Impeachment: A Citizen's Guide

by Cass R. Sunstein

Those who believe in a living Constitution claim that the document contains abstract and open-ended terms whose meaning legitimately evolves in ways that the founding generation could not have imagined. Sometimes they enlist one of the greatest thinkers of that very generation, Thomas Jefferson, to support their argument: Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. . . . [T]he dead have no rights.4

The very broad protection now given to political dissent almost certainly goes beyond the understandings of the founding period.

As some constitutional theorists put it, the text sets out a broad “concept,” not a particular “conception.” The concept does not change, but the conception does.

Whether we are bound by the original understanding depends on whether we conclude, on principle, that we should be bound by the original understanding.

Still other people, most prominently Professor Ronald Dworkin, argue for a “moral reading” of the U.S. Constitution. What this means is that we must follow the Constitution’s words, but in a way that makes best moral sense of them.

If, for example, the equal protection clause is interpreted to forbid racial segregation, it is a lot more appealing, from the moral point of view, than it would otherwise be. If the cruel and unusual punishment clause is taken to forbid torture, it is a better safeguard of human rights.

The problem is that we cannot discern, from history, anything like a clear understanding of the idea of high crimes and misdemeanors.

One of the best ways to keep faith with the founding document is to avoid resorting to the impeachment mechanism without sufficient cause. Use of the mechanism can transform political disagreement into charges of criminality or egregious wrongdoing. (“Lock him up!”) It can be a way of stirring up the ugliest forces of anger and destruction. It can be a product of, and fuel, scandal-mongering and fake news. It can jeopardize the separation of powers. It can be profoundly destabilizing. It focuses the nation’s attention on whether to remove its leader—rather than how to promote economic growth, reduce premature deaths, increase national security, or cut poverty. It can increase partisan rage, with the suggestion that the principal figure in one of the nation’s political parties, and the winner of a national election, is not merely a bad president but guilty of terribleness and horrors. It leads political opponents to focus obsessively on how to prove that terribleness and those horrors, whether or not they exist.

intense political opposition, and even a general sense that the president is a failure, is not sufficient cause for impeachment.

Second. I charge him with a wicked and corrupt abuse of the power of appointment to, and removal from, office; first, in displacing those who were competent and faithful in the discharge of their public duties, only because they were supposed to entertain a political preference for another; and, secondly, in bestowing them on creatures of his own will, alike regardless of the public welfare and his duty to the country.

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.

the two successful presidential impeachments were unconstitutional, even farcical—case studies in what the United States should avoid. But the third impeachment proceeding, halted with Nixon’s resignation, was a profile in constitutional courage, even if “the comparative strength of parties” played a massive role.

President Richard Nixon was smart and shrewd. He mastered the details. He saw the big picture. He did great things, which continue to define our nation. He was a Republican and a conservative, but he was tough to pigeonhole. He created the Environmental Protection Agency, claiming that clean air and clear water are “a birthright for every American.”7 He created the Occupational Safety and Health Administration. He promoted self-determination for Native-Americans. He signed the great civil rights law that prohibited sex discrimination in higher education. He reoriented the Supreme Court. He calmed tensions between the United States and the Soviet Union. He went to China. If you are listing the five most consequential presidents in American history, you could make a good argument that Nixon belongs on the list. His enemies called him “Tricky Dick.” He lacked charm and charisma. On camera, he would sweat at inopportune moments. In private, he could be brutal. Washington, he said, “is full of Jews.” In his view, that was a problem, because “most Jews are disloyal.” One of his campaigns was based on three words: “law and order.” But he didn’t seem to care so much about obeying the law. He lied to the American people. He kept an enemies list.

tax evasion isn’t an impeachable offense. It’s not an abuse of official authority.

The House and Senate are fiercely protective of their own prerogatives, not least when they are seeking materials from the executive branch. They take their investigations seriously (even if their principal or sole motivation is political). They do not like to be thwarted. For its part, the executive branch is deeply suspicious of investigations, thinking that they are efforts to make political hay. Its officials do not love to hand over documents. They are fiercely protective of their own deliberative processes, and that is true whether the president is Republican or Democratic.

