SIX

LESSONS

We noted in the introduction Santayana’s famous remark that those who cannot remember the past are condemned to repeat it. But, of course, remembrance alone is not enough. We must also learn from experience. History offers many lessons when it comes to removing the president, including the following.

Lesson 1

IMPEACHMENT IS A LAST RESORT

Impeachment can be habit-forming. Especially since the Clinton administration, there has been a growing tendency to call for impeachment upon the first significant dissatisfaction with a president. But the trend began even before Clinton. A lamentable side effect of Watergate was that people began to see impeachment as a strategic weapon to be wielded against a president one dislikes rather than an option of last resort to be used against a president who demonstrates unfitness.

Calls for the impeachment of Nixon’s successor, Gerald Ford, began almost immediately, with his decision to pardon Nixon just one month into his presidency. Twelve years later, seven Democratic congressmen introduced a resolution to impeach Ronald Reagan over the Iran-Contra affair.

The Clinton ordeal quickened the reflex to reach for impeachment. Throughout the second term of his successor, George W. Bush, Democrats in the House introduced resolutions supporting impeachment stemming from the Iraq War and assorted other misdeeds. Some of these efforts acquired traction, especially a resolution in June 2008 proposing 35 articles of impeachment.

The charges covered not only the war, but also an effort to overthrow Iran’s government; the mistreatment of detainees in the Terror Wars; the inadequate response to Hurricane Katrina and global warming; the outing of CIA agent Valerie Plame; alleged tampering in the 2004 election; and efforts to destroy Medicare, among other things. By a vote of 251 to 166, the House referred the resolution to the Judiciary Committee, though the expiration of Bush’s term soon rendered action moot.

The calls for impeachment came even faster and more furiously during the Obama presidency. Back in 2010, political commentator Jonathan Chait predicted that, by the end of Obama’s time in office, the House would vote to impeach him. Though the prediction proved inaccurate, the reasoning was sound and scary. “What will they impeach him over?” Chait asked. “You can always find something. Mini-scandals break out regularly in Washington.”¹

Indeed, although formal articles of impeachment against Obama were never introduced, by the end of his second term members of Congress and others had called for his impeachment on numerous grounds: the false claim that he was born outside of the United States; the killing of four U.S. embassy personnel in Benghazi; his executive orders on immigration; the IRS allegedly targeting conservative groups; an executive order allowing transgendered students to use boys or girls bathrooms; and much more. It wasn’t just partisan Republicans. In 2014, noted civil libertarian Nat Hentoff floated the idea of impeaching Obama over his use of executive orders pertaining to domestic spying.

As the litany of charges against both Bush and Obama should make clear, many of the calls for impeachment reflected political disagreements and/or claims of incompetence rather than high crimes and misdemeanors as traditionally understood. People now invoke the “I” word whenever a president does something they strongly dislike.

This trend accelerated with the election of Donald Trump. Books by respectable journalists urged the impeachment of both Bush and Obama, but not until their second terms. The first book to advocate Trump’s impeachment came out in April 2017, less than three months after he took office. The first call for Trump’s impeachment on the floor of Congress came just four months into his administration.

This is regrettable. Impeachment should be a last, not first resort. To be sure, the temptation to see impeachment as a convenient means of getting rid of the other guy dates back to the early days of the Republic. When the Democrat-Republicans impeached Supreme Court Justice Samuel Chase in 1804, Senator William Giles candidly explained the purpose: “We want your office in order to give it to a better man.”²

But we already have a vehicle for putting better people in office: elections. If we don’t like federal judges, the solution is to elect better presidents and senators to do the appointing and confirming. If we don’t like the president, defeat him after four years or wait out the expiration of his second term. The foremost virtue of democracy lies in the resort to ballots rather than bullets to determine our representatives. True, impeachment itself involves ballots rather than bullets, but that is small comfort to the citizen who sees 50 million ballots nationwide trumped by 220 in the House of Representatives and 67 in the Senate. When people get the idea that their votes don’t matter, it may not be long before they ponder less peaceful alternatives.

