No Paper Tigers

No Paper Tiger

A new book examines the real and threatened power of impeachment

Credit: Anthony Russo The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE II, SECTION 4 OF THE CONSTITUTION

Released in May, “To End a Presidency: The Power of Impeachment” (Basic Books) guides readers through the perilous process for removing an American president from office. Laurence Tribe ’66, Carl M. Loeb University Professor and professor of constitutional law at Harvard, and Joshua Matz ’12, constitutional lawyer and publisher of the Take Care law blog, provide historically rich, vividly reasoned, and unflinching analysis of this profound constitutional check—from its shifting form during the Framers’ debates, to its many and varied applications since 1788, to the “permanent impeachment campaign” of today. The Bulletin asked Tribe and Matz for their insights on the origins and purpose of the often-misunderstood impeachment clauses and their potential role in our era of “broken politics.”


Q: Ending a presidency is a massive undertaking, yet the Framers kept their guidance on impeachment minimal and very limited on process. Why do you think they did that? Has this had good or bad effects overall?


Tribe talking at a microphone

Credit: Jay Mallin “It would be a mistake to dismiss the impeachment power as a paper tiger,” says Laurence Tribe. “Its roar throughout history has been loud indeed.”

Tribe: As with most of our mercifully brief Constitution, the Framers were wise enough to know how little they could predict about how the republic would fare in a hostile world and under changing circumstances. Thus they famously decided to provide only a rough outline rather than a detailed blueprint. Planning for the selection of a president, the Framers were of many minds about whether to include an impeachment power and, if so, how to structure it. Could impeachment be made potent enough to remove a despot but not so potent as to undermine an energetic chief executive or make him subservient to Congress? In our book, we extract lessons from founding debates about whether to allow impeachment, who should exercise this power, and what limits should apply on impeachable conduct. We also explore how impeachment has been deployed over the centuries and all the judgment calls Americans have made along the way. In so doing, we bring to life the many ways in which the Framers delegated key judgments to the future.


Tyranny was fresh in the Framers’ minds when they wrote the Constitution. Did that influence how they devised the impeachment power?


Tribe: Not only did tyranny influence how they devised the impeachment power, but the risk of presidential despotism ultimately silenced many of the Framers who began with the view that no such power should be included at all. Without an impeachment process, those Framers came to see, we would render ourselves defenseless against the kinds of tyranny our Founders came to these shores and shed their blood to escape.


No president has ever been removed from office through impeachment. Does that mean this “power” is not in fact all that powerful?


Tribe: This fact shows only how difficult the process is to use when a president is determined to cling to power to the bitter end. Richard Nixon, as you know, resigned to avoid what looked like certain impeachment by the House and all-but-certain conviction by the Senate. And the fear of being humbled and humiliated—even through an unsuccessful impeachment campaign—has undoubtedly prevented many presidential misadventures that would otherwise have harmed the nation. Like a sword of Damocles, the impeachment power works its magic of deterring misdeeds not just when it falls but also while it hangs overhead. So it would be quite a mistake to dismiss the impeachment power as a paper tiger. Its roar throughout history has been loud indeed.


According to your book, compared with during the first 200 years of the United States, today, impeachment is a much more disruptive force in politics. What is the “permanent impeachment campaign” you mention, and what gave rise to it?


No Paper Tigers 2

Credit: Hillel Smith “The impeachment power cannot be exercised responsibly,” warns Joshua Matz, “if most Americans view it as a weapon of partisan warfare.”

Matz: For the vast majority of our nation’s history, impeachment played a marginal role in the rhetoric and practice of national politics. With only a few notable exceptions—including the Tyler, Johnson and Nixon presidencies—impeachment simply wasn’t a significant part of the story. That began changing in the 1980s and 1990s: Ronald Reagan and George H. W. Bush each faced multiple impeachment resolutions. Yet it was the GOP crusade against Bill Clinton that marked a profound transformation. Born of partisan spite and rejected on partisan lines, the Clinton impeachment accelerated many of the most destructive trends in our political system. At the same time, it degraded the impeachment power. A whole generation came to view impeachment threats as ordinary aspects of our partisan civil war, in which nothing is sacred and everything can be weaponized. Under George W. Bush and Barack Obama, calls for impeachment became standard fare in national politics. By 2016, journalists, political operatives, and elected officials had spent nearly two decades mastering the strategy and rhetoric of impeachment talk. In that same period, Americans had come to expect it. Calls for impeachment, and denunciations of those calls, were now a customary part of political dialogue. It was only a small extension of that habit to debate articles of impeachment against Donald J. Trump and Hillary Clinton before either of them had been elected (let alone sworn into office).


Everyone has strong feelings about the 45th president. How did you handle yours, in writing this book intended for all Americans, some of whom see welcome shake-ups where others see dire chaos?

