Be Careful What You Wish for: Impeachment in the Trump Era.

• Author: Healy, Gene

TABLE OF CONTENTS TABLE OF CONTENTS 769 I. INTRODUCTION 770 II. IMPEACHMENT HISTORICALLY: SAFE, LEGAL, AND ALL TOO RARE 770 III. BAD PRECEDENTS 773 A. Trump Round One 775 B. Trump Round Two 776 IV. CONCLUSION 779 I. INTRODUCTION

Having now gotten some distance and perspective on the head-spinning Trump presidency, what have we learned about the way presidential impeachments are likely to work in the future?

Presumably, we've learned a lot over the last few years, thanks to Donald Trump. Say what you will about the man, but he single-handedly doubled the number of presidential impeachments. As he might put it, were he inclined to boast in this case: "Nobody's ever done that before, Greatest president for impeachments ever. Many people are saying."

Whenever you get a wealth of new data, you should assess it carefully to see if you need to update your views. Some of my hypotheses about presidential impeachment have weathered the Trump storm better than others. For instance, our recent experience provides further evidence that impeachment isn't nearly as destabilizing or dangerous as conventional wisdom has long held. However, the mechanism's manifest failure to discipline an out-of-control president has made me less exuberant than before about impeachment's upside. Two impeachment acquittals in one term should counsel us to not to place too much hope in the Constitution's ultimate remedy as an effective check on abuse of power by rogue presidents.

2. IMPEACHMENT HISTORICALLY: SAFE, LEGAL, AND ALL TOO RARE

   My longtime view - one I'd arrived at well before Trump rose to office (1) - was that we don't impeach presidents enough (2) After all, the Framers described impeachment as an essential check on presidential misconduct. For Hamilton, it was "a bridle in the hands of the legislative body upon the executive servants of the government." (3) Madison called it the "indispensable" provision for "defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate." (4)

   And yet, leading up to the Trump presidency, we'd all but dispensed with it. Over some 230 years of our constitutional history, we'd made only three serious attempts at removing an American president via the impeachment process: Andrew Jackson in 1868, Richard Nixon in 1974 -who was never formally impeached, having quit before the full House could vote - and Bill Clinton in 1998.

   That's roughly one in fifteen presidents at a pace averaging once every seventy-five years. While any member of the House can introduce articles of impeachment, it's vanishingly rare that anyone tries. (5) Historically, three quarters of American presidents never faced more than the theoretical threat of removal. Before the Trump presidency, in our entire constitutional history, only eleven of forty-four presidents had articles formally drawn up against them. (6)

   We've had no shortage of "incapacity, negligence, or perfidy" in the Oval Office. (7) Meanwhile, over the past century, the American presidency has grown vastly more powerful - and more dangerous - than the Framers could have imagined. (8) Given the damage an unfit president can do, the ultimate check on presidential abuse is even more indispensable today.

   And yet, American political culture has long seemed profoundly uncomfortable with the idea of firing the federal chief executive before his term is up. NYU Law's Bob Bauer terms this orientation "Impeachment Anxiety Syndrome," a coinage that, if anything, understates its intensity. (9)

   In 2017, the Oxford English Dictionary ("OED") blog noted the rise of a "curious circumlocution" in the late 1980s: the use of the phrase "I-word" in place of "impeachment." (10) That euphemism, OED's Katherine Connor Martin explains, reflects the fact that "earnest discussion of the possibility of impeachment is still regarded by many politicians and journalists as a bridge too far, putting the speaker in danger of being considered reckless, disloyal, or overly partisan . . . . The momentous impact on the government and the nation of a decision to impeach [is] regarded as extending even to broaching the topic." (11) Well before Trump came on the scene, impeachment had become the Voldemort of constitutional remedies: we dare not speak its name.

   On the rare occasions when presidential impeachment became a live possibility, public discussion was inevitably tinged with suggestions of blasphemy and violence. Normally sober and judicious scholars could be heard comparing it to capital punishment, (12) or a "constitutional nuclear weapon." (13) Pundits and pols were given to conjuring up dark specters of economic turmoil, government paralysis, and possible constitutional collapse.

   I never understood this timorous attitude toward a legitimate constitutional failsafe mechanism, put there for the public's protection. The historical record, while sparse, seemed pretty clear. Presidential impeachment had never done us any real harm. Though partisans of particular presidents insist impeachment "threatens democracy" and liken the process to a "coup," it's a strange coup that replaces one elected official with his hand-picked and also duly elected running mate.

   Nor, for better or worse, does impeachment paralyze government. (14) During the alleged Watergate "nightmare," Congress found time to pass landmark legislation like the Endangered Species Act, the War Powers Resolution, and the Impoundment Control Act. (15)

   And whatever disruption impeachment causes, it's clearly not the kind that spooks investors. The Clinton impeachment, for instance coincided with one of the biggest bull markets in history. (16) Still less does impeachment threaten civic peace. As the constitutional scholar Sanford Levinson has noted, Nixon's resignation even led to "a brief 'Era of Good Feelings,' at least until Gerald Ford pardoned" him. (17)

   Moreover, on at least one occasion, a presidential impeachment drive did the country a lot of good. In the Nixon case, the threat of impeachment drove a corrupt...