Impeachment: A Citizen's Guide

by Cass R. Sunstein

But the abstract concerns that motivated them—treason, bribery, corruption, egregious abuse of public trust or misuse of presidential authority—are no different from those that concern us. They are exactly the same.

Never a radical, Justice Scalia once proclaimed that he was a “faint-hearted” originalist, which meant that he had a lot of respect for precedent, and if the Court had developed stable principles, he would usually be prepared to go along. Faint-hearted originalism is wise, and it’s courageous too.

They threaded a needle. They accomplished a miracle. There’s no reason to depart from their understanding of their framework. We can’t do better than they did, and if we tried, we would probably do worse.

As always, Hamilton was prescient, noting in Federalist No. 65 that in many cases, the trial of impeachments in the Senate “will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”6 Right.

It is true that under the framework that we are using, there is another view: It is not impeachable to use official power to cover up an action that is not itself impeachable. Suppose that the president committed some clearly nonimpeachable offense—say, tax evasion, speeding, occasional use of recreational drugs. Suppose that he used the apparatus of the federal government to reduce the likelihood that anyone would find out about it. By analogy to the failure to respond to a subpoena, it could be urged that there has been no high crime or misdemeanor. But the analogy probably fails.

In the two actual impeachments of American presidents, no impeachable offense was committed. In a sense, the founding document worked: the Senate refused to convict. Still, the nation was badly served.

because it’s not an egregious abuse of presidential authority.

Saying so doesn’t make it so. Johnson had a good-faith argument that he was acting in accordance with his constitutional authority.

the constitutional standard for impeachment and conviction of federal judges is exactly the same as the standard for the president.

Hamilton, Madison, and their colleagues made one truly original contribution to political thought, which was to reject the long-standing view, shared by some of history’s greatest thinkers (including Montesquieu himself), that republics should be small and homogenous. They suggested instead that a large republic, with diverse people, would be the best way to produce a deliberative democracy. In their conception of democracy, as Justice Louis Brandeis put it, “the deliberative forces should prevail over the arbitrary”—and deliberation would entail circumspection, not intuition. Theirs was a republic of reasons. They didn’t think that law and policy should result from people’s immediate reactions to a long series of hypothetical questions.

Where the constitutional issue is reasonably debated, and where no resolution is clearly correct, We the People, acting through our elected representatives, get to decide.

In the cases of Nixon and Clinton, the public debated whether the president engaged in obstruction of justice, under the apparent assumption that the answer to that question simultaneously answers the question of impeachment. That is a major mistake. Obstruction of justice need not be a high crime or misdemeanor. If the president obstructs an investigation into his own illegal investments before becoming president, there is probably no impeachable offense.

If, on the other hand, the president engages in actions that fall short of obstruction of justice, we might nonetheless have a misdemeanor within the meaning of the Constitution, depending on the substance of the investigation. If the FBI is investigating an act of presidential treason or bribery, themselves impeachable, then serious interference with the investigation could count as a misdemeanor. That conclusion holds whether or not the interference meets the technical standards for obstruction of justice.

A president hires a gunman to murder someone simply because he does not like him. There is no political motivation; the dispute is entirely personal.

The French thinker Francois de La Rochefoucauld proclaimed: “Hypocrisy is the tribute vice pays to virtue.”7 If the Rule of Law sometimes produces hypocrisy, at least we know what counts as vice and what counts as virtue.

Something to keep in mind at present.

The Supreme Court has not answered that question, so the technical answer is: unclear. My own answer is different: no. Admittedly, it’s a tough one, a kind of constitutional brainteaser.

there is another reason, building on Nixon v. Fitzgerald, to say that the president cannot be criminally prosecuted while in office. Unlike a civil action, a criminal prosecution imposes a unique kind of stigma and threat, such that the president’s ability to undertake his constitutionally specified tasks really would be at risk. Under Nixon v. Fitzgerald, there is an argument that this conclusion is right if a president is being prosecuted on the basis of official acts: if a president cannot be subject to a civil lawsuit for such acts, it might follow that he cannot be criminally prosecuted for them.

Can the president be indicted while in office? I don’t think so.

Can the president pardon himself? Probably not. What the heck, let’s go for broke: no.

Social scientists speak of “group polarization,” which means that when like-minded people get together, they often go to extremes. Social scientists also speak of “informational cascades,” which occur when information, even if false, quickly spreads from one person to another, with the result that numerous people end up believing something, not because they have independent reason to think that it is true, but because other people seem to believe it. Because of “confirmation bias,” people are inclined to believe things that fit with what they already believe or want to believe. That means that people can get pretty charged up even if the facts, which would calm them down, are freely available.

Supreme Court Justice Louis Brandeis, attempting to vindicate the freedom of speech, warned that “the greatest menace to freedom is an inert people.”

And it still is true.

To qualify as “good faith” as I am understanding the term, an argument must be offered with a subjective belief that it is correct, and it must also be objectively reasonable. Johnson’s argument meets both of those requirements. In light of the constitutional backdrop, a good-faith argument, as I am understanding it, should be enough to absolve a president of the charge of having committed a high crime or misdemeanor. It is not a “misdemeanor” to act on the basis of a sincere and reasonable belief that one is entitled to do so. Note that if a president sincerely believes that an argument is right, but if the argument is silly or wholly implausible, the test is not met: A president’s sincere but ridiculous belief that he has the authority to engage in some lawless action should not insulate him from a finding that he has committed a misdemeanor.