We wanted to write a book that would be be respectful of all ideological positions—except, I suppose, the nihilistic position that the American experiment has failed and should be brought to an end.

Laurence Tribe

Tribe: We decided to bring our views into the open, not that an effort to hide them could have succeeded anyway. But because both of us care more about preserving the democracy we embrace than we do about removing the leader we oppose, regardless of the consequences, there was no tension between our policy preferences and our principles. In particular, we don’t agree with those who believe that all or even most of Trump’s supporters are “deplorable” people who aren’t worth taking seriously and listening to. So we wanted to write a book that would be respectful of all ideological positions—except, I suppose, the nihilistic position that the American experiment has failed and should be brought to an end.


What are some of the biggest misconceptions about impeachment you have encountered?


Tribe: Where to begin? For one thing, huge numbers of people have the misconception that impeaching a president automatically removes him from office, whereas in fact it triggers only a trial in the Senate. Some think that removing a president for stealing an election in collusion with a hostile foreign power would turn back the clock and either reverse the results of the election or empower a court to do so—fantasies that we’ve tried to discourage. Another misconception is that the main thing to figure out about impeachment is what constitute “high Crimes and Misdemeanors,” whereas that’s arguably the easiest step in the process. A fixation on that single question has distracted attention from the much harder (and much more important) question of when an impeachment should proceed when there is a decent case that “high Crimes and Misdemeanors” may have occurred. That the House has a mandatory, constitutional duty to impeach whenever a potentially impeachable offense has been committed is a related misconception. We could go on, but the point is that there are far more—and far more dangerous—misconceptions than there are correct understandings about the impeachment power. We hope our book will help change that.


You write that the widespread belief that only criminal offenses are impeachable is false, yet it “staggers on like a vengeful zombie.” What’s the danger here?


Tribe: The main danger is that a president who imperils democracy, commits dereliction of duty, or violates his oath of office through noncriminal means would be deemed beyond removal through the only available mechanism. The formal powers of the presidency are vast; exercised the wrong way, they could break this nation without breaking any criminal statutes. Another danger is that debates over how to save democracy from a tyrant will be replaced by debates over ultimately irrelevant legal technicalities concerning provisions of the United States Code written for entirely different purposes. A final danger is that the criminalization of politics is likely to be encouraged by couching national debates over the abuse of power in terms of federal criminal law.


How does public opinion shape the impeachment process—what impact does today’s proliferation of polls, approval ratings, 24/7 social media, fake news and flexible notions of “truth” have on current debate?


Matz: Popular presidents are less likely to be investigated, less likely to be charged with misconduct and less likely to be removed from office. As unnerving as this may sound, popular presidents almost certainly enjoy a bit more leeway to commit “high Crimes and Misdemeanors.” We certainly hope that evidence of misconduct would undermine a president’s approval ratings, but history suggests that the story isn’t always so simple. This speaks to a fundamental truth of impeachment: It is a constitutional power inextricably intertwined with the political process. If the American people cannot recognize and rally against a tyrant, the game is already lost. And in this age of echo chambers, fake news and tribal truth, it’s an open question whether a broad cross section of the public could successfully pull together in the face of a threat to democracy.


Impeachment is a “democratic process” by which Americans “speaking through Congress decide,” your book states. Polls indicate that currently Americans have less confidence in Congress than in any other U.S. institution. What impact could this have on potential impeachment proceedings?


Tribe: That’s an excellent question. Our broken politics makes impeachment, which has always been difficult, especially difficult today. The paradox is that very same broken politics makes it more likely that we’ll elect a president who ought in principle to be removed through impeachment. So we’ve ended up with a tragic situation in which impeachment might be least usable and most destabilizing precisely when we need it most. The resolution to that paradox isn’t to be found within the machinery of government itself but in the conditions of our tribal and increasingly vicious culture. We need to reinvigorate our democracy and start talking to one another, more than at one another, if we’re to make it through these trying times. The children marching in over 800 cities and towns as we offer these answers in March 2018—the inspiring teenagers who have organized #MarchForOurLives—are as relevant to escaping our predicament as is any new law or official action that a Congress with more spine might take on its own.


You call impeachment a “noble wager,” a life-or-death-of-our-democracy bet on the capacity of the American people and their representatives to topple a rogue president. How can Americans help ensure that the impeachment power will still work if and when we need it?


Matz: There’s no silver bullet. But the impeachment power cannot be exercised responsibly—or at all—if most Americans view it as a weapon of partisan warfare. Impeachment does not exist to slay or embarrass political foes; it exists to save the very foundation on which the rest of our democratic politics unfolds. Taking a more measured and thoughtful approach to impeachment is one of the first steps toward ensuring that it’s available if and when we need it. Ideally, that step would also facilitate a broader reflection on the state of our democratic politics—and a commitment to breaking past the forces of disunion and dysfunction that threaten to tear us apart. The Constitution gambles that the American people will rise to the occasion in times of crisis.