Violence aside, we don’t want people to feel that their voices and votes are ignored. A demoralized, alienated citizenry cannot be healthy. Of course, some disappointment in the democratic process is inevitable, both because elected officials aren’t angels and because power corrupts. These truths prompted the framers to craft safeguards, including impeachment. But quick resort to impeachment is a remedy worse than the problem. It will leave people feeling not just disillusioned but disenfranchised. The United States already suffers from uncommonly low voter turnout, which is in part a function of people believing that their vote makes no difference.

The great constitutional theorist Charles Black, who assisted Thurgood Marshall in drafting the brief to the Supreme Court that prevailed in the landmark case Brown v. Board of Education, was militant about racial issues and despised the “Southern strategy” that helped elect Richard Nixon. He strongly disapproved of Nixon. But when Black authored Impeachment: A Handbook in early 1974, as Nixon’s crimes were becoming apparent, he was unwilling to advocate impeachment. To the contrary, Black insisted that, before impeachment be undertaken, “it is essential that absolute bedrock legitimacy be inarguably present.”³ His assessment recalls the maxim: “When it is not necessary to change, it is necessary not to change.” However one regards this sentiment in general, the preference for a default condition of inaction makes great sense when it comes to the drastic remedy of impeachment. When it is not necessary to impeach, it is necessary not to impeach.

If impeachment is a last resort, what circumstances suggest that the last resort has arrived? The answer to that question involves several considerations discussed below, but one in particular should always be considered: Will the president again face the voters? Impeachment will generally be more appropriate during the president’s second term than first for the simple reason that the voters themselves can effectively impeach the first-term president. The People, after all, are sovereign in U.S. democracy and capable of making the judgment that the president has rendered himself unfit. And, yes, they can interpret the Constitution. They, no less than members of Congress, can determine the meaning of “high crimes and misdemeanors.”

There are, however, two crucial exceptions to the preference for letting the voters decide the fitness of a president. First, a president’s misconduct may involve stacking the deck in his own favor with respect to his reelection. That could occur in many situations beyond the obvious cases of voter fraud or suppression. The “dirty tricks” the Nixon campaign engaged in against his prospective or actual opponents would mark an exception to “let the voters decide,” since precisely what the campaign was doing was improperly interfering with that decision process. Ditto if the president knowingly violates the First Amendment, since fair elections require free speech and a free press.

Second, if the president’s alleged high crimes and misdemeanors suggest that he poses a major threat—for example, that he might recklessly commence a nuclear attack. There may be cases where the urgency of the threat posed by an unfit president mitigates against waiting for election results. Where the threat is imminent, however, the 25th Amendment provides the faster remedy.

Lesson 2

IMPEACHMENT REQUIRES HIGH CRIMES AND MISDEMEANORS

The House should impeach, and the Senate convict, only when they can point to a specific action or pattern of actions that meets the constitutional standard. Put more crudely, the president may not be impeached for doing a lousy job.

We could imagine a system that did in fact permit removal of our chief executive simply for inadequate performance. Such a system exists in some countries—elections can be called at any time and/or a legislative vote of “no confidence” can remove an unpopular leader. But that is not and never has been the U.S. form of government. The founders emphatically rejected such a system. As noted in chapter one, James Madison objected to presidents serving “at the pleasure of the Senate.” His fellow Virginian, George Mason, explained that allowing the president to be “the mere creature of the legislature” would be a “violation of the fundamental principle of good government.”⁴ Certainly it would be a violation of U.S.-style democracy.

We needn’t blindly follow the framers, but there are obvious advantages to the approach they gave us, with presidents serving four-year terms absent disqualifying acts that meet a high constitutional hurdle. More frequent turnover would breed dangerous instability. While this is not the place to trumpet the advantages of American democracy over alternatives, for present purposes we must only observe that we do not have a system that allows for removing the chief executive any time and for any reason. If we wish to move in that direction, we should do so only after extensive debate and the passage of appropriate constitutional amendments.

