Thursday, October 3, 2019


Note on January 14th, 2021: this essay was written before the first impeachment of D. J. Trump.

There are exceptional occasions when a rare event occurs. Sometimes we are surprised, sometimes bewildered. The rarity of such an event can even make us doubt of its possibility, even when all evidence is there: A Black Swan, an Albino Tiger, an Aurora Borealis. In society we take for granted one of the rarest and marvelous of phenomena: Democracy. Modern democracy, as we know it and aspire it to be, is a Grand Experiment in governance that has been in use by a small fraction of humanity during a brief period of history and, as such, is a rare and fragile institution.

Within the institutional democracy of the U.S. rare events threatening it also occur but the Constitution allows remedies that have made it stronger. The Amendment process is conceived as a defense of democracy, allowing for changes that strengthen the Union. Only seventeen have been ratified since the Constitutional Convention of 1787 (The first ten, the Bill of Rights, were ratified simultaneously with the Constitution in 1789). Impeachment, another rare remedy, was conceived also by the framers as a defense of the Constitution and the democratic republic. The rarity of impeachment makes it uncharted every time it occurs and, in the 230 years from 1789, each time it has been part of a transformative cycle for the Union—especially in the case of a presidential impeachment.

There have been nineteen House of Representative impeachments that have reached the Senate floor for a trial. Of these, two were votes to impeach presidents: President Andrew Johnson (1868) and President Bill Clinton (1998). The rest of them were fourteen Federal Judges, one Senator, one Justice, and one Cabinet Officer. While articles of impeachment were drawn for President Nixon at the end of July 1974 by the Judiciary Committee these were never voted upon by the full House, as his resignation two weeks later on August 9th effectively put an end to the process. Of all nineteen impeachments trials, eight have resulted in convictions, three ended with the resignation of the accused officer, one was dismissed after expelling the Senator from the Senate, and seven resulted in acquittal, including Presidents Johnson and Clinton.

Presidential Impeachments

The core of the charge against President Johnson was for violating the “Tenure of Office” Act [1]. Notwithstanding the actual charges detailed in the articles of impeachment [2], the animus to impeach President Johnson was largely driven by the President's Reconstruction policies. Johnson went against the reasons and results of the Civil War, pardoned and restored property to former slave owners and mostly gave the Southern states a free hand in governing as they saw fit, resulting in the so-called "Black Codes": separate laws for Blacks and Whites.

The ideological divide between pro-slavery supporters and abolitionists brought upon the country the Civil War, the deadliest American war in history [3]. To heal democracy after such a catastrophic event the spectacle of the blood spilt was not enough. After the war, President Johnson’s administration tried to once again impose inequality upon the freemen, making efforts to restore the superiority of the slave owner class to its former (narcissistic) glory. These policies and laws supported by Johnson led to his impeachment as part of the healing process to excise this political poison from the system. 

The House voted to impeach President Johnson on February 24th 1868, the Senate started trial on March 5th and on May 16th the final vote was held acquitting the President, a three and a bit month process. President Johnson was acquitted by a single vote (35 votes for conviction, 19 for acquittal, one short of two thirds). In spite of the opposition party having more than enough seats in the majority to convict, seven of them voted to acquit in order to “protect the office of president and preserve the constitutional balance of powers.” As one of them said later: “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President.”  

The process against Johnson and the constitutional questions arising from it gave the final push needed to ratify the XIVth and XVth Amendments, that other rare remedy to salvage the ideals embedded in the Constitution. These amendments, along with the XIIIth, are the so-called "Reconstruction Amendments" abolishing slavery and establishing equal protection, citizenship and voting rights, regardless of race. The initial push for them was the infamous Scott v Sanford decision of 1857, by which the Supreme Court interpreted the Constitution did not grant citizenship to black people, whether slaves, former slaves or never slaves [4]. The two latter amendments were ratified towards the end of Johnson's first term (1868 and 1870; the XIIIth was ratified in 1865). Andrew Johnson did not run for reelection and is generally considered to have been one of the worst presidents in the history of the United States.

