Potus Geeks Summer Reruns: Lessons Learned From Impeachment
In November of 2019 we looked at the process of impeachment and the instances throughout American history when this method of removing a federal officeholder has been used, including in the efforts to remove a number of Presidents from office. On November 30, 2019, we wrapped up that series with an essay setting out the lessons learned from past impeachments. That essay is reproduced below.
As has been seen from this series, impeachment of a President is as much a political process as it is a legal or constitutional one, perhaps more so. When the founders met at the Constitutional Conference in 1787, they appreciated that there was a need to be able to remove a president, in between elections, in clear cases where the President was treasonous or subject to bribery, and that there may be other reasons to thwart the will of the electorate. But they struggled to define precisely what the parameters for impeachment were.
James Madison did not want a President to be impeached merely for being unpopular. Madison argued that this power was necessary where a nation was led by a single executive. Madison reasoned that while a legislature's collective nature provided security, in the case of a President, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."
It was George Mason of Virginia who suggested that in addition to treason or bribery as grounds for removing a president from office, the provision should add "and other high crimes and misdemeanors." The result was the current language in the article as it exists today. After the wording was agreed upon, Edmund Randolph of Virginia explained: "No man ever thought of impeaching a man for an opinion or even for making a mistake, so long as the error came while in honest search of an ideal course." James Irredell of North Carolina agreed, stating that impeachment required "wicked motive."
Thus far in history, two Presidents have been impeached (Andrew Johnson and Bill Clinton), and both were acquitted at trial, though in Johnson's case it was by the slimmest of margins. That might not have been the result if Richard Nixon's case if he had not resigned before impeachment had occurred, as it was almost certain to. In the case of the current inquiry concerning Donald Trump, an early reading of the tea leaves suggests that the result in the cases of Johnson and Clinton will once more be repeated.
The most prominent category for impeachment is for "high crimes and misdemeanors," a term for which there is no precise (or even imprecise) statutory definition. It is a term of art and therefore the term allows for the removal of an official from office for entirely subjective reasons. In one sense this is a good thing, because it is impossible to create an exhaustive list of what constitutes the term. On the other hand it has the potential for abuse because of its subjective nature. It can be whatever Congress says it is, not necessarily a good thing if Congress is overrun by vindictive or populist officials. Once again we come back to the conclusion that impeachment is first and foremost a political process, rather than a legal one.
In the case of Andrew Johnson, it was almost certainly that. Johnson was unpopular. He was despised by the Radical Republicans and by all those who believed he was undoing much of what had been won by the Union in the bloody war that the nation had just experienced. Still, it is difficult to justify Johnson's removal from office on the stated grounds: his desire to replace a member of his cabinet. While Johnson technically had "broke the law", namely the Tenure of Office Act, it was clearly an unconstitutional law, one created for reasons of pure political spite. Johnson's impeachment was not about law-breaking, it was about politics. Still, it was tempting for the Senate to compromise its principles in order to be rid of this dangerous accidental president, and it nearly did so. Johnson escaped impeachment by just one vote.
John F. Kennedy would later call the act of Democratic Kansas Senator Edmund Ross a "profile in courage" for his vote against Johnson's impeachment. Some historians have claimed that Ross voted against conviction due to concerns about his colleague Samuel C. Pomeroy receiving patronage from the prospective new President, Benjamin Wade, and as a means to receive patronage favors from Johnson. Others claim Ross cast his vote because he genuinely believed that Johnson had the right to replace Edwin M. Stanton as Secretary of War in Johnson's cabinet, since Stanton had been appointed during the Lincoln Administration and not by Johnson. Whichever version is correct, it doesn't change the fact that Johnson's impeachment was really about politics.
The impeachment of Bill Clinton also turned out to be largely about politics, although there was strong evidence that Clinton had lied under oath when he had denied having sexual relations with intern Monica Lewinsky in a deposition in the Paula Jones case. Clinton claimed to have a technical defense based on a convoluted agreed-upon definition of "sexual relations". Like Johnson, many were disgusted by Clinton personally. His sanctimonious public denial in the media of hanky-panky with Lewinsky would be proven false when it was discovered that a stain on a little blue dress proved him wrong. It wasn't a lie under oath, but it was a lie to face of the American people. The politics of the matter further muddied the waters when it came to light that many of Clinton's accusers had strayed from their own marriage vows, and many also questioned whether Clinton's marital infidelity ought to have been the subject of an inquiry by a special prosecutor looking into an alleged crooked real estate deal in the first place.
