This article was first published in the journal Democracy.
At the Constitutional Convention in 1787, the Founders talked up a storm. But when it came to the presidency, they were tongue-tied, with a long and embarrassing stretch of silence. George Washington, after all, was sitting right there. They all knew that Washington would be the first President, and he would never be a tyrant, they reassured each other, never a “Cromwell” or a “Caesar.” So they voted to create an office with few limits and few defined powers. Supreme Court Justice Robert Jackson later called their outline for the presidency “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
The Constitution did include one major check on potential presidential tyranny: impeachment. The chief executive could be impeached by the House and convicted and removed by two thirds of the Senate for “high crimes and misdemeanors” (by which they meant a political abuse of power, not just a vote of no confidence for “maladministration”). To James Madison, impeachments were “indispensable.” Elbridge Gerry explained, “A good magistrate will not fear them. A bad one ought to be kept in fear of them.” Benjamin Franklin drolly explained the stakes: Impeachment was better than the traditional method for dealing with a chief executive who had become “obnoxious,” which was “assassination.” After all, the President would “not only [be] deprived of his life but of the opportunity of vindicating his character.”
As with much else in the original Constitution, things turned out a bit differently than expected. For two centuries impeachment was the most potent sanction, powerful because it was largely unused. Over the past quarter century, though, presidents have been impeached three times, and each time they were acquitted. Impeachment, it turns out, doesn’t pack quite the constitutional punch that we all thought.
Two excellent but very different books by the lead managers who prosecuted the case against Donald Trump offer some clues about the need for impeachment, and the difficulty of ever imagining it working.
Adam Schiff’s Midnight in Washington describes his years of effort to hold Trump to account, a time when the House Intelligence Committee that he chaired was one more storied institution trashed by the President’s nihilistic partisans. A sober former prosecutor, Schiff was the principal congressional investigator of the support by Russia for Trump’s campaign, and the President’s often impulsive efforts to cover that up. Schiff was a denizen of both the secure basement facility where intelligence secrets were shared, and the MSNBC green room. He watched the descent of the Republican Party into a Trump worshiping cult. “When we began working together, [his Republican counterpart Devin] Nunes had not been an ideologue, but was more in the mold of a country club Republican,” Schiff observes. Before long he was peddling Trump’s conspiracy theories on Fox News. Schiff led the impeachment in late 2019 when it was revealed that Trump had put the arm on Ukraine to dig up dirt on Democrats in exchange for long-promised military aid. The Senate voted to acquit. Schiff’s book documents, deadpan, just how bonkers Trump’s conduct was, how egregious his entanglement was with Putin’s men. It’s a relentless rebuttal to Trump’s cries of “no collusion!” and “witch hunt!”
Jamie Raskin’s Unthinkable: Trauma, Truth, and the Trials of American Democracy focuses more narrowly on a few weeks in late 2020 and early 2021. The book is also a searing, very moving account of a heartbreaking personal tragedy, one entwined with public trauma. The day before the January 6 insurrection, Raskin buried his son, Thomas Bloom Raskin, a brilliant young man who had taken his own life as 2020 ended. Raskin’s grieving daughter and son-in-law (who is married to Raskin’s other daughter) were among those trapped by the rampaging mob, forced to hide under a desk for hours. In those first raw days of mourning, Raskin served as the Democrats’ lead impeachment manager. In a trial after Trump left office, 57 senators voted to convict him of inciting the insurrection, including seven Republicans. But even the gravest assault on the Constitution by the President was not enough for conviction.
There have been only five serious attempts to remove a President. The 1868 impeachment of Andrew Johnson unfolded as part of a great struggle over Reconstruction and the President’s refusal to protect formerly enslaved Black Americans. It was a bit of a mess: One of the charges critiqued Johnson’s speeches, alleging that he had assailed Congress “with intemperate, inflammatory and scandalous harangues . . . amid the cries, jeers, and laughter of the multitudes.” Not only that, but “in a loud voice.” The Senate acquitted Johnson by one vote.
Congress never seriously considered a presidential impeachment again until a century later. In July 1974, after two years of the Watergate scandal, the House Judiciary Committee approved impeachment articles with a strikingly bipartisan vote. Richard Nixon was charged with crimes—payoffs, obstruction of justice—and abuse of power. Two weeks later he resigned when Republican leaders told him he would lose in a Senate trial. A template for impeachment seemed to be in place: major abuse of power, criminal acts, and a careful and bipartisan consensus for action. It was not to be.
