Is Presidential Impeachment Like a Coup?

Is Presidential Impeachment Like a Coup?

KEITH E. WHITTINGTON*

ABSTRACT

It is not uncommon for supporters of a president threatened with impeach-

ment to denounce the proceedings as a kind of coup. There are obvious differen-

ces between an impeachment conducted in accord with the terms of a

constitution and a lawless military coup, and yet such rhetoric might raise a

real claim that the congressional impeachment power, at least relative to an

elected president, has fallen into a kind of obsolescence and can no longer be

legitimately used. Such constitutional features of indirect democracy as the

power of presidential electors to choose a president have fallen into practical

illegitimacy despite their continued formal existence as part of the American

constitutional scheme. It might be argued that presidential impeachments have

fallen into the same status. Moreover, there might well be some particular cir-

cumstances in which critics are justif‌ied in charging that Congress is attempting

to overturn the election results through the abuse of the impeachment power.

But consideration of the distinctive features of the constitutional impeachment

power should reassure us that in most circumstances the use of the constitu-

tional power to remove a president by congressional action would not be com-

parable to a coup.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670

I. THE NON-POLICYMAKING ROLES OF ELECTED ASSEMBLIES . . . . . . . 672

II. THE IMPEACHMENT POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677

A. Charges and Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 679

B. Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 682

C. Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685

D. Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 688

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690

* William Nelson Cromwell Professor of Politics, Princeton University. I thank the participants in

the symposium for their helpful comments, particularly Ilya Somin and Alex Guerrero. © 2021, Keith E.

Whittington.

669

INTRODUCTION

The U.S. Constitution was drafted to incorporate various mechanisms of politi-

cal accountability that are only indirectly democratic, the most prominent at the

moment being the impeachment clause and the ability of electorally accountable

legislators to remove an elected president. As American political culture has sub-

sequently democratized, that has left the status of these provisions unclear. Are

such constitutional features obsolescent and of dubious legitimacy, or are they

justif‌iable within a modern constitutional democracy?

More pointedly, is a presidential impeachment like a coup? It has become

something of a talking point among defenders of President Donald Trump that

his impeachment by a Democratic majority in the U.S. House of Representatives

would be somehow illegitimate. The president himself took the lead in offering

this framing, declaring in a tweet that “what is taking place is not an impeachment,

it is a COUP.”

1

That rhetoric soon made its way into presidential campaign ads.

2

Presidential conf‌idante and Fox News anchor Sean Hannity informed his viewers that

he would no longer refer to the impeachment inquiry as a “political witch hunt” but

rather, as an “attempted coup of a duly elected president.”

3

Trump’s supporters have

insisted that this is not “hyperbole” but an accurate description of the actions of the

“deep state” in attempting to oust an elected president.

4

Indeed, the president’s strong-

est supporters derided the “slow-motion coup d’e

´tat” that they thought Trump had

been facing since the beginning of his presidency.

5

The Trump administration is not the f‌irst to reach for this rhetoric. President

Bill Clinton’s supporters likewise denounced their Republican foes for pursuing a

“coup.” Dick Morris, Clinton’s former campaign advisor, declared, “If the

American people continue to believe that Clinton should stay in off‌ice, Congress

must not – must dare not – remove him. This would be a coup d’e

´tat.”

6

The politi-

cal columnist Robert J. Samuelson warned that “what is at issue is overturning an

election” and thought we should face up to the fact that it would not be “inf‌lam-

matory and offensive” to simply call the impeachment effort an attempted

“coup.”

7

Democratic Representative Jerry Nadler labelled Clinton’s impeach-

ment “a thinly veiled coup d’e

´tat.”

8

Harvard law professor Alan Dershowitz

1. Donald Trump (@realdonaldtrump), TWITTER (Oct. 1, 2019, 7:41 PM), https://twitter.com/

realdonaldtrump/status/1179179573541511176?lang=en.

2. Davey Alba & Nick Corasanti, False Claims of a “Coup,” Shared by Trump, NEW YORK TIMES

(Oct. 3, 2019).

3. Eliza Relman, Sean Hannity Slams Impeachment Inquiry as a “Compulsive, Psychotic Witch

Hunt” and Falsely Calls It an “Attempted Coup,” BUSINESS INSIDER (Oct. 9, 2019).

4. Victor Davis Hanson, Suddenly the “Coup” Concerns Don’t Seem So Far-Fetched, MERCURY

NEWS (Nov. 22, 2019).

5. James Downton, We are Watching a Slow-Motion Coup D’etat, THE FEDERALIST (May 19, 2017) https://

thefederalist.com/2017/05/19/watching-slow-motion-coup-detat/ [https://perma.cc/8HSY-AEWT].

6. Dick Morris, Let the Punishment ($4.5M) Fit the Crime, THE HILL (Sep. 23, 1998).

7. Robert J. Samuelson, Why Clinton Should Stay, WASH. POST (Sep. 24, 1998).

8. Philip J. Trounstine, Deep Partisan Chasm over What’s at Stake, SAN JOSE MERCURY NEWS (Dec.

9, 1998).

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