When Should a President Be Impeached?

The New York Times Opinions 1 month ago
CreditIllustration by Nicholas Konrad; Photographs by Tom Brenner for The New York Times and Anna Moneymaker/The New York Times

What just happened: Having resisted calls for Donald Trump’s impeachment on various charges since she became speaker of the House in January, Nancy Pelosi announced on Tuesday that the House will open a formal impeachment inquiry into the president. The disclosure that he had pressed his Ukrainian counterpart on a call to investigate unsubstantiated claims of corruption against the son of the leading Democratic presidential candidate, Joe Biden, made it almost impossible for Ms. Pelosi to hold out. Reports that the president had frozen almost $400 million in military aid to Ukraine before the call proved decisive.

The debate: When is impeaching the president the right thing to do?


WHAT YOU NEED TO KNOW

The president’s critics have found numerous justifications for impeachment throughout his tenure, including obstruction of justice during the Mueller investigation, violations of campaign finance laws in the payment of hush money to two women and what seems to be regular defiance of the Constitution’s emoluments clause.

The House speaker, Nancy Pelosi, however, had until now been unwilling to make what she saw as a doomed commitment: While a simple majority in the House of Representatives is enough to impeach, convicting and removing the president requires the support of two-thirds of the Senate, now controlled by Republicans who show no signs of defecting.

Impeachment is a process whose territory remains largely uncharted, since only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached, and neither was convicted. “Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood,” Noah Feldman and Jacob Weisberg have written in The New York Review of Books. “There are no judicial opinions that create precedents for how and when to proceed with it.”


THE QUESTIONS

What is an impeachable offense?

The Constitution specifies two crimes — treason and bribery — for which the president can be impeached, as well as a third, broader category of “other high Crimes and Misdemeanors.” It is generally understood that to the drafters of the Constitution, the word “high” referred not to the severity of a given crime but to the abuse of high office.

Otherwise, though, what falls under the category of impeachable offenses is a matter that floats free from the rest of the American legal code. The slippery nature of the concept spurred Gerald Ford’s famous declaration in 1970 that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” That’s true, but which offenses should Congress consider impeachable? The debate over how to answer that question revolves around a couple of hypotheticals:

A crime that’s not an impeachable offense?

“I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters,” Mr. Trump famously said at a campaign rally during the 2016 presidential race. As it happens, an imagined scenario in which the president commits murder was raised as far back as 1789. Michael Stern, former senior counsel to the House of Representatives, writes that “there is no serious question that our murdering president could be impeached for his crime.”

But “not all crimes by federal officials have been seen as impeachable,” write Laurence Tribe, a professor of constitutional law at Harvard, and Joshua Matz, an adjunct professor at Georgetown Law, in their book “To End a Presidency.” So where exactly does the line fall? During Bill Clinton’s impeachment trial, Mr. Tribe argued that his conduct did not rise to the level of an impeachable offense because it involved conduct relating to his private life.

But Michael Stokes Paulsen, a professor of law at the University of St. Thomas, disagrees, claiming the distinction is contrived: “Perjury and obstruction of justice are serious felonies (even if somehow cast as ‘private-capacity’ wrongs),” he writes. “They are not quite like gunning down a man, but they are serious wrongs against the public and the administration of justice.”

Ultimately, the line between an offense that’s impeachable and one that’s merely objectionable remains just as obscure as it was during Clinton’s trial. In the words of the Congressional Research Service’s Constitution Annotated:

There appeared to be broad consensus in the Senate that some private crimes not involving an abuse of power (e.g., murder for personal reasons) are so outrageous as to constitute grounds for removal, but there was no consensus on where the threshold for outrageousness lies.

An impeachable offense that’s not a crime?

In 1974, the House Judiciary Committee’s second article of impeachment against Richard Nixon alleged an abuse of power in his Watergate cover-up, a political judgment with a legal foundation. (Nixon resigned before his impeachment could be formalized.) In the case of Mr. Trump’s Ukraine call, some argue that his conduct amounted to an abuse of power that likewise violated both the Constitution and criminal law. Leah Litman, an assistant professor at the University of Michigan Law School, wrote for NBC News:

Trump sought to use the extensive powers of his office to get a foreign government to open an investigation that would be damaging to a political rival. … Using the office of the president for personal political benefit comports with both the standard understandings of bribery and the broader category of high crimes and misdemeanors.