For a generation of Republicans, Watergate rankled. New York Times columnist and former Nixon speechwriter William Safire appended the suffix “-gate” to every scandal, major or minor, for decades. Payback came during Bill Clinton’s presidency. My old boss was impeached for lying under oath about his sexual affair with Monica Lewinsky. Voters disapproved of Clinton’s conduct, but saw it as personal not institutional, and they were downright livid about his smarmy pursuers. By the time of the Senate trial, Clinton’s approval rating soared to 71 percent. He, too, was acquitted, with none of the charges even receiving a majority vote.
All this brings us to Donald Trump, a walking constitutional crisis, the only President to be impeached twice. Historians will struggle to describe just how egregiously Trump smashed through norms and laws, a scene best captured in the lobby of his hotel a few blocks from the White House, jammed on a typical night with fixers, donors, and foreign diplomats in flagrant violation of the Constitution’s Emoluments Clause.
Looming above it all was the still shocking fact of Russia’s support for Trump in 2016, and his ham fisted attempts to cover it all up by firing the FBI director to stop him from looking into “this Russia thing.” As facts tumbled out and top aides and officials were convicted, Congress played little public role. Cable news viewers invested the probe led by Robert Mueller with almost supernatural authority, but its goals were always limited: looking for crimes to prosecute. When Mueller issued his muddled report and flopped in his congressional testimony, it seemed as if Trump had prevailed.
Trump certainly seemed to think that. On July 23, 2019, he spoke to high school students. “I have an Article II [of the Constitution], where I have the right to do whatever I want as President,” he said. It was his own declaration of independence. Two days later, Trump called Ukrainian President Volodymyr Zelensky, threatening to withhold military aid against Russia unless Ukraine did him “a favor” and spread dirt on Joe Biden and his family.
Schiff’s book is most compelling when he describes how he learned, in September 2019, with growing alarm, that officials were hiding an “urgent” whistleblower complaint. When the notes from the phone call were finally released, Schiff and his aides gathered in a windowless basement room to read it together. “We were all racing through the document, and it was a chorus of expletives and biblical references,” Schiff writes. Along with House Speaker Nancy Pelosi, he had previously resisted calls to impeach Trump for his myriad sins and crimes. Now, though, they had caught the President in the act, an effort to solicit foreign interference in the next election.
The impeachment itself quickly became mired in partisanship. I attended the first day of the Senate trial. Lawmakers, required to sit at their desks, looked as happy as students in detention. Most Democrats took notes in an effort to look engaged, but most Republicans sneered and did all they could to show they weren’t paying attention. (Over the hours, senators seemed especially attuned to the intermittent bathroom breaks.) Trump’s lawyers spoke twice as loud as the Democrats, looking up to the cameras and playing to the galleries and Fox News. Unlike during the Clinton trial, the Senate voted to call no witnesses. Senators voted to acquit on party line, except for Mitt Romney.
Although Raskin’s book focuses on just a few weeks, it paints on a wider canvas, returning again and again to his son Tommy and his descent into mental illness and despair. It is hard to read without wanting to hug your own children. And it is one more reminder of the extraordinary toll the pandemic has taken on mental health. His lengthy, novelistic description of the insurrection will be a prime historic source document. Raskin skillfully links the ugly explosion of violence to constitutionally perilous plotting, noting that the mob aimed to pressure Vice President Mike Pence to throw the election to the House, where Trump could win: “This synchronized coordination of bloodthirsty violence with extraconstitutional strong-arm tactics produces the radically unfamiliar but nonetheless feeling of a coup.”
One week after the insurrection, the House voted to impeach Trump. The President—still in office—had made war against the constitutional order. “As much as I supported the first impeachment, the Ukraine shakedown that was the basis for it had seemed abstract and impersonal to me,” Raskin writes. “But now, suddenly, the events demanding the impeachment of Trump were, for me, vivid, sharply drawn, bloody red, and concretely personal.”
Trump’s second Senate trial had a different feel. It began with a wrenching video presentation, the first time that many lawmakers had seen the scenes of violence outside their walls. Mitch McConnell had denounced Trump and the insurrection, and according to Raskin, he often looked as if he would cry. Republicans landed on a technical defense—that a President could not be convicted after leaving office, legally and historically wrong, but plausible enough as a dodge. Raskin explains that he never thought impeachment could win 67 votes needed to convict, but could win 76 votes, if McConnell approved. That is, McConnell could bring with him a majority of Republicans, Raskin theorized; the Republican leader needed most of his own caucus to go along, or he would lose his own job. In the end, only seven Republicans voted to convict.
