Gene Healy
For a hot moment last week, it looked like impeachment season all over again. First, Rep. Alexandria Ocasio-Cortez (D‑NY) kicked off a fight with President Trump, tweeting that bombing Iran without congressional authorization was “absolutely and clearly grounds for impeachment.” On Wednesday, Trump blasted back Trumpishly, in an invective-filled Truth Social post—“Stupid AOC,” etc.—that, after some meandering, finally threw down the gauntlet: “try Impeaching me again, MAKE MY DAY!” Meanwhile, perennial impeachment enthusiast Rep. Al Green (D‑TX) moved to impeach the president on a hodgepodge of charges, including “ignoring the separation of powers, [and] flouting of orders of United States Federal Courts.”
But the moment fizzled out almost as soon as it started: Green’s resolution was blocked on a 344–79 vote, with a majority of House Democrats joining all Republicans to quash it. “There is not an appetite with leadership to go through this,” groused Rep. Shri Thanadar (D‑MI), who’d tabled his own impeachment resolution due to blowback from colleagues.
I always perk up when impeachment talk is in the air. It has long seemed to me that we don’t impeach presidents enough. Still, I can understand the Democrats’ lack of appetite here. As I explain below, Trump’s two impeachment acquittals in his first term give us reason to worry that James Madison’s “indispensable remedy” has been rendered wholly ineffectual.
To be sure, if you’re looking for potentially impeachable offenses, Trump 2.0 provides a target-rich environment. In a recent column, the New York Times’ Thomas Edsall asked a passel of constitutional scholars for their top picks. They offer multiple grounds, including “impoundment of funds”; “violating the Fifth Amendment’s guarantee of due process” in his deportation drive; and flouting the Emoluments Clause with cryptocurrency profiteering.
I’ve got a list of my own, and abuse of war powers is at the top. AOC is right here: waging war without legal authority is an impeachable offense, if anything is. At the Constitutional Convention, Virginia’s Edmund Randolph insisted on “the propriety of impeachments” because “the Executive will have great opportunitys of abusing his power; particularly in time of war.” The very first federal impeachment case, in 1797, charged Tennessee Senator William Blount with plotting to launch an illegal “military hostile expedition” against Spanish territory. In the Founding era, usurpation of the war power was considered serious enough to merit the ultimate constitutional remedy.
True, plenty of presidents since have committed that offense, and we’ve never managed to impeach one for it. Still, “those other guys got away with it” won’t get you out of a speeding ticket; why should it excuse a president’s illegal warmaking? As Randolph put it, “Guilt wherever found ought to be punished.”
I’d add Trump’s “revenge directives” to the list. That’s the flurry of executive orders penalizing “so-called ‘Big Law’ firms that engage in conduct detrimental to critical American interests”—for which, read: “Trump’s interests.” The targets are firms that represented people suing him, pursued political causes he doesn’t like, or just hired people he had a beef with, like former special counsel Robert Mueller and anyone who worked for him.
The orders operate like bills of attainder, revoking security clearances and coercing the firms’ clients to end their engagement or risk cancellation of federal contracts in an effort to dry up the firms’ business as punishment for getting crosswise with the president.
Richard Nixon had an “enemies list,” too—but he didn’t publish it. Trump’s “revenge directives” read like the infamous August 1971 Nixon administration memo on how to “use the available federal machinery to screw our political enemies,” if you stripped “CONFIDENTIAL” off the top and printed it up in the Federal Register as an executive order under the heading “Screwing Our Political Enemies.” They’re brazen and more than adequate grounds for an impeachment charge.
And yet, I have to wonder about Edsall’s headline: “Could the Third Time Be the Charm on Impeachment and Removal?” Is it a deliberate nod to Bettridge’s Law, viz.: “Any headline that ends in a question mark can be answered by the word ‘no’”? If not, it calls to mind that viral tweet:
After all, in his first term, President Trump was impeached twice, the second time for provoking a riot while trying to intimidate Congress and his own vice president into overturning the results of an election he lost. Not only did Trump wriggle his way out of conviction in two Senate trials, but he also went on to win the presidency again. If we’re evaluating impeachment’s utility as a constitutional safeguard, we have to factor that in.
Going into the first Trump presidency, my view was that presidential impeachments were safe, legal, and all too rare. Given all the crooks and clowns we’d been saddled with over our constitutional history, it seemed pathetic we’d only made three serious attempts at removing one. The few times we tried had never done us any real harm, and, in the Nixon case, forced the resignation of a lawless president and ushered in a wave of executive-power reform. Even when the Senate failed to convict—as in the Johnson and Clinton cases—impeachment served as constitutional censure by leaving a black mark on their legacies. It made sense to imagine that the threat of that black mark could restrain bad behavior by future presidents.
Then Donald Trump came along and, in a land-speed record, got himself impeached twice in the space of two years—effectively doubling the number of presidential impeachments.
What we’ve learned from Trump’s two acquittals hasn’t caused me to revise my views completely. For one thing, once again, the usual scaremongering about impeachment turned out to be overblown.
But, as I explained at much greater length in a 2022 article for the University of Missouri law school’s Impeachment Symposium, I’m now less bullish about impeachment’s upside under conditions of mass polarization. Trump’s two acquittals dramatically weakened the precedent set in the Nixon case. Congress wheeled the “100-ton gun” into position twice in the space of two years, and both times, when they lit the fuse, out popped a little cartoon flag reading “bang.” Impeachment lost its effectiveness as constitutional censure; no black mark any longer, on the campaign trail, Trump brandished his impeachments like battle scars, proof that “he fights.”
Even after Bill Clinton’s party-line acquittal in 1999, Jonathan Rauch observed, “it was still possible to assume that a truly high crime or misdemeanor would result in conviction.” Trump blew up that assumption with what amounts to an informal constitutional amendment:
“No president shall be removed from office for treason, bribery, or any other crime or misdemeanor, no matter how high, should a partisan minority of the Senate choose to protect him.”
Worse still, it isn’t only impeachment that’s broken. Joe Biden’s autopen presidency showed that the 25th Amendment—the other constitutional means of ejecting an unfit president—is a dead letter, too. In the last five years, we’ve pressure-tested both fail-safe mechanisms, and both failed.
Unfit presidents have become all but impossible to remove, even as the American presidency has grown more powerful and dangerous than the Framers could have imagined.
Still, making presidents easier to fire is only one way to tackle our fundamental problem; the other is to shrink the job.
We don’t lack for smart legislative proposals that would rein in presidential power. Congress could fix the National Emergencies Act so that presidentially declared emergencies expire without approval. It could pass framework statutes like those offered by Senators Rand Paul (R‑KY) and Mike Lee (R‑UT), mandating congressional approval for trade restrictions. And as Lee, along with Senators Bernie Sanders (I‑VT) and Chris Murphy (D‑CT), proposed in 2021, Congress could give the War Powers Resolution real bite by linking it to the power of the purse, automatically cutting off funds for unauthorized military adventures.
De-imperializing the presidency is legislatively possible but politically hard. It will take a reform effort on the scale of the post-Watergate Congresses. That seems unthinkable now, yet, as Jack Goldsmith wrote recently,
the consequential 1970s post-Vietnam, post-Watergate reforms of the presidency were unfathomable just a few years before they occurred. A reckoning after Trump 2.0 — or after the retaliation it provokes — could mirror the 1970s moment and offer a chance to constrain the presidency and to restore congressional primacy.
It’s always good to remind presidents that they serve at our pleasure and—like most other Americans—can be fired when they misbehave. It would be even better to radically reduce the powers of the office and limit the harm the next unfit president can do.