There are several reasons why impeachment is the wrong vehicle for changing the American way and subjecting the president to recall whenever Congress so desires. First, Congress is supposed to impeach and convict only if the president commits treason, bribery, or other high crimes and misdemeanors. To use “high crimes and misdemeanors” as justification for removing any president one dislikes would make a mockery of language.

Second, Congress now has a body of precedents built up around actual impeachments. In the Johnson, Nixon, and Clinton cases, it was generally understood and acknowledged that the president could not be removed absent high crimes and misdemeanors (or treason or bribery). To abandon such precedents would render those cases useless as guidance for when a particular president should be accused and removed. It would leave us unmoored, with each Congress making it up as it goes.

Third, within our structure of government, impeaching and removing the president absent specific and serious wrongdoing wouldn’t make sense. When the government replaces a leader via a vote of “no confidence” in a parliamentary system, a new government gets formed, typically around a coalition led by a different party. Not so in the United States. The president will be replaced by the vice president, a member of his own party. Whatever benefit may have accrued if Al Gore replaced Bill Clinton, it would have made little sense as part of a movement to change the course of government.

But even if Gore would have taken the nation in the direction Republicans preferred, impeachment still would have been inappropriate. In the case of Andrew Johnson, conviction and removal would indeed have produced a change in direction, as Democrat Johnson would have been replaced by Radical Republican Ben Wade. It was no coincidence that the Radical Republicans selected Charles Sumner and John Bingham as managers in the Senate trial, or that Thaddeus Stevens emerged as a leading voice for conviction—these men were passionate abolitionists and, as discussed in chapter two, the effort to remove Johnson was really about Reconstruction. History has treated Sumner, Bingham, and Stevens well but has been unsympathetic to their effort to oust Johnson. The lesson is clear: Even the most profound moral and political objections to the president do not justify impeachment.

Sumner openly admitted that he saw impeachment as a vehicle for changing the nation’s approach to Reconstruction. His written report after the Johnson trial said: “It is very wrong to try this impeachment merely on the articles. It is impardonable to higgle over words and phrases” while the president’s actions produce “terrible, heart-rending consequences.” Sumner acknowledged that Johnson’s real crime had nothing to do with the firing of Edwin Stanton as Secretary of War. He wrote that Johnson’s “usurpation with its brutalities and indecencies” was apparent by the end of 1866—before the Tenure of Office Act was even passed. Lest there be doubt, Sumner clarified that “plainly he ought to have been impeached and expelled at that early day.”⁵ In that same vein, Benjamin Butler argued that any behavior “highly prejudicial to the public interest” is impeachable.⁶

In other words, crimes and misdemeanors be damned. But this also means the Constitution be damned and the U.S. form of democracy be damned. Whatever our misgivings at any moment, our form of democracy has on balance worked well. The Radical Republicans were right on the issue that divided them from Johnson but wrong to think that a president’s dereliction merits impeachment absent a specific impeachable offense.

At the ballot box, voters ask themselves whether the country would be better served by a new president and new direction. Members of Congress may also ask that question as part of the impeachment inquiry, but first they must ask whether the president has committed an impeachable offense. Unless they can honestly and in good faith conclude that he has, the inquiry should go no further.

There is only one exception to the rule that removal of the president requires treason, bribery, or high crimes and misdemeanors. As discussed in chapter five, if the president is incapacitated, he may be temporarily removed regardless of whether he has committed any impeachable offense.

Lesson 3

IMPEACHMENT REQUIRES UNFITNESS

Just as a president may not justly be impeached without having committed treason, bribery, or other high crimes and misdemeanors, he ought not be convicted and removed solely because he committed such an act. Rather, in addition to the judgment that he committed an impeachable offense, the Senate should make the additional judgment that he is unfit to remain in office.

As a practical matter, this means we should allow room for the president to remain in office when he has committed a single error and shows sincere contrition. Indeed, the very act of recognizing and taking responsibility for an improper action may call into question the idea that the president is unfit. In such a case, if the president is clearly up to the job in terms of knowledge and intellect, removing him would be questionable.

