Published by The Lawfare Institute
in Cooperation With
During the Republic’s first 41 presidencies (Washington through Bush I), there were only two presidential impeachment episodes, both of them weighty. President Andrew Johnson was impeached in 1868 and avoided conviction by a single vote. In 1974, President Richard Nixon was well on his way to impeachment and conviction when he resigned.
The four presidencies after that saw three impeachments, all of them futile—meaning that it was clear well before the final vote was taken in the Senate that the president would be acquitted. What caused this change in impeachment practice? Why are futile impeachments pursued? What does it portend for Joe Biden, the fifth president to serve in this Age of Futile Impeachments? Finally, is there a better way for Congress to go about this?
The key to the design of impeachment is that the Constitution requires only a simple majority in the House of Representatives to impeach, while the bar is considerably higher—a two-thirds supermajority in the Senate—to convict. For the nation’s first two centuries, the House’s political judgments concerning impeachment paralleled the famous advice of The Wire’s Omar Little (paraphrasing Ralph Waldo Emerson): “When you come at the king, you best not miss.” There were plenty of instances in which the House was controlled by the opposition, and there were plenty of instances in which presidents engaged in questionable conduct, but the House did not move against the president unless there was a real possibility that he would be convicted by the Senate.
Andrew Johnson faced a situation unique in American history. His weak position, facing a Congress overwhelmingly controlled by the opposition, was a fluke brought about by an assassin’s bullet. Johnson is, in fact, the only president ever to face a Senate with more than two-thirds of its members in the opposition party. It is perhaps less surprising that Johnson was impeached than that he was acquitted.
Nixon’s case fit more squarely into the regular structure of impeachment in our two-party system. In 1970, before Watergate, then-Rep. Gerald Ford (R-Mich.) led an unsuccessful effort to impeach Supreme Court Justice William O. Douglas. During the process, Ford contended that an impeachable offense is whatever a majority of the House says it is, and that conviction results from whatever two-thirds of the Senate thinks warrants it. Ford was trying to be expansive in his definitions, but his legal-realist formulation actually underscored why presidential impeachment used to be so rare. Conviction occurs only when a two-thirds Senate majority—which typically would need to include significant numbers of the president’s own party—wants it. An impeachable offense is only what a majority of the House is willing to say is one, and, historically, the House was not willing if conviction was unattainable. Nixon was the only president whose conduct was so offensive to his own party that conviction became a realistic prospect. He quit under that shadow.
But even as the Nixon episode showed how the threat of a bipartisan impeachment and conviction could drive a president from office, the transition to the Age of Futile Impeachments had already begun. Ford’s effort to impeach Douglas, for instance, reflected the increased use of impeachment rhetoric. That movement has only accelerated. Philip Bobbitt put it perfectly when, describing the Trump era compared to the Nixon era, he wrote that we are now “more inclined to treat impeachment as a political struggle for public opinion, waged in the media, and less like the grand inquest envisioned by the Constitution’s Framers.”
Partisan polarization has brought the Age of Futile Impeachments into full blossom. In Nixon’s time, there was considerable ideological overlap between the parties. Southern Democrats were more conservative than many Republicans. Northeastern Republicans were more liberal than many Democrats. To be sure, getting a two-thirds Senate majority was not easy; it required winning over the center, plus either the left or the right. But the parties became more ideologically distinct and more polarized, and they largely vacated the center. Increasingly, getting a two-thirds majority required an improbable coalition that was not just bipartisan but bipolar: the fervent partisans aligned against the president, plus a big chunk of the fervent partisans aligned with the president. A tall order, to say the least.
Thus, when President Bill Clinton was impeached in 1998, 17 Democratic senators needed to vote against him for him to be convicted. Zero did. Similarly, when President Donald Trump was impeached for the first time, Democrats needed 20 Republican senators to join them. They got one.
That made these impeachments unsuccessful. What made them futile was that their ultimate failure was evident from the start. (To be clear, “futile” here doesn’t necessarily mean “worthless.”) But why did these House majorities pursue impeachment when it was obvious that their efforts were futile? The answer is the same: polarization. Back when there were substantial numbers of people in the center, getting a majority in the House required winning over some of these moderates. Now, with the center vacant, no such ideological breadth is needed. Only a majority controlled by the opposition party is.
This polarization is compounded by the two-party system morphing into something more like a two-reality system. The parties, their voters, and their respective media exist in separate bubbles. Not only do they demonize their opponents, but they believe in separate facts and form separate worldviews. These partisans are not very good at incorporating the other side’s point of view. When a president does something to incur an extra measure of the opposition’s indignation, it is hard for that opposition to fathom anyone actually being okay with it. If they have a simple majority in the House, their super-indignation will translate easily into a vote to impeach. The fact that the other side thinks the majority’s indignation is misplaced—or insincere, or even insanely wrong—will not change this.