Richard Nixon's case is perhaps the clearest of all when it comes to determining whether or not the President had committed an actual crime. Tape recordings showed Nixon's complicity in the plan to cover up criminal acts and to obstruct justice. The fact that Nixon required a pardon after the fact is further evidence of his criminal conduct, even though he never admitted as much.
In all four cases, including that of Donald Trump, matters have been complicated by the fact that the President in question had significant moral failings and were not the finest of human beings. Johnson was a racist and a white supremacist who saw persons of different color as inferior. Nixon was a foul-mouthed bigoted who had an inflated sense of entitlement that convinced him that as president, his illegal acts were excused, much like the divine right of kings. Clinton used his power imbalance to further his quest for sexual gratification. His past was filled with enough of the smoke of accusations of sexual assault to cause many to believe that there must also be fire.
In the case of Donald Trump, his practice of insulting and demeaning "tweets", his blatantly false denials of what often appear to be obvious facts, his past disrespect for war heroes like John McCain, his mocking of a disabled journalist and his misogynistic locker room talk about women makes him an easy target for those want to muddy the Constitutional waters of the process. If history has taught us one thing, it is that impeachments are never run on the motto of "principles before personalities."
The impeachment process is further complicated by the fact that every even-numbered year is an election year, either a midterm (in the case of Nixon in 1974 and Clinton in 1998) or a Presidential election (in the case of Johnson in 1868 or Trump in 2020). For the party out of power, impeachments offer a lot of free advertising, all of it negative. This often offers strong motivation for foregoing a thoughtful consideration of whether or not a matter warrants impeachment on a proper constitutional grounds.
From the lessons of history, it is likely that Donald Trump will be impeached in the House of Representatives. This requires only a vote by a simple majority. Whether or not one believes that a case has been made supporting an allegation of "high crimes and misdemeanors" against him doesn't seem to matter. Today's polarized political climate likely means that virtually all Democrats will fall in line and vote for impeachment. It is similarly a virtual certainty that almost all Republicans will vote against conviction at trial, putting party loyalty ahead of impartiality. The process of impeachment isn't about its intended constitutional purpose, as much as it about setting the table for the 2020 election.
It's problematic that in recent times elections have been less and less about issues and more about sound-bytes and social media trends. They are about creating the narrative, rather than being a genuine solution-oriented exercise. This has become more so as media networks display messages that identify more closely with one ideology or the other. In the coming election debate, how much will be said about debt and deficit spending, about the effects of climate change, about income disparity, or about what rational gun laws or fair taxation looks like?
The tea leaves say that little will be said about issues in the 2020 campaign, and that it will be about personalities above principles. We shall see if they are correct.
As has been seen from this series, impeachment of a President is as much a political process as it is a legal or constitutional one, perhaps more so. When the founders met at the Constitutional Conference in 1787, they appreciated that there was a need to be able to remove a president, in between elections, in clear cases where the President was treasonous or subject to bribery, and that there may be other reasons to thwart the will of the electorate. But they struggled to define precisely what the parameters for impeachment were.
James Madison did not want a President to be impeached merely for being unpopular. Madison argued that this power was necessary where a nation was led by a single executive. Madison reasoned that while a legislature's collective nature provided security, in the case of a President, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."
It was George Mason of Virginia who suggested that in addition to treason or bribery as grounds for removing a president from office, the provision should add "and other high crimes and misdemeanors." The result was the current language in the article as it exists today. After the wording was agreed upon, Edmund Randolph of Virginia explained: "No man ever thought of impeaching a man for an opinion or even for making a mistake, so long as the error came while in honest search of an ideal course." James Irredell of North Carolina agreed, stating that impeachment required "wicked motive."
Thus far in history, two Presidents have been impeached (Andrew Johnson and Bill Clinton), and both were acquitted at trial, though in Johnson's case it was by the slimmest of margins. That might not have been the result if Richard Nixon's case if he had not resigned before impeachment had occurred, as it was almost certain to. In the case of the current inquiry concerning Donald Trump, an early reading of the tea leaves suggests that the result in the cases of Johnson and Clinton will once more be repeated.
The most prominent category for impeachment is for "high crimes and misdemeanors," a term for which there is no precise (or even imprecise) statutory definition. It is a term of art and therefore the term allows for the removal of an official from office for entirely subjective reasons. In one sense this is a good thing, because it is impossible to create an exhaustive list of what constitutes the term. On the other hand it has the potential for abuse because of its subjective nature. It can be whatever Congress says it is, not necessarily a good thing if Congress is overrun by vindictive or populist officials. Once again we come back to the conclusion that impeachment is first and foremost a political process, rather than a legal one.