In general, impeachment should not be a game of gotcha where Congress can establish that the president committed an offense, unless the offense is exceptionally serious. If the offense is aberrational, and acknowledged by the president, and if there is no reason to think him unfit, the drastic step of impeachment should generally be avoided.

Lesson 4

IMPEACHMENT REQUIRES POPULAR SUPPORT FROM THE AMERICAN PEOPLE.

At a press conference shortly after he had resigned as attorney general rather than fire Archibald Cox—the beginning of the Saturday Night Massacre that led to Richard Nixon’s downfall—Eliot Richardson was asked about impeachment. He gave a curious answer: “That’s a question for the American people.”⁷

The questions of whether to impeach and convict the president are on their face constitutionally reserved for the House and Senate respectively—not the U.S. citizenry. But, as Richardson understood, members of Congress are rarely oblivious to public opinion, particularly in their state or district. They will not stop reading their mail during an impeachment process. You might as well ask them to stop breathing.

In that sense, to say that impeachment requires the support of the American people is just an unavoidable reality. Richard Nixon and Bill Clinton provide a pair of cases in point: Nixon found himself on the verge of impeachment when and only when his popularity tanked and polls showed overwhelming public support for his removal. Clinton survived his Senate trial because the country opposed his removal.

But the notion that Congress should not impeach a popular president (absent truly exceptional circumstances) is not a mere circular claim that Congress should not do what it would not do anyway. After all, Clinton was impeached despite the public’s opposition. This is less surprising than it may seem. Many Republican House members lived in districts that favored impeachment. So too, many senators lived in states that favored conviction. But, conditioned though they are to consider the views of their constituents, here is a case where members of Congress should look at the bigger picture. The fact that U.S. citizens overall opposed impeachment and removal counseled against pushing the process to the brink. Public opposition to removal saved Clinton, but we never should have reached that point. Impeaching the president against the public’s desire is generally a bad idea.

For that reason, citizens should freely voice their opinions about impeachment. Here, I disagree with Charles Black, the revered law professor whom I quoted approvingly earlier. In his book on impeachment, Black wrote that the citizens’ role in the impeachment process is “vigilant waiting.” Why should citizens be mere spectators at this crucial constitutional moment? Because, Black observed, impeachment “is confided by the Constitution to responsible tribunals.”⁸ But that could equally be said about passing laws. That too is delegated to Congress. Does it follow that citizens should not make their views on legislation known?

The Constitution sets forth a standard (“high crimes and misdemeanors”) that requires interpretation. Perhaps Black felt that constitutional interpretation is beyond a layperson’s capacity. But here we benefit from the teaching of one of Black’s students at Yale Law School, Akhil Amar, one of the nation’s preeminent constitutional law scholars. Amar has repeatedly explained that the framers expected ordinary citizens to interpret the Constitution. At the founding, juries were considered sufficiently well versed in law, including constitutional law, to decide cases based on their interpretations—for example, refusing to convict a defendant if they thought the law in question was unconstitutional.

The ideas of “jury review” and “jury nullification” have fallen into disuse. (We’ve come to expect judges to decide questions of law, and juries only questions of fact.) Regardless of how one feels about those issues, we ought not expect citizens to defer 100 percent to members of Congress when it comes to “high crimes and misdemeanors.” Unlike judges, members of Congress are not experts on the Constitution. And the citizenry, not they, are the ultimate sovereign in our democracy. We the People ordained and established the Constitution. We, not the government elites who serve and represent us, own the document and the democracy it set in motion and governs.

Of course, in the very drafting of the Constitution, the People delegated many tasks to government officials, including impeachment. And, for practical reasons, it could hardly be otherwise. The full citizenry cannot conduct an impeachment inquiry or trial. But to go to the opposite extreme, and say that citizens should not express opinions or that Congress should ignore such opinions, contradicts the spirit of our democracy and is itself impractical.