So the worst thing any President ever has done against his country’s democracy did indeed elicit the most bipartisan impeachment ever—but it was not enough. As both authors argue, impeachment has tremendous potential value for a democratic republic. It is a chance to assert common constitutional values against a transgressor. But it may be losing its luster as it loses its novelty.
For starters, impeachment is a product of divided government. It simply isn’t a real option when Congress and the President come from the same party. Indeed, no President first elected by a popular majority has ever been impeached. (Johnson took office after Lincoln’s murder. Nixon in 1968 and Clinton in 1992; both won only 43 percent in three-way races. Trump, of course, twice lost the popular vote.) When I was working as a speechwriter for Bill Clinton, we read the book The Politics That Presidents Make by political scientist Stephen Skowronek. Unnervingly, he predicted that a constitutional crisis, perhaps impeachment, was in store for the newly reelected President—with the topic to be determined. Yes, there are gutsy exceptions to party discipline. Mitt Romney and Liz Cheney stand out. But a lawmaker who bucks his or her own party is considered, as John F. Kennedy wrote about one Republican senator who voted to acquit Johnson, a “profile in courage.”
Then there is the Constitution’s wording: “high crimes and misdemeanors.” Impeachments are not criminal trials. Raskin realized in a eureka moment that Trump’s refusal to testify could be used to infer guilt, as in a civil case, precisely for that reason. Technically, a President could be impeached for conduct that broke no criminal laws. But the public has come to expect a crime. Hence the search for a “smoking gun” during Watergate on the one hand, or the claims by Trump’s defenders that his Ukraine scheme was just foreign policy in action on the other.
Perhaps most practically, Congress has less power than is commonly supposed to gather evidence and testimony. Federal courts have long enforced criminal subpoenas even against the President, most recently in the 2020 Supreme Court case that had the effect of forcing Trump to turn over his taxes to the Manhattan district attorney. But judges recoil from enforcing congressional subpoenas. Even before the two trials, the Trump White House simply refused to comply with congressional oversight, and it turned out there was little Congress could do about it. Impeachment was long thought to be an exception: When George Washington invented the doctrine of executive privilege in response to congressional investigations, he made clear that, of course, impeachment is different. But not, it turns out, if a lawless President disagrees.
When a top Trump aide refused to testify before a congressional probe, federal judge Ketanji Brown Jackson ruled, “Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” (Jackson is the likely next Democrat to join the Supreme Court.) Alan Dershowitz snorted in response on Fox News. “Of course the President’s not the king,” he declared. “The President’s far more powerful than the king. The President has the power that kings have never had.” Trump didn’t rebuke Dershowitz; in the 2019 impeachment, he chose him to be his most prominent advocate on the Senate floor. Clinton had turned over 90,000 pages of documents; in the Ukraine impeachment, Trump provided none.
Other than impeachment, how to hold a lawless executive accountable? For starters, Congress can pass enforceable laws making clear the limits on executive privilege and setting up enforceable ways to resolve disputes. The Emoluments Clause, too, could be enforced by a statute. Good faith bargaining can no longer be assumed. It could set up a formal committee to enforce the 25th Amendment, which allows a President’s cabinet or Congress to temporarily strip power from an unstable President. (Raskin had introduced such a proposal.)
There are other ways to curb executive abuse. Congress is considering legislation to clarify and limit a President’s ability to declare an emergency (as Trump did to build his border wall), and to ensure that the White House does not improperly obstruct criminal investigations.
Then there is the urgent need to fix the battered machinery of American democracy. “The Electoral College is a creaky, shadowy place filled with hidden doors and booby traps galore,” Raskin writes, “the perfect jagged battleground for a lawless demagogue like Donald Trump, king of the deep-inside fix, the low blow, and the late hit, just the kind of place to whip up some kind of madcap switcheroo, an insider coup based on indefensible new ‘interpretations’ of the Constitution.” The Electoral Count Act, dating from 1887, should be revised to make clear that the voice of the voters, not the partisans, should determine the winner of presidential elections.
And what about impeachment itself? The insurrection impeachment suggested some lingering willingness in both parties to act institutionally rather than as partisan commandos. Since then, battle lines have hardened again. Liz Cheney lost her post as GOP caucus chair for her heresy. Her colleagues who voted to impeach face primaries and threats, and several have retired. If the Republicans retake the House and Senate, there will be momentum to impeach Joe Biden for his outrageous sin of . . . well, whatever. Ted Cruz already has announced as much.
Raskin and Schiff would argue that we all must take seriously the need to hold a would-be tyrant to account. After all, there’s a very real chance that the next President won’t be George Washington, but Donald Trump again, this time elected—or installed—as the head of a violent, anti-democratic movement.
