Impeachment- a Citizen's Guide

  Praise for Impeachment

  “With insight, wisdom, affection, and concern, Sunstein has written the story of impeachment every citizen needs to know. This is a remarkable, essential book.”

  —Doris Kearns Goodwin, Pulitzer Prize–winning author of Team of Rivals: The Political Genius of Abraham Lincoln

  “Thoroughly grounded in constitutional history and past practice . . . Excellent.”

  —Noah Feldman and Jacob Weisberg, The New York Review of Books

  “Sunstein’s goal was to lay out a legal and historical framework for thinking about impeachment, independent of any specific president. I’ve been thinking about the topic a lot since finishing the book, and I want to recommend [it]. . . . [It’s a] careful history of impeachment—of when the founders believed it was appropriate and necessary.”

  —David Leonhardt, The New York Times

  “Considering that the only executive branch event more unnerving for voters than impeachment is assassination, Sunstein’s book . . . is a surprisingly cheerful read.”

  —Sarah Vowell, The New York Times

  “Sunstein has written a concise, enlightening, and argumentative history and guide to getting rid of presidents. . . . It’s more of a why-to and when-to, and a what-were-they-thinking-when-they-decided-to kind of book. Sunstein delves into the writings, speeches, and deliberations of America’s revolutionary generation.”

  —Carlos Lozada, The Washington Post

  “An elegant new monograph.”

  —Andrew Sullivan, The New York Times Book Review

  “A lively, compact, and authoritative account . . . [Sunstein] addresses the most intriguing questions posed by this little used but pivotal constitutional provision. . . . Truly lives up to its promise of being ‘A Citizen’s Guide’ . . . Excellent.”

  —Stephen Rohde, Los Angeles Review of Books

  “Explains the historical origins of the impeachment concept, and offers a checklist as to when the principle might be applied . . . Now, more than ever, cool heads are needed to safeguard the U.S. Republic: thank goodness for this book—and its handy impeachment checklist.”

  —Gillian Tett, Financial Times

  “Impeachment: A Citizen’s Guide offers edifying background for an argument that might soon be in need of eloquent, as well as passionate, delivery.”

  —Richard Blaustein, Los Angeles Review of Books

  “A compact, concise, and highly relevant civics lesson. There have been a number of books published about impeachment, many of them partisan manifestos. What makes Sunstein’s book of such great interest is its lack of fanfare and knife‐sharpening. The author is a learned and accessible guide as he maneuvers his way through the history of democracy’s nuclear option. . . . A welcome, timely, ideal primer.”

  —Kirkus Reviews

  “The book is a tribute to the Founding Fathers’ wisdom in providing for a remedy in case someone who is vicious, lawless, and unfit should somehow end up in power.”

  —Scott McLemee, Inside Higher Ed

  “Sunstein is well positioned to provide this balanced and timely overview of the role of impeachment in American democracy . . . An essential guide to understanding impeachment’s function within the ‘constitutional system as a whole’ and a persuasive argument that the impeachment clause places ‘the fate of the republic’ in the hands of its citizenry.”

  —Publishers Weekly

  “This slim book is thoroughly researched, easy to read, and for some perhaps a real eye-opener.”

  —Owen Dawson, The Irish Times

  “Offers a highly accessible, brilliantly thoughtful, and politically neutral analysis of what the Constitution means for our present moment and for generations that follow.”

  —Ryan Goodman, Just Security

  “With speculation rife about the possibility of impeaching President Trump, this little book is indeed timely.”

  —Felix M. Larkin, The Irish Catholic

  “Sunstein provides a brief, readable survey of the issue, beginning with early English history and continuing to the present. . . . Sunstein concludes with key questions that every American should consider together with the constitutional standards that would govern it.”

  —W. C. Johnson, Choice

  PENGUIN BOOKS

  IMPEACHMENT

  Cass R. Sunstein is the Robert Walmsley University Professor at Harvard University, where he is founder and director of the Program on Behavioral Economics and Public Policy. He is the most cited law professor in the United States and probably the world. He has served as administrator of the White House Office of Information and Regulatory Affairs and as a member of the President’s Review Group on Intelligence and Communications Technologies. Winner of the 2018 Holberg Prize, Sunstein is a columnist for Bloomberg Opinion and a frequent adviser to governments all over the world. His many books include the bestsellers Nudge: Improving Decisions About Health, Wealth, and Happiness (with Richard H. Thaler) and The World According to Star Wars.