Lesson 5

IMPEACHMENT AND REMOVAL MUST BE BIPARTISAN

Impeachment will never be completely bipartisan, either in the Congress or with the people at large. Even Richard Nixon, at the bitter end, had the support of roughly 25 percent of the U.S. people and supposedly could have counted on 10 to 15 votes to acquit in the Senate. But Nixon would have been impeached and convicted, and the American public would have accepted the result, because so many Republicans supported it. Such bipartisanship is essential.

Once again, we have a “lesson” that may seem to be merely descriptive of reality. Congress will generally need bipartisan support to remove a president, since one party rarely controls two-thirds of the Senate. However, that isn’t necessarily the case. The Republicans did control two-thirds of the Senate in 1868, and would have removed Andrew Johnson but for some defections. But they shouldn’t have. If they had persuaded the Seven Tall Men to stay small and convict, it would have been a bad thing. I don’t mean simply that Johnson did nothing warranting impeachment, though that is true. Rather, the fact that there was no Democratic support was itself a powerful reason to avoid removing Johnson—for two reasons.

First, impeachment requires, if not certainty, at least a high level of confidence. When no one in the opposition party in Congress favors impeachment, the situation calls for humility. Republican senators during the Clinton impeachment should have asked themselves (and a few perhaps did): “If this situation really called for Clinton’s ouster, wouldn’t at least one Democrat favor it?”

Of course, the senator who asked himself that may have concluded that the Democrats were unanimously mistaken. But even that conclusion should, as a brute fact, give our hypothetical Republican senator pause. Assuming one party has the numbers to convict on a purely partisan basis, would that be good for the country when it practically guarantees that the opposing party would view the action as a de facto coup d’état? One that means they will likely try to impeach your president when they return to power?

Note that the problem of a partisan impeachment can arise even when there is no risk of a partisan conviction. While typically neither party will enjoy two-thirds advantage in the Senate, one party will always enjoy majority power in the House, and that party need not be the same as the one in the White House. Because impeachment, unlike conviction, requires only majority vote, the prospect of partisan impeachment will often be present. It should be resisted, for the same reason that a partisan conviction should be resisted—it is likely unwise on the merits and always divisive in practice. If the effort to remove the president is doomed to fail in the Senate, it will likely not be worth the bitterness and divisiveness it causes along the way.

Lesson 6

IMPEACHMENT MUST PASS THE SHOE TEST

Senators at an impeachment trial take an oath to do “impartial justice.” To which one might reply, “What other kind is there?” And yet, as we have discussed, it is unrealistic to expect politicians to provide the kind of impartial justice we expect from judges. Politicians face voters and rarely ignore the fact. Virtually all politicians in the United States belong to one of two political parties in a binary system where one party’s gain is the other’s loss. The fate of the member of Congress is often tethered to that of the president of his or her party, and varies inversely with the fate of an opposing president. On matters of impeachment, then, we cannot expect members of Congress to fully shed their partisanship any more than they can shed their skin.

This is true not just in theory but also in practice. The one major thread connecting the three presidential impeachment sagas is the large degree of partisanship, with substantial bipartisanship found only at the tail end of the Nixon impeachment process.

But while we must accept and even embrace the fact that politicians will engage in politics, it does not follow that members of Congress should behave as naked partisans in the impeachment process, that they are as free to indulge their party-driven preferences as they are when, say, voting on who will be the Speaker or on allocation of office space or, for that matter, on ordinary legislation.

How can we get members of Congress to treat the impeachment process with greater impartiality while recognizing that they will never approach pure impartiality? How can we reconcile the political reality of a necessarily somewhat partisan process with the recognition that too much is at stake for members simply to vote along party lines?

One answer is for members of Congress to apply the “shoe test.” Before deciding either for or against impeachment or conviction, each member of the House or Senate should ask herself a straightforward question: How would I view this case if the shoe were on the other foot—that is, if the president belonged to the opposite party? If they would not impeach or convict a president of their own party for the identical conduct, they should not do so to a president of the opposing party. Conversely, if they would impeach or convict an opposing president, they should be willing to do the same to their own.^*

It is a test many members have implicitly failed during the three presidential impeachment episodes. Imagine if the Radical Republicans who impeached and nearly convicted Andrew Johnson had asked themselves: “Would we remove a president of our party for discharging a secretary of war in possible violation of the Tenure of Office Act?” An affirmative answer would not pass the giggles test, never mind the shoe test. The same question posed to those who defended Richard Nixon would yield the same result. Few Republicans would have tolerated a Democratic president who abused power as blatantly as Nixon.