During his second term, President Clinton was charged with lying under oath to a Grand Jury and with obstruction of Justice, both charges related to his attempt to deny, hide and minimize a sexual affair with Monica Lewinsky, a White House intern at the time. The affair had been uncovered by Independent Counsel Kenneth Starr who had a wide latitude and budget to investigate the president and all of his actions and behaviors prior to and during the presidency. The inquiry was started on October 8th  and the vote to impeach was held on December 19th, 1998. The Senate trial began January 25th and the final Senate vote acquitting the President was held on February 9th, 1999, approximately four months for the process. President Clinton was acquitted on both charges, on the first article by a 55 for acquittal to 45 for conviction vote (including 10 Republicans) and on the second article by a 50 to 50 vote.  At the time, the Republican Party held a majority in the Senate, 55 (R) to 45 (D) seats. President Clinton was subsequently disbarred and he and his wife, Hillary, have lived the political consequences of his impeachment and trial to this day.

Having impeachment as an extraordinary remedy option is a problem in and of itself. The existence of the threat of impeachment is a commonly brandished political tool [5]. It is significant that in both historical instances of presidential impeachment trials, the opposition party held the majority in the House and the Senate. If President Nixon had stood trial, the opposition also had a majority of the Senate at the time, but not enough to convict. Only after Senate Republican elders met with the president to let him know that a large fraction of their caucus would not support him did Nixon resign to avoid a public spectacle of his crimes, misdeeds and abuses—and disgrace by conviction.

Those three instances highlight the political nature of this remedy. Only when Congress had an opposition party majority did the process occur, and even then it resulted in acquittal or stopped short of a trial. The actual removal from office and disqualification to further hold high office of a sitting president may be as rare as a snowstorm in South Florida. Calls for impeachment, though, are routine and most presidents have heard them, perhaps sometimes influencing policy and political decisions.

Separation of Powers: Essential in Democracy

Speaker Nancy Pelosi is right on this: policy disagreements on immigration, gun-control, taxation, climate, health care, trade and judge selection, among others, are not impeachable offenses and should be taken up at the ballot box. Petty lying and bluster is not impeachable. But abuse of power is, as are obstruction of justice, corruption and subversion of national security [6]. Congress is almost constitutionally bound to bring articles of impeachment on these grounds, if found credible through the inquiry, to keep itself as a viable separate branch of government and not become a presidential partisan rubber stamp of this and future administrations. Given the facts and documentation at hand in the case of Donald Trump, the House of Representatives has been left with little choice: it must open an impeachment inquiry. It will also likely do its prescribed duty to defend the Constitution and vote to impeach. The impeachment threat as a political tool does not lead to better policy making, it leads to polarization; that is why the impeachment process as a constitutional remedy is such a grave matter. 

Defending the Constitution and its core principle of separation of powers is the only way to ensure the continuation of democracy and stop absolutism. Over the last three years, an increased pattern of behavior, actions and orders by the executive branch (and glossed over by an increasingly compliant Congress and Judiciary) has undermined the accountability achieved by the separation of powers and established dangerous precedent. Voters in 2018 did not take this lightly, passed judgment on such behavior, actions and orders, and voiced through the ballot box their opposition to administration policies which are trying to undo years of bipartisan progress.

What will happen in the Senate is anyone’s guess at this point. Of the incumbent Republican Senators running for office in 2020, several primary candidate filing deadlines come up in November and December, and many more in early March. The threat of a primary challenge is one used against many congressmen, but the timeline for a possible trial that goes past the filing deadlines will free many of the Senators from that threat. At that point their political survival may rest on whether they want to link themselves or not with an impeached president whose dirty laundry is aired on trial. As the impeachment processes of presidents Johnson, Nixon and Clinton demonstrated, the political damage to the impeached and his or her allies is substantial and will last for a long time, even if acquitted or never tried.

As political strategy, to use an impeachment timeline to their advantage, Democrats will (or should) carefully craft precise articles of impeachment and vote for them after the winter recess, possibly even late January. Conversely, for the Trump Republicans, the quicker the process unfolds the better, hoping for poorly drafted partisan articles of impeachment that will allow them to summarily dismiss the charges by a simple majority vote in December or earlier, threatening primary challenges to those on the fence who may not toe the (Trump) party line. As the two previous impeachment trials and Nixon’s case have shown, party allegiance is not necessarily an indicator of the final vote, but each situation has been different. As Trump is fond of saying (and could probably be the title of an autobiographical book he will not write a word of): We’ll See What Happens.

