ability to enforce the Constitution.”  Significant attention is also paid the very high burden imposed by the 25^th Amendment for removal of a president due to physical or mental inability.

Combating the forces of tribalism and disunion which are tearing our country apart, while beyond the scope of this book, is touched on in passing, including the substantial role played by social media.  Alas, reuniting the country and opening communication lines after the fractious 2016 election amid ongoing echo chambers remain formidable concerns.

In the end, To End A Presidency is an eminently comprehensible, thorough legal, historical, and political text, a must-read guide for navigating the choppy and turbulent waters facing President Trump and the country in the days ahead.

Richard Salomon is chair of the advisory board of the Shadow Cabinet (@ShadowingTrump) and co-chair of the rule of law committee of WE The Constitution (www.wetheconstitution.org).