The Clinton impeachment presented an even clearer case of members of congress flunking the shoe test. It is hard to disagree with this assessment by Richard Posner: “One just knows that if the shoe were on the other foot—if everything were the same except that the President was a Republican—the Republicans would have denounced the investigation in the same terms that the Democrats used.”⁹ And probably vice versa as well. Many Democrats who pounded Ken Starr would have applauded if his target had been a Republican president. While Posner was talking only about the investigation, his point extends to the impeachment and trial as well. It seems safe to say that most of the Republicans who voted for impeachment and removal would not have done the same had a Republican president done what Clinton did, whereas many Democrats would have voted to impeach and remove the hypothetical Republican Clinton.

That is not to say that members of Congress were consciously hypocritical. People rationalize mightily. They may convince themselves that they would in fact vote X or Y if the shoe were on the other foot even in cases where they would not. The fact that the shoe test is difficult to apply does not make it any less important. At a minimum, the question ought to be asked, and answered as truthfully as possible.

Lesson 7

IMPEACHMENT MUST BE FOR THE GOOD OF THE NATION

Even if one can check all the boxes discussed above—if the president committed an impeachable offense, if he is unfit, there is nationwide support for his removal and bipartisan support in Congress, and impeachment and/or conviction will pass the shoe test for a given member of Congress—one may still resist if, because of unusual circumstances, removing the president would be bad for the country.

This may be a matter of timing. Just as the House postponed the Clinton impeachment proceedings for a day when the United States bombed Iraq, it might, under certain circumstances, postpone them indefinitely if the country were at war. (Of course, a president should not be rewarded with postponement if he or she deliberately starts a “wag the dog” war precisely to achieve that result.) So too, suppose Congress discovers the president’s impeachable offense with only days or weeks left in his term. It may be futile or counterproductive to set in motion the impeachment machinery at that late date. (That said, it may be that a late-date impeachment usefully enforces norms of behavior without the risk of undoing the effects of an election.)

There may be any number of other circumstances, too, in which Congress might exercise restraint, such as the nation being in the midst of a crisis and the vice president considered unqualified.

In criminal law, the jury has the power to “nullify” the facts or law and acquit someone who clearly is guilty of a crime. Significantly, we give juries unreviewable powers to find a defendant not guilty. If the jury convicts someone, he or she may appeal. But, on account of constitutional protection against double jeopardy, the government may not appeal a conviction. The practical effect, and perhaps even the idea behind double jeopardy, is that juries have the power to acquit whenever justice so requires—even if the letter of the law does not. We do not want that power exercised routinely, but rather reserved for special circumstances.

The same holds true for impeachment, with “the best interests of the country” substituted for “justice” to a particular defendant. By making the Senate’s decision in the impeachment trial nonreviewable, the Constitution ensures that senators can take into account the best interests of the nation. Even if the normal criteria point to conviction and removal of the president, senators must ask themselves whether some reason exists why such a decision would unduly damage the nation.

Lesson 8

TIE GOES TO THE PRESIDENT EXCEPT WHEN HE HAS FORFEITED THAT PRESUMPTION

Members of Congress might also apply what we could call the Graham test after Lindsey Graham’s inadvertent assist to President Clinton. Graham, you’ll recall, acknowledged that reasonable people could disagree about whether Clinton’s actions warranted removal. Some thought it followed that conviction could not be justified, as any reasonable doubt should be resolved in favor of avoiding the radical action of removing the president. Another way of thinking about this is the time-honored rule in baseball that a tie goes to the runner. Tie (or even a close call) goes to the president—a corollary of the earlier lesson that impeachment is a last resort to be utilized only when clearly necessary. When in doubt, don’t throw him out.

