Foreword: Requiem for Impeachment?

• Author: Bowman, Frank O.

Impeachment was inserted into the Constitution of the United States as a tool of national self-preservation. Although its most common use has been as a quotidian house-cleaning device for dispensing with corrupt or egregiously unsuitable federal judges otherwise unfireable due to life tenure, the American framers conceived impeachment's real and essential function to be the ejection and permanent electoral disqualification of any president who proved grievously unfit or exhibited a dangerous disposition to autocracy.

This symposium was convened under the somewhat anodyne title, "The Two Impeachments of Donald J. Trump." But the central problem at the heart of our discussion is that, when confronted with a president who proved himself grossly unsuitable by temperament, capacity, and conduct for his office, who consistently abused its powers for personal and political gain, and who, at the last, overtly sought the overthrow of constitutional order, Congress flinched. Not once, but twice. In short, impeachment failed to accomplish the principal thing it was put in the Constitution to do.

At this point, a reader of an insistently non-partisan temper might contend that I am assuming a constitutional conclusion for which I ought to offer proof--to wit, that Donald Trump was factually guilty of "high Crimes and Misdemeanors" and ought to have been convicted, twice, by the United States Senate. To which hypothetical interlocutor I would have two responses:

First, I have laid out the case for convicting former President Trump in both of his impeachments at length in other venues, and I invite the curious reader to survey my reasons at leisure. (1) Second, given the undisputed facts of both cases, I have no patience with anyone who would now argue that Donald Trump ought not to have been convicted, excluded from the presidency, and disqualified from any future office of honor or profit under the government of the United States. Not only did Mr. Trump employ the powers of the chief magistracy to extort personal political favors from an ally in peril of losing its national existence to a state long hostile to America itself, he then schemed for months to nullify the results of a properly-conducted national election he lost in order to make himself, literally, an unelected autocrat. Those are not tendentious partisan allegations. They are facts, indisputable by any candid mind. (2)

When all but one of the senators of his own party ignored the plain facts of the first impeachment case against President Trump, they opened the door to his entirely predictable effort at sedition following the 2020 election, of which the assault on the United States Capitol was only a dramatic, if tragic, incident. Given a second chance, all but seven senators of his own party ignored not merely President Trump's prolonged, overt, and unapologetic plot to subvert democracy, but an actual invasion of their own workplace that sent them fleeing for their lives. (3) The "not guilty" senators of the second impeachment tacitly (and in some cases explicitly) condoned Trump's behavior; they lent credence to the insidious lie that the 2020 election had been "stolen," thereby abetting the deeply corrosive campaign (ongoing to this day) to impugn the integrity of the American electoral system; and they left open the possibility that Donald Trump could again assume the presidency, an event American constitutional democracy would be unlikely to survive. (4)

At the time of his second impeachment, I wrote of Donald Trump that he was the demagogue for whom the Framers inserted impeachment into the constitution, and "the man against whom the founding generation armed the constitution with the disqualification clause." (5) Yet, even when wielded - precisely as the Framers intended - against the personification of the Framers' nightmares, impeachment failed.

The question is why. And what it means for our constitutional future.

What we have witnessed since Donald Trump gained the White House is a modern iteration of the ancient struggle that gave rise to the impeachment mechanism in Britain. The original contest pitted royalism - the rule of the one - against the emergent ideas of a dispersion of power among multiple centers of authority and of the supremacy of law. Impeachment was invented in 1376 to give the English Parliament a weapon to counter the monarchy's will to absolute power. It played a central role in the 1600s, the era of the Stuart kings--whose theory of kingship was that the source of all law was the royal will. Lawyers and judges in Parliament (notably Sir Edward Coke) insisted to the contrary that the sources of law are reason and nature as expounded by judges, and the positive enactments of the legislature. When James I, and later his son Charles, insisted too stridently on royal absolutism, Parliament impeached the ministers who were the agents of that policy. When impeachments proved insufficient to dissuade Charles of his divine right to personal rule, Civil War followed, Charles knelt beneath the headsman's axe, and Cromwell's kingless Commonwealth arose. (6)

America's founders wanted no kings. They crafted a constitutional government with Congress at its center. They created the office of president, but expected it to be relatively weak and naturally subordinate to the legislature. However, they were wise enough to recognize that the presidency might swell beyond their original conception and that, in any case, a corrupt or demagogic president might arise and endanger constitutional order. Therefore, they created an array of constraints on presidential power. These were of two kinds: First, the institutional controls of our tripartite government and its checks and balances, and second, two mechanisms for presidential removal--elections as periodic popular judgments on presidential performance and impeachment for the rare case of grievous misconduct or a grasp for dictatorship.

The Framers' impeachment is a curious construction. They defined the category of impeachable conduct broadly but limited the punishments narrowly--to mere removal and potential future disqualification. That should have made conviction easy. But they also imposed a two-thirds majority requirement in the Senate, which in practice raised a towering barrier to conviction, at least of presidents. (7)

In over two centuries of American history, only three presidents -Andrew Johnson, Bill Clinton, and Donald Trump - have ever been impeached, and not one has been convicted. That record of apparent impotence has led some to suggest that the impeachment mechanism written into the constitution was doomed from the start as a practical remedy for presidential misbehavior.

I think that overstates the case. For most of our history, impeachment, or the latent threat of its use, served a salutary restraining function. Only in the peculiar circumstances of our present era - to which we will return momentarily - has it become a hollow threat.

It is true that, even at the Republic's beginning, presidential impeachment was a less efficacious tool than the Framers likely intended. The Framers' textual hurdle of a two-thirds vote to convict in the Senate very early combined with the emergence of a strong national two-party system in which members of Congress allied with presidents of their own party to make conviction of a president very difficult.

It is often noted that many of the constitution's drafters distrusted parties and party politics - which they were wont to disparage as the vice of "faction" - and hoped that national parties would not form or at least would not feature largely in national government. Of course, it is equally often observed that, within a handful of years after ratification, the Framers were nearly all neck-deep in party politics. Even so, the separation of powers design of the constitution rested in part on the prediction that, regardless of party affiliation, officers in each of the three branches would be jealous of the institutional prerogatives of their own branch and would therefore hasten to check overly exuberant assertions of authority by representatives of the other branches. Congress, in particular, was thought by the founding generation to be the naturally dominant institution, with the president as a dependent partner. The two-thirds rule for impeachment is a manifestation of concern that presidents not become mere creatures of the legislature, readily cowed by the threat of easy impeachment and removal.

However, the anticipated inter-branch power dynamic was long ago reversed, with presidents assuming both the mantle of national party leadership and ever-growing practical powers largely independent of Congress. This development made successful impeachment less likely. Presidential aspirants are unlikely be elected if the national balance of political forces is such that in the same election, or even in the ensuing midterm...