Nixon refused to comply with the Committee’s subpoenas. By a narrow vote of 21 to 17, the Judiciary Committee found, in that very refusal, a basis for impeachment.

But by itself, disobedience of a subpoena is not necessarily an impeachable offense. Everything depends on what the subpoena is for.

if the underlying conduct is not impeachable, it is not impeachable for the president to resist an investigation of that conduct.

If the president refuses to cooperate with a lawful investigation into whether he has done something impeachable, he is abusing his power. But it’s not the easiest question, so I will leave it at a firm “probably.”

If a president uses the apparatus of government in an unlawful way, to compromise democratic processes and to invade constitutional rights, we come to the heart of what the impeachment provision is all about.

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.

We aren’t speaking here of systematic violation of civil liberty, or acquisition of the office by unlawful means, or the grave misuses of official authority that triggered impeachment proceedings in the American colonies.

impeachment of the president is uniquely destabilizing.

Should policy and law be based on intuitions and immediate reactions? The entire constitutional order can be seen as an emphatic answer: “NO!”

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.

the central question is whether we have an egregious abuse of official power.

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.

A president is elected as a result of a secret plan with a nation that is unfriendly to the United States. As part of that plan, the president has worked closely, and personally, with leaders of that nation to disseminate false information about his political opponent. There is no quid pro quo, but the president’s election has unquestionably been facilitated by an explicit plan. The president can be impeached.

the debates at the Convention suggest that if the president procures office by objectionable means, impeachment is available. Indeed, the debates suggest that cases of this kind are defining examples of what impeachment is for. Recall George Mason’s words: “Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”

It is not an impeachable offense to reach a series of legal conclusions that both courts and international law reject.

so long as he has a good-faith argument, impeachment is off the table.

If a president does not care about the truth, and repeatedly lies in ways material to the fulfillment of the duties of his office, he is abusing his authority.

Two of our nation’s greatest presidents—I would rank them at the very top—engaged in serious violations of civil rights and civil liberties in the midst of war: Abraham Lincoln and Franklin Delano Roosevelt. Lincoln suspended the writ of habeas corpus. Roosevelt ordered the internment of 117,000 people of Japanese descent living on the West Coast, two-thirds of whom were native-born citizens of the United States.

Relevant questions: Under the law, does the president have a good-faith argument, or not? How egregious, exactly, are the violations? How many are there? If the president is systematically ignoring constitutional restrictions on government’s power, impeachment is a legitimate response.

a cover-up of activity that does not amount to a high crime or misdemeanor may not itself amount to a high crime or misdemeanor.

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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.

The Constitution would not make a lot of sense if it did not permit the nation to remove murderers from the highest office in the land. We should interpret the Constitution to make sense.

The central question of the Twenty-Fifth Amendment, of course, is the meaning of one word: “unable.”

Terrible judgment, laziness, incompetence, and even impeachable acts do not justify invocation of the Twenty-Fifth Amendment.

The real risk is not that the Twenty-Fifth Amendment will be invoked when it shouldn’t, but that it won’t be invoked when it should.

On some occasions, the potential futility of impeachment has probably deterred the House from proceeding even when many of its members were pretty unhappy with the president.

underline the word “impartial,” which suggests that the senators are supposed to act like judges, not politicians.

the Clinton and Johnson impeachments violated the constitutional standard,

the rise of political parties followed ratification of the Constitution; the framers did not anticipate it.)

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.

The second thing to worry about is the failure to use the impeachment mechanism in circumstances in which it really is justified.

It took a Civil War to abolish slavery. Until 1920, women could be forbidden from voting. Until 1954, the Constitution allowed states to segregate people by race. Freedom of speech did not flower until the 1960s.

The power of impeachment provides a unique window onto the American republic. It helps to define American exceptionalism. In the eighteenth century or the twenty-first, no large nation can flourish without some kind of executive authority. For Hamilton’s reasons, that authority needs to be powerful. At the same time, the executive is, by far, the most dangerous of the three branches, because it can do so much, for better or for ill, in such a short time.

“the greatest menace to freedom is an inert people.”