However, there is a crucial exception to this proposition, what we might crudely call the “rotten store” factor. At one point during the Nixon impeachment process, Representative Paul Sarbanes, a Democrat from Maryland, explained to a reporter his support for impeachment. It was, he said, like sifting tomatoes in a vegetable store and finding that one after another was rotten. When you try other vegetables and find the same thing, at some point you ask, “What kind of a store is this?”¹⁰ Sarbanes, like many of his colleagues, decided that the Nixon White House was a rotten store—replete with lies and withholding of evidence, pervasive paranoia and obsession with retaliation against adversaries, “dirty tricks” against political opponents, and other suspicious behavior that could not be proven, such as the cause of the 18½-minute gap in a potentially key tape.

Such rottenness alone is not a basis for impeachment absent a proven impeachable offense. But gray areas will arise. Identifying whether particular acts constitute an impeachable offense is more art than science, and there will be cases of borderline high crimes and misdemeanors. In addition, even if members of Congress are satisfied that such an offense has been committed, they may in unusual cases determine that the nation is best served by allowing the president to serve out his or her term.

In either of these scenarios—borderline impeachable offenses or a clear impeachable offense that may nevertheless not warrant removal because of surrounding circumstances—one’s vote may be influenced by an overall assessment of the administration. Was the misconduct anomalous or was it part of a host of inappropriate behavior? Has the administration earned the benefit of the doubt or the reverse? Has the president acknowledged wrongdoing and shown contrition? It is appropriate, if not inevitable, that the overall tenor of an administration will come into play in close cases.

Lesson 9

IF ALL THE ABOVE CONDITIONS ARE MET, REMOVAL IS NOT ONLY JUSTIFIED BUT ALSO MANDATORY

During the Nixon crisis, Congressman John Anderson, an Illinois Republican who six years later would do surprisingly well as a dark horse candidate for president, reflected on a generational divide in attitudes toward impeachment: “Younger people see [it] as a method of rejuvenation; older people think of it and tremble.”¹¹

Both perspectives make good sense. To remove a duly elected president is a far-reaching move with profound consequences. It should be done only if necessary. It requires that an unfit president commit an impeachable offense, that there be bipartisan and public support to remove him, and no significant mitigating circumstance. But when these conditions are met, the president must be removed, and his removal should be seen as rejuvenating—use of an explicit constitutional remedy to sustain our constitutional democracy.

I have emphasized throughout the risk of impeachment undertaken too lightly. This perspective stems in part from the availability of other means of preventing tyranny. Thanks to the original Constitution in combination with the 22nd Amendment, a president can serve at most four years without facing the voters. We can generally wait out the president. But we should not ignore the risk in the opposite direction—underrating the damage an unfit president can do in that time.

I have said that when it is not necessary to impeach, it is necessary not to impeach. Sometimes, though, it is necessary to impeach. When such circumstances present themselves, we must demand from our servants in Congress bold and decisive action.

Lesson 10

DITTO THE TWENTY-FIFTH

What I have just said about impeachment applies equally to the 25th Amendment. To say the 25th Amendment should not be invoked lightly is an understatement. But to say that it can never be used absent physical disability is an overstatement. It should never be invoked unless it is truly necessary, but where it is necessary, not invoking it would be the height of irresponsibility.

Clearly, under the Constitution, if the president has committed no impeachable offenses, but is unfit, his vice president and cabinet may remove him. Especially in an era when the president controls weapons of mass destruction that can end the world as we know it, we can safely go further. If the president is unable to discharge the powers and duties of his office, which entails the ability to make rational decisions, he must be removed.

* In his book on impeachment, Cass Sunstein arrives at much the same principle, though he calls the principle “Neutrality.” Borrowing from the political philosopher John Rawls, Sunstein proposes that we put ourselves behind a veil of ignorance when approaching questions of impeachment, pretending we know nothing about the president except the acts he committed. Cass Sunstein, Impeachment: A Citizen’s Guide (Cambridge MA: Harvard University Press, 2017), pp. 14–15.