In sum, it is easier than ever to find a House willing to impeach presidents at precisely the same time that it is harder than ever to find a Senate willing to convict them. Futile impeachments are the natural result.
While the phenomenon of futile impeachments is very real, though, this does not mean that such impeachments are inevitable or automatic. Presidents George W. Bush and Barack Obama were never impeached, despite facing opposition majorities in the House, and despite accusations of high crimes and misdemeanors made against them by members of those majorities. But in contrast to the situation with President Trump, House leaders were more restrained and the alleged offenses were not as intolerable.
Nor does the rise of futile impeachments mean that they are the only kind. At its outset, at least, the second Trump impeachment was not obviously futile. In the immediate aftermath of the shocking events of Jan. 6, there were some suggestions that key congressional Republicans leaders might turn against President Trump. And in the end, seven Republican senators voted against him, by far the largest number of senators who had ever voted to convict a president of their own party. If Jan. 6 had been bloodier, or if Trump’s role in it had been clearer, it is not unimaginable that 10 more Republican senators would have joined them and made for a two-thirds majority.
What does all of this mean for President Biden now that Republicans will control the House? House Republican leaders Kevin McCarthy (R-Calif.) and Elise Stefanik (R-N.Y.) have made clear that once they control the agenda, they will promote investigations of Biden and, depending on what they find, his impeachment. But the new Republican majority is exceedingly slim, and it is unclear at the moment whether McCarthy will win the vote to be speaker of the House. To become speaker, the next Republican leader will have to placate both the MAGA wing of the party that is demanding aggressive action against Biden, and those members elected from marginal districts whose ability to get reelected in 2024 would be threatened by joining the MAGA cause. This dynamic might put impeachment just out of reach.
If House Republicans do decide to press on with an impeachment agenda, though, they will not struggle to fill it. At the moment, leading topics for these pursuits appear to be Biden’s attempts to delay Saudi oil-production cuts, and anything about Biden’s son Hunter that Republicans can connect to the president himself; Stefanik likes to refer to the “Biden crime family.” And Republicans surely will find other grievances against Biden as well. Democrats will, no doubt, express strong views to the contrary, but they will do so from the minority.
In the end, Biden will get impeached if and only if House Republicans feel the need to step things up from normal opposition and rhetoric—which is already poisonous enough—and use impeachment, the weightiest weapon they have. The Clinton impeachment backfired on Republicans because Clinton was popular at the time; Gallup showed his approval rating was 73 percent at the time of his impeachment. With Biden polling at 40 percent, and with pretty much all of that 40 percent already voting against Republicans anyway, the House Republicans have less to lose than their Clinton-era counterparts did by being aggressive.
Again, though, the Republican majority is exceedingly slim—at best, 222 to 213, compared to the 233–198 advantage Democrats had the first time they impeached President Trump. Moreover, the Republicans’ weak performance in the 2022 midterms can be traced in part to voters’ rejection of the GOP’s fringes. As such, and notwithstanding the high level of polarization, there might be enough Republicans from marginal districts to temper the urges of the rest of the caucus and fend off impeachment.
If a serious impeachment effort proceeds, House Republicans, the Republican base, and the conservative commentariat will rally around the notion that Biden committed heinous offenses requiring his removal. Convincing themselves of that—the only thing they need to do to impeach Biden—is the easy part. To get a conviction, they will need to find evidence strong enough to convince 16 or 17 Democratic senators to bail on Biden as well. In our two-reality system, it is hard to imagine the Republicans succeeding in that effort. But this reality—or futility—will not prevent House Republicans from proceeding anyway.
There might also be an element of payback involved. Impeaching Biden, in other words, might be a way of saying, “You impeached our guy; don’t be surprised when we come back at you just the same.” Such a response is anathema to those who believe in neutral principles and the Golden Rule. If Republicans think that impeaching Trump was a foolish and inappropriate thing to do, then how can it justify turning around and doing the same thing to Biden? If the perspective is that impeachment should be used only in those rare situations when it has a reasonable chance of success, then there is no justification. But if the perspective is that the most important thing is for your side to win, and to hell with the other side, then it makes all the sense in the world. That does seem to be the perspective of both sides in Congress at the moment, and as long as that remains so, expect more futile impeachments flying back and forth as party control of the White House and the U.S. House of Representatives shifts.
