Published by The Lawfare Institute
in Cooperation With
Let’s say that you or your political ally have engaged in some behavior that have people talking about impeachment. You find yourself in impeachment territory. Is there no way out of that territory? If that were true, then your best option might just be to build a fort where you stand and cover-up, obstruct, deny and defend as aggressively as possible. Some politicians have taken this approach. It does not always end well.
There may be another option, however, and that is to work your way back out of impeachment territory. To do so requires appreciating that impeachments are matters of constitutional politics, not legalities. The impeachment power is entrusted to Congress as a potential remedy to a severe political problem, but the impeachment power is the heaviest artillery in the congressional arsenal and should not be used if other, less dramatic remedies are available and can get the job done. It should often be possible for Congress and the White House to walk back out of impeachment territory in four steps if they approach the problem as a political one with potential political remedies.
First, it makes sense to get all the cards on the table. It is a familiar refrain that the cover-up can be worse than the crime. In the current circumstances, investigation and disclosure make particular sense. The Trump administration is currently working with a politically friendly Congress. That might not be true after the 2018 midterm elections. Ignoring scandals or interfering with investigations just feeds suspicion that there are worse things to be found, and encourages even more demands for more investigations down the road. Confidently laying out the facts before a friendly audience promises to set up whatever mea culpas and reforms are necessary while deflating the opposition’s source of indignation and cutting off the steady drumbeat of uncontrolled revelations. In that sense, the Trump administration should welcome the appointment of a special counsel and ramped-up congressional inquiries and declare its confidence that the air will soon be cleared with its full cooperation. Optimally, the administration should want to clear its name, with all deliberate speed, in a friendly forum and be in a position to declare that a judgement has been reached and that it is time to move on.
Second, given the problematic behavior that has been uncovered, it is essential to take effective steps to be able to credibly claim that those mistakes are in the past and will not be repeated. Those steps might require changes in personnel, changes in operational practices, changes in institutional arrangements, or new resolves regarding personal behavior. The goal of all such reforms is to create effective remedies to the apparent political problem and contain any offenses safely in the past. Impeachments are driven by the need to solve a political problem of intolerable bad behavior. The force behind an impeachment effort can be dissipated if the political problem can be resolved by other, less drastic means. If there are concerns that an investigation was improperly obstructed, then steps should be taken to demonstrate that in fact all necessary investigations are speeding ahead unhampered. If there are concerns that classified intelligence is not being properly handled, then steps should be taken to demonstrate that any errors were isolated incidents with no prospect of recurrence. If impeachment threats are treated as political responses to perceived political problems, then a wide array of possibilities become available for addressing and ameliorating those problems. Admitting that there is a problem, however, is the first step toward a solution.
Third, once the facts are in evidence, it is possible to make a reasoned argument about whether anything that has happened rises to the level of an impeachable offense. There is no finite and stable list of impeachable offenses. All assessments of impeachable offenses are deeply contextual and political. Actions that may have been normal or perhaps scandalous in some contexts can seem far more threatening in other contexts. The impeachment effort can be a means for reinforcing well-established norms after their apparent violation, and can even be a vehicle for constructing new norms that had not been previously recognized or received widespread assent. In such circumstances, the president and his defenders must make a choice either to dispute the existence of the posited norm or that it has been egregiously violated or to embrace the threatened norm and insist that it has already been fully vindicated. Impeachments are forward-looking as much or more than they are backward-looking. They send a message to other political actors that this kind of behavior will not be tolerated. A president can dispute whether that is a message the Congress really wants to send, or the president can reassure Congress that the message has already been fully received and there is no additional educative value to be gained by proceeding with an impeachment. If, for example, members of Congress are concerned that the president is not sufficiently scrupulous in respecting the professional independence of investigations of those close to the president, then the available responses are either to double-down on the presidential prerogative and insist that those members are wrong about the appropriate constitutional norm or to concede the value of the norm of investigatory independence and insist that everything possible is now being done to respect that norm even if some errors had been made in the past. Offenses might have occurred, but they should not be regarded as necessitating an impeachment. If the backdrop is a concern that the president is generally unfit for the responsibilities of the office, then the most compelling response is to demonstrate that such worries are unfounded. Mistakes of inexperience are of a very different character than mistakes of malice or indifference, and the president must work to characterize any offenses committed as fundamentally innocent and amenable to correction.
Importantly, these arguments are all fundamentally political, not legal. The standard for impeachable offenses is ultimately political, requiring contextual political judgements about the nature and severity of the offenses rather than a legal judgement about whether they meet some predetermined criteria. Moreover, the audience for these arguments is ultimately political. The president and his defenders must persuade the members of the House and Senate, and beyond them the American people, that no unforgivable sins have been committed. That is not primarily a lawyerly task but a political task. If the president loses the battle for public opinion, then the legislative conclusion that the offenses are in fact impeachable will follow.
Finally, there should be serious consideration of whether impeachment is the appropriate and necessary remedy for the problems that have been revealed. The impeachment power does not exist to punish wrongdoers and vindicate injustices. It exists to address the potential political problem of abusive public officials who cannot be adequately checked by other means. Although it is conceivable that behavior revealed by a thorough investigation would make it impossible to tolerate the president finishing out his term, that is generally unlikely. Impeachment should be the last option rather than the first option for addressing problems in the executive branch. Ongoing abuses that cannot be otherwise controlled might justify impeachment and removal, as would offenses so grave that they render an individual unsuitable for the continued responsibilities of his or her office. There mere presence of an offense that might under some circumstances warrant an impeachment does not by itself establish whether an impeachment is necessary in these circumstances.
There is a reason that most federal impeachments have involved judges and have attracted bipartisan support in Congress. The combination of bad behavior, life tenure and judicial independence means that impeachment and removal are the only adequate method for assuring citizens that they can have faith in the impartiality and fairness of their judicial system and for emphasizing to judges that they can and will be held accountable when they go astray. Presidents are not similarly situated. They are held accountable at the voting booth. Their tenure is limited. They are subject to a multitude of checks on their behavior. Individual citizens are not directly affected by failures of presidential temperament and virtue. The presidential task in the face of an impeachment threat is to reassure legislators and the public that he can be trusted to go forth and sin no more. If the reforms adopted in step two are well done, the president should be able to persuasively claim that mistakes were made but that solutions have been found to prevent those mistakes from recurring again in the future. Impeachment at that point would accomplish nothing, while distracting the government from conducting the people’s business. President Bill Clinton and his defenders could reasonably argue that the Republicans in Congress should “move on” because his personal failings had already been fully accounted for by the voters in his election and reelection and there was no reason to imagine that the scandals revealed posed any ongoing threat to the republic. President Andrew Johnson, by contrast, fought with his opponents over the use of presidential power until the final hour, but then saved his presidency by apparently cutting a deal with wavering senators to assure them that he would cease all obstruction to congressional policy and to the political fortunes of the Republican Party. Once that deal was made, the crisis was averted and Johnson’s conviction and removal could serve no further purpose.
Because the decision to impeach and then to convict is a political one, the challenge for a president under scrutiny is to show that there is no political advantage to pursuing an impeachment. It should be easier for the president to persuade members of his own party that this is true, and thus far better for the question to be fully mooted and resolved while his party is in a position of relative strength rather than having to make that argument to a hostile congressional majority. Presidents are well positioned to work their way out of impeachment territory, but doing so requires confronting the political problems directly and reduce the threat from being a constitutional one to being one of normal politics to be resolved by ordinary political means.