In the case of Andrew Johnson, it was almost certainly that. Johnson was unpopular. He was despised by the Radical Republicans and by all those who believed he was undoing much of what had been won by the Union in the bloody war that the nation had just experienced. Still, it is difficult to justify Johnson's removal from office on the stated grounds: his desire to replace a member of his cabinet. While Johnson technically had "broke the law", namely the Tenure of Office Act, it was clearly an unconstitutional law, one created for reasons of pure political spite. Johnson's impeachment was not about law-breaking, it was about politics. Still, it was tempting for the Senate to compromise its principles in order to be rid of this dangerous accidental president, and it nearly did so. Johnson escaped impeachment by just one vote.
John F. Kennedy would later call the act of Democratic Kansas Senator Edmund Ross a "profile in courage" for his vote against Johnson's impeachment. Some historians have claimed that Ross voted against conviction due to concerns about his colleague Samuel C. Pomeroy receiving patronage from the prospective new President, Benjamin Wade, and as a means to receive patronage favors from Johnson. Others claim Ross cast his vote because he genuinely believed that Johnson had the right to replace Edwin M. Stanton as Secretary of War in Johnson's cabinet, since Stanton had been appointed during the Lincoln Administration and not by Johnson. Whichever version is correct, it doesn't change the fact that Johnson's impeachment was really about politics.
The impeachment of Bill Clinton also turned out to be largely about politics, although there was strong evidence that Clinton had lied under oath when he had denied having sexual relations with intern Monica Lewinsky in a deposition in the Paula Jones case. Clinton claimed to have a technical defense based on a convoluted agreed-upon definition of "sexual relations". Like Johnson, many were disgusted by Clinton personally. His sanctimonious public denial in the media of hanky-panky with Lewinsky would be proven false when it was discovered that a stain on a little blue dress proved him wrong. It wasn't a lie under oath, but it was a lie to face of the American people. The politics of the matter further muddied the waters when it came to light that many of Clinton's accusers had strayed from their own marriage vows, and many also questioned whether Clinton's marital infidelity ought to have been the subject of an inquiry by a special prosecutor looking into an alleged crooked real estate deal in the first place.
Richard Nixon's case is perhaps the clearest of all when it comes to determining whether or not the President had committed an actual crime. Tape recordings showed Nixon's complicity in the plan to cover up criminal acts and to obstruct justice. The fact that Nixon required a pardon after the fact is further evidence of his criminal conduct, even though he never admitted as much.
In all four cases, including that of Donald Trump, matters have been complicated by the fact that the President in question had significant moral failings and were not the finest of human beings. Johnson was a racist and a white supremacist who saw persons of different color as inferior. Nixon was a foul-mouthed bigoted who had an inflated sense of entitlement that convinced him that as president, his illegal acts were excused, much like the divine right of kings. Clinton used his power imbalance to further his quest for sexual gratification. His past was filled with enough of the smoke of accusations of sexual assault to cause many to believe that there must also be fire.
In the case of Donald Trump, his practice of insulting and demeaning "tweets", his blatantly false denials of what often appear to be obvious facts, his past disrespect for war heroes like John McCain, his mocking of a disabled journalist and his misogynistic locker room talk about women makes him an easy target for those want to muddy the Constitutional waters of the process. If history has taught us one thing, it is that impeachments are never run on the motto of "principles before personalities."
The impeachment process is further complicated by the fact that every even-numbered year is an election year, either a midterm (in the case of Nixon in 1974 and Clinton in 1998) or a Presidential election (in the case of Johnson in 1868 or Trump in 2020). For the party out of power, impeachments offer a lot of free advertising, all of it negative. This often offers strong motivation for foregoing a thoughtful consideration of whether or not a matter warrants impeachment on a proper constitutional grounds.
From the lessons of history, it is likely that Donald Trump will be impeached in the House of Representatives. This requires only a vote by a simple majority. Whether or not one believes that a case has been made supporting an allegation of "high crimes and misdemeanors" against him doesn't seem to matter. Today's polarized political climate likely means that virtually all Democrats will fall in line and vote for impeachment. It is similarly a virtual certainty that almost all Republicans will vote against conviction at trial, putting party loyalty ahead of impartiality. The process of impeachment isn't about its intended constitutional purpose, as much as it about setting the table for the 2020 election.
It's problematic that in recent times elections have been less and less about issues and more about sound-bytes and social media trends. They are about creating the narrative, rather than being a genuine solution-oriented exercise. This has become more so as media networks display messages that identify more closely with one ideology or the other. In the coming election debate, how much will be said about debt and deficit spending, about the effects of climate change, about income disparity, or about what rational gun laws or fair taxation looks like?
The tea leaves say that little will be said about issues in the 2020 campaign, and that it will be about personalities above principles. We shall see if they are correct.