  PENGUIN BOOKS

  An imprint of Penguin Random House LLC

  penguinrandomhouse.com

  First published in the United States of America by Harvard University Press 2017

  Published, in slightly different form, in Penguin Books 2019

  Copyright © 2017, 2019 by Cass R. Sunstein

  Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.

  Published by arrangement with Harvard University Press.

  Library of Congress Control Number: 2019941900

  ISBN 9780143135173 (paperback)

  ISBN 9780525506843 (ebook)

  While the author has made every effort to provide accurate internet addresses and other contact information at the time of publication, neither the publisher nor the author assumes any responsibility for errors or for changes that occur after publication. Further, the publisher does not have any control over and does not assume any responsibility for author or third-party websites or their content.

  Cover design: Nayon Cho

  Version_1

  To all those who fought, and fight, for our beloved country, from 1775 to the present

  I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

  JAMES MADISON

  But even the president of the United States

  Sometimes must have to stand naked

  BOB DYLAN

  CONTENTS

  Praise for Impeachment

  About the Author

  Title Page

  Copyright

  Dedication

  Epigraph

  Preface

  1: Majesty and Mystery

  2: From King to President

  3: “Shal
l Any Man Be Above Justice?”

  4: What We the People Heard

  5: Interpreting the Constitution: An Interlude

  6: Impeachment, American-Style

  7: Twenty-One Cases

  8: The Twenty-Fifth Amendment

  9: What Every American Should Know

  10: Keeping the Republic

  Afterword

  Executive Summaries and Excerpts from the Report on the Investigation into Russian Interference in the 2016 Presidential Election

  Bibliographical Note

  Acknowledgments

  Notes

  Index

  PREFACE

  Should President Donald Trump be impeached?

  Of course he should be. He and his campaign cooperated with Russia to obtain the presidency. When his own Department of Justice decided to investigate Russia’s horrifying role, he tried desperately to derail the investigation. He obstructed justice not once but ten times. He committed egregious crimes in an effort to fend off an inquiry into an unfriendly nation’s successful attack on our democracy—and into his own criminal behavior.

  Alternatively: Of course he shouldn’t be. The very question is ridiculous. President Trump didn’t work with Russia at all. There was no collusion or conspiracy of any kind. Nor did he commit any crime. On the contrary, he exercised his constitutional authority. He expressed perfectly reasonable objections to a pointless, baseless, politically motivated investigation, designed to undo a legitimate presidential election. He defended himself vigorously. That’s hardly impeachable.

  This book does not choose between these two views. It does not say whether President Donald Trump should be impeached. It is designed to answer more enduring questions, including: Why does the U.S. Constitution include an impeachment mechanism? What’s a “high crime or misdemeanor”? How does impeachment work? Is impeachment a question of law or politics? What was the American Revolution all about? Why were people willing to give their lives for it? What was the “shot heard round the world”? What is American exceptionalism, anyway?

  For those who are focused on President Trump or on any particular president, answers to these questions are essential. It is alarming—maybe inevitable, but still alarming—that many people use a simple rule of thumb to answer questions about impeachment: Do I like the president in question? If the answer is “yes” or “mostly,” or even “kind of,” they tend to think that impeachment is a terrible idea—whatever the law and whatever the facts. If the answer is “definitely not,” they will be open to the idea of impeachment. They might even welcome it.

  One of my main goals here is to show that once we move beyond that unhelpful rule of thumb and get clarity on impeachment, we will find something much better and even inspiring. Impeachment is a window onto the whole enterprise of self-government and the American commitment to the fundamental equality of human beings. There is an intimate relationship between the impeachment mechanism and the Declaration of Independence, the system of checks and balances, the right to freedom of speech, the right to a jury trial, the right to private property, and the right to free exercise of religion. There is an even more intimate relationship between the impeachment mechanism and the most important words of the U.S. Constitution, which launch the document: “We the People.”

  Oh, and I’m going to have a few words to say about President Trump. But you’re going to have to wait.

  chapter 1

  Majesty and Mystery

  It’s an old story, and it’s probably even true. When the authors of the new American Constitution declared, after their months of work in Philadelphia, that they had finally reached consensus, one Mrs. Powel shouted a question to the revered Benjamin Franklin, then eighty-one years old: “Dr. Franklin, what have you given us—a monarchy or a republic?” He gave this answer: “A republic, if you can keep it.”1

  With those words, Franklin deflected the thrust of the question. True, he didn’t refuse to answer: “a republic,” he said, and not a monarchy. But in his view, the question wasn’t what the framers, a band of good and great men, had given to the American people. The Constitution is not a gift. The question was what We the People would do with the framework that the framers had produced.

