How Impeachment Works.

• Author: Gerhardt, Michael J.

TABLE OF CONTENTS TABLE OF CONTENTS 743 I. INTRODUCTION 744 II. IS THE IMPEACHMENT PROCESS BROKEN? 745 III. HOW IMPEACHMENT WORKS 748 IV. LAWYERLY MISCONDUCT IN DEFENDING TRUMP 752 V. REFORMING PRESIDENTIAL IMPEACHMENT 760 VI. CONCLUSION: WHERE TO FROM HERE? 766 I. INTRODUCTION

Presidential impeachments test nearly everyone. Whereas constitutional adjudication largely tests the limits and powers of governmental institutions, presidential impeachments do that and more. They test whether and how members of Congress may fulfill their oaths to do "impartial justice according to the laws and Constitution of the United States;" whether, or to what extent, presidents have abused their powers; how well the American public and media understand the stakes and issues involved in the impeachment process; and to what extent Article III courts refrain from reviewing any aspect of impeachment trials. (1) A popular concern for most observers and commentators during the two impeachments of Donald Trump was that these institutions - particularly Congress, the President, and the media - failed the American people and the Constitution.

Why, many people have wondered, should the House of Representatives have bothered not once, but twice, to impeach Donald Trump when there was no realistic chance of securing his conviction in a Senate trial given the likely unanimity of Republicans to vote to acquit? This question led to other questions, such as whether the constitutional threshold for conviction, requiring at least two-thirds of the Senate in favor, was too demanding? Could the House have done a better job in drafting impeachment articles in either impeachment of Donald Trump? Should the focus in either impeachment have been broader or narrower than it was? (2) Was the focus in the first on Trump's negotiations with Ukraine's president and Trump's failures to comply with nearly ten congressional subpoenas too technical for most of the American public to understand or get behind? How should the impeachment process be reformed? Could the media have done a better job of informing or educating the public about impeachment in each case? How well did the lawyers prosecuting and defending Mr. Trump in the two Senate trials perform? Did they go too far and violate the norms and rules of professional responsibility? For many observers of these events, the answer to all these questions is the same--that the federal impeachment process is broken.

This Article rejects the common view of the two Trump impeachments as a constitutional debacle. It asserts, instead, that the federal impeachment process retains significant vitality as a mechanism for holding presidents accountable for misconduct in office. If we take a step back from the tiny set of presidential impeachment trials in American history and adopt a more panoramic view of their effects and connections to other disciplinary mechanisms for presidential misconduct, it is easier to see that presidential impeachments still have bite. In fact, they can and do cripple legacies and reputations, create permanent evidentiary records of presidential misconduct, and deter some, if not the most, egregious kinds of presidential misconduct. In the aftermath of Trump's second impeachment, state officials, too, played instrumental roles in curbing his efforts to undermine the integrity of the electoral process and to commit voter fraud. In this manner, states provided a check on the president's overreaching.

Part II sets forth the surprisingly strong case against impeachment's effectiveness in holding presidents accountable for their misconduct in office, a view that I sometimes have had myself. Nonetheless, Part III both dissects that case and shows how the two impeachments of Donald Trump damaged his legacy, reputation, and power. Public opinion is not an insignificant deterrent of presidential mischief, and the two impeachments of Donald Trump took their toll in his defeat in his reelection bid. Part IV examines the extensive lawyerly misconduct in the two Trump impeachments. Lastly, in Part V, I consider some modest reforms that may help to ensure that presidential impeachment trials are constitutionally meaningful events, even when they result in the acquittal of the president.

2. IS THE IMPEACHMENT PROCESS BROKEN?

   There are many reasons why legal commentators have considered the federal impeachment process to be broken. For these same reasons, I too, have been skeptical of the efficacy of the process, particularly after the two acquittals of Donald Trump.