Perhaps there are still people left who, deep down, care about neutral principles, though. Futile impeachments might reflect legitimate ends; there might be valid reasons for impeachment beyond securing a conviction. But if that is so, there might be better means to those ends.
Some of the other purposes of impeachment are deterrence, investigation, and publicity. But futile impeachments do not serve any of these goals very well either.
Deterrence is important. Only three presidents have been impeached, but every president has been constrained by the possibility of impeachment. If presidents were unimpeachable—if they were guaranteed a full four-year term regardless of what offenses they committed while in office—they surely would behave differently from how presidents have actually behaved. But a futile impeachment offers little deterrent effect. Andrew Johnson was much more restrained after his impeachment, but only because his acquittal was so narrow (that is, his impeachment was not futile) and because he had made concessions to secure it. Donald Trump provides a bold contrast. His acquittals were victories for him, showing that the Republican establishment had his back.
Investigation is a smaller part of the impeachment process than it used to be. Generally speaking, oversight of the executive branch is a vital role for Congress. Presidents can and do resist oversight, but impeachment is harder to brush off. Recent impeachments have not exhibited this feature though. Watergate had a massive, bipartisan congressional investigation. By contrast, the investigation underlying the Clinton impeachment was essentially outsourced to Independent Counsel Kenneth Starr, and the Trump impeachments did not feature much new investigation either. Investigation is hard work, and it is hard to convince Congress to do hard work when that work already looks to be futile.
Publicity is the one function of impeachment that futile impeachment actually advances. Being a high-profile, high-stakes affair, impeachment forces people to take notice of the accusations against the president in a way that nothing else can. If the opposition wants to broadcast its condemnation of presidential misdeeds, impeachment is the loudest way they can do that. The problem for advocates of impeachment is that it also provides the president and his defenders with a platform, allowing them to loudly broadcast their counternarratives. This is part of the reason why President Trump’s first impeachment did not prevent him from easily winning renomination in 2020. At this point, Trump is the leading candidate for the Republican nomination in 2024, notwithstanding his second impeachment. Within his own party, impeachment seems to have consolidated support for Trump more than it diminished it. If Trump falters politically and loses that support, it will most likely be for other reasons (the poor showing of the Trumpiest candidates in the midterms, say, or criminal indictments) and not because the unsuccessful impeachments somehow turned Republicans against Trump years after the fact.
It is hard, then, to see much value in futile impeachment. If a conviction seems possible, then impeachment can still make sense. But if a conviction is obviously out of reach, then another tack will usually make more sense: censure.
Speaker of the House Nancy Pelosi (D-Calif.) disagrees. After Trump was acquitted for the second time in early 2021, Pelosi was asked about censure and denigrated it as “a little slap on the wrist” that “lets everybody off the hook.” Pelosi was correct that a censure would have had no legal effect (if it had one, censure would be unconstitutional). It simply would have been a resolution expressing the sense of the House and/or the Senate that Trump was worthy of reproach—something that Congress has done against four presidents in the past. Pelosi might have felt that the impeachment, while futile, at least allowed the House to express its disgust with Trump’s conduct in a meaningful way. But when Trump was acquitted in 2021, he did not get even a little slap on the wrist; he got a victory. Censure would have been a defeat.
Importantly, there is good reason to think that censure would have attracted more Republican support than impeachment did. House Republicans like Kevin McCarthy promoted censure after Jan. 6 as an alternative to impeachment. It would have been a much swifter procedure than impeachment was, allowing for the vote to take place before passions had cooled. And as censure would require only a simple majority in the Senate to succeed, it would not have been futile there.
Convicting Trump in his second impeachment trial could have had consequences. Even though he had already left office, the Senate could have voted to disqualify him from future office, a consequence that gave pause even to some Republicans who criticized Trump’s conduct. Censure, being merely symbolic, likely would have given fewer Republicans pause. The only question before members of Congress would have been whether or not they condemned Trump’s actions.
This simplicity allows censure to have a more potent political effect. In the second Trump impeachment, some senators could—and did—straddle a line. They criticized Trump while still voting to acquit him on the basis of technicalities like the definition of high crimes and misdemeanors or the issue of whether Trump could be tried by the Senate after his term had ended. By contrast, some Republicans would have voted to censure Trump and others would have voted against it, but all would have been making it clear where they stood.
By providing a stronger and clearer expression of Republican disapproval, censure would have done more damage to Trump than the failed impeachment did. It would have been a slap in the face, not just a slap on the wrist. The point here is not anything about Trump, per se; the same points would apply to censuring President Biden versus futilely impeaching him. Using censure against any president will often make more sense than pursuing a futile impeachment does.