  The real agents, the most important actors in the nation’s history, were, and are, the “you.” You have a task, which is to keep it. And what you are to keep is a republic, which is what the American Revolution was fought to establish, and which is opposed to what the colonies fought against: a monarchy, headed by a king, who could not be removed from office, and who could rule as a tyrant. From the Declaration of Independence: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

  Just a few decades before he spoke, Franklin’s words would have been unfathomably radical. But he captured the spirit of his age. Here’s Alexander Hamilton, writing in the very first of the Federalist papers, which defended the American Constitution to a nation that was sharply divided on whether to ratify it. Hamilton sounded a lot like Franklin, though much more grave:

  It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.2

  Franklin, Hamilton, and their colleagues thought a lot about impeachment. In their view, the power to impeach was central to the establishment of “good government from reflection and choice.” Without the power to impeach, We the People would probably have refused to ratify the Constitution in the first place. Impeachment lay at the core of the founders’ intricate and majestic effort to balance the defining republican commitments to liberty, equality, and self-rule with the belief in a strong, energetic national government. They achieved that balance with diverse features of the Constitution, including a four-year term for the president, electoral control, the separation of powers, and a system of individual rights. It is ironic that impeachment, regarded in 1787 as an essential component of the balance, is now little understood by “the people of this country.”

  As Exhibit 1, consider the 1970 pronouncement by Gerald Ford, then a member of Congress and later President of the United States, that an impeachable offense “is whatever a majority of the House” believes it “to be at a given moment in history.”3 As Exhibit 2, consider the 2017 claim by Nancy Pelosi, then the House minority leader and former Speaker of the House, that a president cannot be impeached unless he has broken the law.4 As we will see, both Ford and Pelosi got it fundamentally wrong. Their views make a mockery of the constitutional design. They are also anti-republican.

  In American history, three presidents have been subject to serious impeachment proceedings: Andrew Johnson, Richard Nixon, and Bill Clinton. During the impeachment process against Nixon, I was in my late teens. In a way, the controversy was inspiring. We the People were rising up against a president who had apparently done awful things. But I liked Nixon, and I didn’t much like the Democrats, and I was torn. Riveted by the national debates, I wondered: Are people trying to impeach Nixon because they hate him and his policies, or because he actually did something terribly wrong?

  Like many millions of Americans, I also wondered: What is impeachment all about, anyway? The very word was unfamiliar and seemed like a kind of relic, something from a bygone age. The nation (and Nixon himself) received an unforgettable civics lesson back then in the 1970s, but I’m not sure that we g
ot a full answer to either question.

  When I decided to go to law school a few years later, I can’t say that I was motivated by the Nixon proceedings, but they certainly helped to inspire my interest in our constitutional system. Like many others in my law school class, I was certain that some courses would be focused on the intriguing questions raised by Nixon’s resignation. Above all: What were the framers doing with the impeachment provision? What are high crimes and misdemeanors? But no class spent as much as a single minute on impeachment. It was as if the whole topic was irrelevant—part of history’s dustbin, a tiny footnote to the real issues in constitutional law. Sure, we talked about the power of the president, about when he could make war, about what he could do on his own, about when he needed Congress, about how courts control him.

  But how can you get rid of him, if he screws up, or worse?

  As a young law professor in the 1980s, I became a coauthor of a constitutional law casebook, one of those massive, supposedly comprehensive tomes. It consisted of more than 1,500 densely packed pages. In the early drafts of the first edition, our book had nothing on impeachment—not a page, not even a paragraph. I was personally responsible for that section of the book, so the negligence was all mine. As a kind of formality, I added a short discussion, about two pages, just to cover the bases. In my courses, I spent no time on impeachment; it seemed too remote from what law students would be doing in their careers.

  When the Clinton impeachment proceedings heated up in the 1990s, there was a sudden demand for the views of law professors. For many of us, phone calls came from newspapers, radio and television stations, Congress, even the White House itself. The Nixon controversy had become ancient history, and to those who remembered what Nixon had done, Clinton’s behavior seemed a lot less horrible. But Clinton might have lied under oath and obstructed justice, and thus committed real crimes. Above all, people wanted to know whether the constitutional standards for impeachment were met.