Many caution that without an underlying criminal offense, like bribery, impeachment risks becoming a partisan political weapon.

The argument against this sort of ad hoc impeachment has its roots in Supreme Court Justice Benjamin Curtis’s defense of President Andrew Johnson during his impeachment trial in 1868. As Nikolas Bowie, an assistant professor at Harvard Law School, writes in the Harvard Law Review, Curtis believed that retroactively criminalizing a president’s behavior — inflammatory, racist campaign speeches — would violate a fundamental principle of common law: “There must be some law,” Curtis argued, “otherwise there is no crime.”

Mr. Bowie argues that the decision to impeach Mr. Trump without any statutory justification would set a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future Presidents whose policies happen to misalign with a congressional majority.”

What if impeachment is a dead end?

“The president must be held accountable. No one is above the law,” Speaker Pelosi said Tuesday. But she had previously insisted that impeaching the president without the Senate votes needed for conviction would be a futile exercise. She told The Washington Post in March:

Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.

But others, invoking the judgment of history, maintain that political considerations shouldn’t enter the calculus. Members of Congress made an oath to support and defend the Constitution, and to look the other way when it’s being violated is to abdicate that responsibility.

We have to do our job,” said Representative Alexandria Ocasio-Cortez, an early advocate of impeaching Trump, earlier this month. She added:

I want to see every Republican go on the record and knowingly vote against impeachment of this president, knowing his corruption, having it on the record so that they can have that stain on their careers for the rest of their lives because this is outrageous to protect the amount of lawlessness and corruption coming out of this presidency.

Others argue that the process of impeachment itself, by expanding congressional investigatory powers, can help produce the evidence the case requires. The chairman of the House Judiciary Committee, Jerrold Nadler, for example, has said the courts would be more likely to enforce the subpoenas the Trump administration is currently defying if such legal battles were waged under the banner of impeachment. At Lawfare, Molly Reynolds and Margaret Taylor write:

The White House’s principal justification for its current stonewalling strategy for ongoing House investigations would not be relevant in the context of impeachment. … We think it is entirely possible — probable even — that judges would recognize the primacy of impeachment proceedings against the president of the United States and expedite consideration of such cases.

Still, even those who believe the current president ought to be impeached say the process carries grave risks. As Mr. Tribe and Mr. Matz write, impeachment “turbocharges forces of dysfunction and despair in our democracy”:

Perhaps the single greatest risk of any impeachment, no matter how justified, is that a minority will view it as a gussied-up coup d’état. … Those citizens might simply walk away from our shared democratic project, concluding that their votes and voices don’t matter. Or they might drift ever more deeply into revolutionary politics, concluding that our democracy is rotten to the core. In the worst of all worst cases, they might even take up arms — especially if the ousted president refuses to depart gracefully and instead terrorizes the polity that rejected him.


THE TAKEAWAY

One way or the other, if the option of undoing an election is on the table, something has gone very wrong. The paradox of impeachment is that it relies on a legislative body that represents the public to solve a crisis that the public helped set in motion — in some cases, one could argue, with foreknowledge of the potential for disaster.

Institutions, in other words, cannot save democracy from itself. It’s a problem Alexis de Tocqueville recognized almost 200 years ago. “I do not say that there is a frequent use of tyranny in America at the present day,” he wrote in 1835, “but I maintain that there is no sure barrier against it, and that the causes which mitigate the government there are to be found in the circumstances and the manners of the country more than in its laws.”


MORE PERSPECTIVES

Charlie Savage explains how impeachment works. [The New York Times]

Linda Greenhouse puts four recent books on impeachment in conversation with one another and the Mueller report. [The New York Review of Books]

Mehdi Hasan and Ezra Klein discuss the arguments for and against impeaching President Trump. [The Intercept]

Keith E. Whittington asks whether the House should impeach if the Senate won’t convict. [Lawfare]


WHAT YOU’RE SAYING

Here’s what readers had to say about the last debate: Should the presidency have an age limit?

Victor, a surgeon from New Hampshire, commented that the airline pilot profession has a mandatory retirement age. “You can’t tell me that it’s less taxing to be president than to be a pilot or surgeon,” he wrote.

And another reader commented: “Given that women on average are healthier than men at any given old age and live longer, wouldn’t an age limit be sexist and discriminatory against women?”


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