Urgent Need for a Structural Systemic Remedy

After 230 years of Constitutional rule and 150 years since the Johnson impeachment, there must be something wrong with a democracy that attempts to impeach its president twice in twenty years. There is a national divide that makes this political solution seem more available now that it had been in the previous 200 years. The impeachment remedy is a symptom of something deeper, which makes us turn our insights once again towards that core constitutional principle: representation.

A recent analysis (by M. Geruso et al at the National Bureau of Economic Research, NBER) on elections from 1836 to 2016 and reported by Stephen L. Carter in Bloomberg) demonstrates that the probability of an “inversion” – an election resulting in the winner of the popular vote losing in the Electoral College – is 65% in a close election, two out of three of those elections; and all polling shows us how closely divided is the general electorate. When we further observe that in the elections for the last 10 congresses, most of these have resulted in a disproportionate majority of representatives being elected by a minority of voters [7], it is no wonder that the Electoral College and Gerrymandering have resulted in increased political polarization and divisiveness within the political dialogue of the country.

The case of Andrew Johnson’s impeachment shows that the healing was not only in the exorcising of the demons which he manifested in speech, laws and policy to perpetuate the hateful rhetoric of slavery and racism. The other Constitutional remedy, amending, was also necessary. In order to obtain better results from the Grand Experiment, it is time for the political manipulation of “Swing States” and Gerrymandering to be put to an end. 

A Constitution that states in its preamble that we strive for a more Perfect Union is the instrument for such a goal. It is time to recognize our current crisis as a unique "Black Swan Event" bubbling since the 1990's and finally brewed in the negative energy and divisiveness personified by the current president. The nation must take steps to weed out the roots of the corrosive divide that ails it before it is too late and falls deeper into the populist trap leading to its destruction. As was the case with the "Reconstruction Amendments" true representation must be clarified and cemented into the nation's charter to rectify and set a new course. We must go beyond the juncture of a single bad administration or politician and amend, transform and strengthen the rare and fragile nature of our democracy.

[CJR Note: for those observant ones, the four period ellipsis in the title is intentional]

[1] The Tenure of Office Act, a law restricting the firing of certain high level executive branch officers without consent by the Senate was repealed in 1887. In 1926 the Supreme Court referenced that law in another case, stating that it was probably invalid. This Act, if it had been challenged in court, most likely would have been struck down as unconstitutional, as it interfered with the separation of powers. It is possible that some of the Senators voting for the acquittal of Johnson took the long view on this, considered impeachment over a possibly unconstitutional law dangerous and voted against the party line because of that.

[2] During President Johnson's trial, the charges defined “An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.” 

[3] The estimated number of casualties of the Civil War is approx. 655,000, or 2.1% of the population at the time. By contrast, the total American casualties in WWII, the deadliest war in the history of mankind, was around 405,000, or 0.38% of the population.

[4] The language of the Scott v Sanford decision ruled that black people "are not included, and were not intended to be included under the word 'citizens' in the Constitution, and [blacks] can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."

[5] It may be remembered by some that, as part of the 2016 campaign, the threat (and "trauma") of impeachment was levied against candidate Hillary Clinton. It was said that congressional Republicans were ready to draw articles of impeachment against her on the grounds of "her emails" if she was elected and introduce them right after she was sworn in.

[6] Conducting secret foreign (or even domestic) policy to advance personal interests can lead to potential leverage (blackmail) by foreign nations, leaders or businesses who may then threaten to expose such illegal actions. It is very likely, for example, that Russian intelligence officials knew the contents of the July 25th phone call to Ukraine before the American public did.

[7] On average, Democrats to achieve House majorities have needed 53% of the vote, resulting in a 55% majority of Representatives three out of ten times, while Republicans only needed 49.5% of the vote to obtain a 54% majority of Representatives seven out of the same ten times.

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