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12/13/2018

Michael Stokes Paulsen Reviews "To End a Presidency: The Power of Impeachment"
Michael Ramsey

In the current issue of the Harvard Law Review, Michael Stokes Paulsen: To End a (Republican) Presidency (132 Harv. L. Rev. 689 (2018)) (reviewing Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment (Basic Books 2018)).  From the introduction:

Alexander Hamilton foresaw it perfectly: impeachments of Presidents are by their nature political proceedings, conducted by political institutions exercising political judgment about the public wrongfulness of a President’s asserted misconduct. And built into that reality is the danger that presidential impeachments can become more about partisan loyalties than the merits of whether a President has engaged in serious wrongful conduct meeting the Constitution’s impeachment standard.

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Professor Laurence Tribe and attorney Joshua Matz have reinvented a 230-year-old wheel: Hamilton’s insight that impeachments can tend to become mere low-partisan political affairs rather than faithful applications of a principled (if broad) constitutional standard calling for principled (if political) judgment. Ironically, Tribe and Matz not only reinvent this wheel: they demonstrate it in operation.

To End a Presidency: The Power of Impeachment has much to commend it and gets a lot of things right; I will not fail to give those points their due. This is a serious book on a serious constitutional issue, addressed to a popular audience at a serious moment in U.S. history: the explosive presidency of Donald Trump. It has the virtues of very good timing, some good insights, and a powerful case for the constitutional propriety of impeaching President Trump. The discussion of Trump’s wrongdoings, and why he is properly subject to the Constitution’s impeachment standard, is effectively done — carefully crafted, clear, not greatly overstated, and mostly persuasive. Those parts of the book rank among its best features. So too, the book’s treatment of the practical political unlikelihood of impeaching Trump is for the most part well done: Tribe and Matz make a convincing (if demoralizing) case for the political futility of impeachment as a meaningful check on Presidents’ wrongdoing today, a futility attributable to entrenched partisanship.

But the book suffers from two major flaws: First, it is itself rather badly partisan. Second, it is predominantly strategic. The book’s constitutional analysis serves chiefly as prelude to an essentially realpolitik account of what can be done with respect to the goal of removing Trump from office: be realistic about the slim prospects for success, hold your fire, wait for your moment, don’t endanger Democratic seats in Congress, and remember that premature talk of impeachment can backfire. But don’t wait too long, or the world might end.

The first problem is acute and pervasive. While the authors purport to offer a “neutral” set of criteria for presidential impeachments — and purport to decry partisanship — the book is partisan in ways large and small. Not only is Trump deserving of impeachment (a conclusion with which many Republicans might agree, with which I agree, and one that can be defended on politically neutral terms) but so too has nearly every Republican President since Richard Nixon likely engaged in impeachable wrongdoing deserving of at least serious investigation.10×10. See infra pp. 713–14. On the other hand, Bill Clinton’s impeachment for perjury and obstruction of justice — arising out of allegedly false sworn testimony in judicial proceedings and subsequent efforts to cover up that falsity — was “contemptible” (p. xvi) and explainable only as an act of merciless partisan and personal spite (pp. 21, 103, 177, 239). ...

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In the remainder of this Review, I build on the themes and problems of Tribe and Matz’s analysis to address two larger questions concerning the relationship between the constitutional power of impeachment and the constitutional politics of its application.

First, what is the proper scope of the constitutional power of impeachment? What is the full range of meaning, the sweep, of the term “high Crimes and Misdemeanors”? To what types of misconduct by executive (and judicial) officers does it properly extend?

My thesis is that a careful consideration of the original, objective public meaning of the Constitution’s impeachment standard yields the conclusion that the impeachment power is extraordinarily broad, falling just short of plenary. Impeachment was regarded as an integral part of the Constitution’s system of separation of powers — a vital check in the hands of the legislative branch on believed executive and judicial misconduct. The Constitution’s original meaning supports a sweeping power of the two houses of Congress to remove officials for conduct they judge to be: in serious violation of the Constitution; an abuse or misuse of power lawfully possessed; a serious failure to perform the duties of office faithfully and responsibly; a betrayal of the public trust or compromise of vital national interests; corrupt conduct of any of a number of possible varieties; a serious criminal-law offense incompatible with continuance in public office; or other serious non-criminal personal misconduct.

In much of this, I occupy common ground with Tribe and Matz. But the constitutional bounds of the impeachment power extend further than the authors are willing to go. I will take issue, in particular, with their “Clinton Carve-Out” — the ways in which the authors deliberately depart from the Constitution’s original meaning to limit the scope of the impeachment power. The scope of that power is strikingly broad. Not all that it permits necessarily will be congenial to all political points of view or circumstances. But that does not mean we should jigger the meaning of a constitutional grant of power to reduce it to more desirable political proportions.

The second question builds on Hamilton’s concern: Given the breadth of the constitutional power of impeachment, what factors properly inform the constitutional judgment on the part of the House and Senate as to its proper exercise? How does one avoid the problem Hamilton anticipated — that of the political process of impeachment deteriorating into bare partisanship?

Here I will stake out an aggressively naïve position in even sharper disagreement with Tribe and Matz. Far from taking into account such considerations as whether a President retains popular support (pp. 21, 80, 102, 142–45); whether he is judged to pose an ongoing or prospective “danger of grave harm” (pp. 23, 42); the believed domestic or foreign policy implications of impeachment (pp. 100–02); the political or policy advantages or disadvantages of retaining the President (pp. 70–71, 80, 238); the believed partisan motives of one’s political opponents (pp. 70, 177); a tactical assessment of the likelihood that an impeachment will succeed in conviction and the dangers posed by failure (pp. 80, 191–99, 236–38); and who would be the removed President’s successor (p. 149), I submit that the impeachment judgment is properly concerned with none of these things but solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power. ...

Tribe and Matz respond (harshly) in the Harvard Law Review Forum:  To (Pretend to) Review Our Book (132 Harv. L. Rev. F. 78 (2018)).

Also of interest on this topic in the Forum, Nikolas Bowie:  High Crimes Without Law (132 Harv. L. Rev. F. 59 (2018)) (arguing, contra both Tribe/Matz and Paulsen, that impeachment for "High Crimes and Misdemeanors" requires an actual crime to have been committed, not merely misconduct in office).