By Joshua Matz and Laurence Tribe/TakeCare
Basic Books released today a paperback edition of our latest book, To End A Presidency: The Power of Impeachment. The paperback version includes a new epilogue, from which this post is adapted.
Over the past two years, many of President Donald J. Trump’s critics have suggested that he can be impeached for some of his most alarming statements to senior advisors, on Twitter, and at campaign rallies. For instance, former White House Counsel Bob Bauer has argued that “[a] president who is a demagogue, whose demagoguery defines his style of political leadership, is subject for that reason to impeachment.” It is unappetizing to defend Trump with respect to these issues. But we are exceptionally wary of efforts to characterize Trump’s rhetoric taken in isolation as a “high Crime and Misdemeanor.” And ironically, a pattern of high-level insubordination has helped Trump avoid impeachment territory for demanding that his administration engage in abuse of power.
A Cautionary Note About Impeachment For Abusive And Destructive Statements
On the merits, we agree with Bauer’s warning against Trump’s demagoguery. We would go further and join Michiko Kakutani in concluding that Trump has “exchanged the language of democracy and its ideals for the language of autocracy.” Trump’s anti-constitutional vocabulary reveals itself in his reckless and potentially dangerous verbal assaults on journalists, prosecutors, courts, civil servants, election officials, and racial minorities. This is a man disturbingly comfortable with calling for the abuse of power. He does not hesitate to use his bully pulpit in ways that cause (and invite) tangible harms to our democratic institutions.
However, Trump’s public and private statements alone are not “high Crimes and Misdemeanors.” Concluding otherwise would violate the rule against impeachment for mere maladministration or policy disagreement. It would also create insurmountable line-drawing difficulties and risk chilling presidential speech on matters of public concern. In our view, set forth in Chapter 2 of To End A Presidency, Trump’s public statements can qualify as impeachable only if they were essential to the execution of – or intimately connected to – a broader pattern of conduct that itself justifies impeachment.
This position is consistent with the first article of impeachment that the House Judiciary Committee approved against Richard Nixon on July 27, 1974. It is occasionally suggested that this article proves that presidential lies are impeachable in their own right. That’s because the eighth paragraph of the article accused Nixon of “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States.” But read in context, that paragraph merely described one of nine separately-alleged “means used to implement” the actual impeachable offense: obstructing justice in the Watergate investigation. Nixon’s lies were essential to the execution of that cover-up, and so they were properly included in the article of impeachment.
Thus, even if we treat the Nixon articles as carrying the weight of congressional precedent (and it’s worth recalling that they were never voted on by the House or Senate), they don’t suggest that a pattern of lies is sufficient to justify removal. Rather, they show only that lies in furtherance of a broader plot against democracy may support the case for impeachment. This point is not only true of lies, but also applies to statements that undermine democratic values and institutions.
Insubordination As A Guardrail Against Impeachment
In Trump’s case, the ordinarily-direct path from presidential statement to public policy has been broken. Since taking office, Trump has repeatedly urged the FBI and Justice Department to investigate and prosecute his political opponents, to show leniency to his allies and associates, and to support demonstrably false claims (e.g., that Barack Obama wiretapped him and that Russia never interfered in our elections). Trump has also declared that prosecutors should seek harsh sentences against those who cooperate with Special Counsel Bob Mueller, and has criticized the Attorney General for bringing charges against “two very popular Republican Congressmen . . . just ahead of the Mid-Terms.” In other contexts, Trump has called upon police to rough up suspects during arrests, expressed support for severe restrictions on the free press, and urged regulators to target his political critics.
Indeed, the New Yorker reported Monday that Trump sought to engage in a classic, contemptible abuse of power by wielding federal antitrust authority to harm his perceived political opponents in the news media. These efforts apparently were thwarted by Gary Cohn, who saw the abuse of power for what it was and declined to carry out Trump’s command:
However, in the late summer of 2017, a few months before the Justice Department filed suit, Trump ordered Gary Cohn, then the director of the National Economic Council, to pressure the Justice Department to intervene. According to a well-informed source, Trump called Cohn into the Oval Office along with John Kelly, who had just become the chief of staff, and said in exasperation to Kelly, “I’ve been telling Cohn to get this lawsuit filed and nothing’s happened! I’ve mentioned it fifty times. And nothing’s happened. I want to make sure it’s filed. I want that deal blocked!”
Cohn, a former president of Goldman Sachs, evidently understood that it would be highly improper for a President to use the Justice Department to undermine two of the most powerful companies in the country as punishment for unfavorable news coverage, and as a reward for a competing news organization that boosted him. According to the source, as Cohn walked out of the meeting he told Kelly, “Don’t you fucking dare call the Justice Department. We are not going to do business that way.”
Ultimately, the Department of Justice decided – apparently in the ordinary course – to file an enforcement action to stop AT&T’s acquisition of Time Warner, which owns CNN. And last week, the DC Circuit Court of Appeals ruled against DOJ, upholding a district court decision that allowed the merger to proceed.
In a normal administration, the president’s statements of policy and orders to his subordinates would carry extraordinary (if not decisive) weight. As some scholars delight in pointing out, the president alone possesses “the Executive power” under Article II of the Constitution. But in practice, the so-called “unitary executive” theory has fared poorly as of late. As Jack Goldsmith writes, “What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive. Never has a president been so regularly ignored or contradicted by his own officials.” This tendency, Goldsmith adds, is not confined to low-level bureaucrats or the “deep state:” “I’m talking about senior officials in the Justice Department and the military and intelligence and foreign affairs agencies. And they are not just ignoring or contradicting him in private. They are doing so in public for all the world to see.”
If Trump’s abusive orders to senior officials were actually implemented as policy, they would support multiple articles of impeachment. The widespread practice of ignoring his tweets, statements, and even direct commands – or treating them as merely advisory – has thus saved Trump from potentially dire political consequences.
Under normal circumstances, we wouldn’t celebrate a president’s inability to superintend his own branch of government. But these are hardly “normal” circumstances. All of us, Trump included, should be thankful for this bout of intermittent insubordination.
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Comments welcome.
Posted on March 5, 2019