   Such skepticism is far from unwarranted. After all, no American president has ever been convicted in an impeachment trial. (3) Three presidents - Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2020, 2021) - have been impeached by the House but acquitted in the Senate. (4) The only one of these to come close was Johnson, who fell one vote short of being convicted and removed from office. (5) These outcomes suggest that the constitutional threshold for conviction, requiring at least two-thirds approval in the Senate, may be practically impossible to meet in the case of a president. There was strong evidence in each case of presidential misconduct, with Johnson's obstruction of Reconstruction, Clinton's lying under oath and obstruction of justice, and Trump's both abusing his powers and obstructing Congress in his first impeachment and inciting insurrection in his second.

   True, Richard Nixon faced a serious threat of impeachment and removal after two years of investigations into the Watergate scandal. He resigned shortly after the House Judiciary Committee approved three articles of impeachment, effectively removing the necessity for fully gearing up the impeachment process. (6) Nixon was thus an instance of a forced resignation, something that seems difficult to imagine ever happening again, particularly in light of several developments that make surpassing the constitutional threshold for conviction effectively impossible.

   The first is the rise of extreme partisanship, under which each party's goal has been to vanquish the other and control the levels of government as much as possible. (7) This development was instrumental in ensuring Clinton's acquittal and Trump's two acquittals. In all three cases of impeachment, the respective president's party controlled more than a third of the Senate. (8) With virtually all of each president's partisans united in opposition to convictions, removal was never a serious possibility.

   With neither Clinton nor Trump ever facing a real likelihood of ouster or sanction through impeachment, more pressure was applied to other disciplinary mechanisms, such as criminal prosecution. Ultimately, Clinton pled guilty to perjury and was appropriately sanctioned by federal district judge Susan Webber Wright; Trump has yet to face any concrete legal fallout from the misconduct that was the focus of each of his trials. (9)

   The second development is the rise of the internet and social media, (10) which has largely served as an echo chamber rather than the means for educating the public on matters of civic importance. Such circumstances contrast with the hopes of such framers as James Madison that the public's interest in the intricate system of checks and balances would grow with time. As Madison wrote, "I go on this great republican principle, that the people will have virtue and intelligence to select [people] of virtue and wisdom." (11) Implicit in Madison's argument was the people's disposition to be discerning about who these people "of virtue and wisdom" would be. Instead, the proliferation of partisan news outlets, primarily interested in entertaining rather than educating the public, has made it harder for people to break free of the curated news that they prefer to read or watch. That difficulty, in turn, reinforces the extreme partisanship that keeps people fixed in their niche and facilitates tribalism, in which there is no objectively shared sense of reality and facts are shaped by news sources and political actors rather than the events themselves.

   The third significant development is the constitutional amendment to alter the scheme for selecting senators. The original Constitution had state legislatures choose their respective senators, but the 17th amendment, (12) ratified in 1913, did away with that scheme in favor of having the people of each State vote in statewide Senate elections. While the original purpose of the amendment was to free senators - and their states - from the corrupting influence of state legislatures, the practical effect of the amendment has been to make senators acutely sensitive not to the institutional needs or responsibilities of the Senate, but to popular opinion and support within their respective states.

   A final development impeding the functioning of the federal impeachment process is the popularity of the "unitary theory of the executive" among conservative lawyers and presidents. (13) This theory posits that the president should have control over the exercise of all executive power. It is grounded in reading the text of Article II of the Constitution as investing all "executive power" in the president and in the need for such a theory to ensure the uniform enforcement of federal law. (14) This construction of the scope of presidential power, vested Mr. Trump, in his capacity as president, with the final say over what information produced within the executive branch was covered by executive privilege and therefore could be denied to Congress. Meaning, even in his own impeachment proceedings investigating presidential misconduct, he could control what information Congress could receive. Mr. Trump ordered the entire executive branch not to cooperate with what his White House Counsel characterized as a "partisan" and "unconstitutional" impeachment proceeding. (15) As Mr. Trump declared during the first trial, "[W]e have all the material. They don't have...