Summary: President Trump might spark a change in our politics both unexpected and (as it will seem afterwards) inevitable, making our 18th century constitutional regime more similar to modern parliamentary systems. If he continues to act wildly and weirdly, the Republicans in Congress might impeach and remove him — putting the solidly far-Right Mike Pence at the helm. Trump would be the first President removed by Congress, but not the last. The occasional impeachment of Presidents would make Congress the Federal power center the Founders intended it to be.
Get ready for impeachment.
— Maxine Waters (@MaxineWaters) March 21, 2017
A long-time concern of constitutional lawyers and political scientists has been the fundamental instability of presidential governance systems, like that of the USA. How are deep and irreconcilable conflicts between Congress and the President resolved? Worse, what happens if we get an incompetent President after he loses the confidence of Congress, the public, and perhaps even senior executive branch officers? Especially at a time of national crisis, the result could be disastrous — with no obvious remedy. For example, see “American democracy is doomed” by Matthew Yglesias at VOX.
In the early 1980s Bruce Ackerman (Prof Law, Yale) began to study the process of constitutional change in America. He found an informal method of evolution other than the formal processes specified in the Constitution, which he called “higher lawmaking” (summary here). After the great crises of the Civil War, the Great Depression, and WWII — America’s political regime bears little resemblance to its form during Washington’s administration. The Trump years might create its next great test.
Much of America’s social change since WWII results from elites’ recognition that they can break the informal social norms that govern their behavior. Doctors can practice medicine as a business and become rich. CEOs can arrange corporations to pay themselves fantastic sums and so become plutocrats. Elected representatives can arrange to become almost permanent fixtures, retiring wealthy.
All of these changes seemed impossible before they happened, until they realized that the social norms that constrained them were just paper shackles. In the next few years Congress might realize that they can impeach a President at will, drastically changing the structure of US government to more closely resemble the parliamentary governments used by almost all other republics (for good reason few nations have copied our odd structure). Trump might force this break in precedent; its effects will change America’s government forever.
To better understand this, let’s turn to someone from a nation with a longer history and who sees the Constitution more clearly (distance gives perspective, allowing a dispassionate analysis). He shows that the Constitution’s 175 words about the impeachment process give Congress a powerful tool with few limits, limited mostly by Americans’ customs — which can change.
Excerpt from “Impeachment clauses and
the different meanings of ‘constitution’ in the United States of America“
By Denis Baranger.
From Responsibility of the Head of State (La responsabilité du chef de l’État
Volume 12 of the Colloques Collection (October 2009).
Slightly paraphrased for clarity. Links added.
Interpreting the impeachment clauses.
“In the 1787 Constitution, lawyers identify a series of provisions known as ‘impeachment clauses’ {4 of them, listed here}. These include Section 4 of Article II of the Constitution with which it is customary to begin. This text provides that ‘The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors’.
“The best starting point is observing that the Constitution creates a removal procedure without specifying whether it is ‘criminal’, ‘political’ or whatever else. The constitution is silent about the nature of the procedure. …
“I will outline three series of problems of interpretation posed by the impeachment clauses: (1) Who can be subjected to impeachment? (2) To what extent and in what way does the Constitution determine the behaviour of those who intend to bring an accusation? (3) What does ‘removal’ mean? …
“{The answers} cannot be deduced from the impeachment clauses themselves, but arise from a sort of interpretive convention. Such conventions are very common in impeachment law. It might even be said that this law is paved exclusively either with questions for which there are no answers or with answers consisting only in stating such constructive conventions. Controversy has arisen over just about every possible question, with each party being able to assert reasonable arguments. …
“There seems to {agreement} that impeachable acts are limited to {offenses} of criminal law …Except for ‘Treason’, which is defined elsewhere in the Constitution …there is no principle of strict definition of offences. …the founding fathers did not grant an unlimited power to impeach and condemn, but a limited one. …We cite Madison’s criticism of Mason’s proposal to extend removal to take in ‘maladministration’: ‘so vague a term will be equivalent to a tenure during pleasure of the Senate’. …In 1970 Gerald Ford declared:
“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” (Speaking in the House on 15 April 1970); recorded in the Congressional Record.)
Impeachment as a form of constitutional accountability.
“…Political accountability in parliamentary regimes is a test of the agreement in political views between the executive and parliament. It is a governmental accountability. Who will govern and how?
“This is where presidential impeachments take on a special prominence. Because of the President’s central constitutional mission, because he takes an oath to abide by and uphold the Constitution, the accusations that may entail his removal must bring out the character of his relation with the Constitution. They must state what the holder of the presidential office must or must not do. This is a form of what Bruce Ackerman has called ‘higher lawmaking’. Each impeachment is a new opportunity to state the Constitution. Conversely, resort to impeachment is a danger for the state and its stability. …
“The kind of accountability in impeachment procedure is a ‘constitutional’ one. By ‘constitutional accountability’ I mean that which is incurred for calling into question the constitutional equilibrium. That appears in the impeachment articles passed by the House of Representatives against Johnson, Nixon and Clinton. In all these instances, the President was criticized for violating the Constitution: by ignoring the obligation it imposed (especially ‘that he should take care that the laws be faithfully executed’); by ignoring his oath of office by which he undertakes to uphold the Constitution; or by a more general formula observing that he has acted ‘in violation of the Constitution and laws of the United States.'”
————————————————–
It should be noted that both the officials close to Pence and Hillary Clinton spoke of moving towards an ‘impeachment’ not other action.
— Julian Assange (@JulianAssange) March 14, 2017
My conclusions
The remainder of Baranger’s essay discusses the meaning of violating the constitution, the clashing authority of Congress and the President to determine what the Constitution says, and the inevitable involvement of values and morality in determining what violates the words of the Constitution. It is valuable reading for those who want to understand what might lie ahead.
Baranger forces us to realize we can interpret the 175 words describing the impeachment process in many ways. If a majority in the House and two-thirds of the Senate decide that Trump must go, they can remove him. That would require bipartisan support, politicians voting for the usual combination of patriotism and short-term political advantage.
But once done, Congress will see that it can be done again. The second time is always easier. The requirement for a super-majority in the Senate means that it will always be rare, but this leash on the imperial presidency and empowerment of Congress might create a firmer foundation for the Republic.
Abstract of Baranger’s paper
“The purpose of the present article is not to review all the aspects of executive accountability in the United States. Rather, I will attempt to make a few steps towards a better understanding of the removal procedure applicable, among others, to the President of the United States and that is commonly termed ‘impeachment’.
“Impeachment is central to the Constitution, exerting both an attractive and an inhibitive effect. It is attractive because the political will to hold the President accountable must fit into the mould of impeachment. It is inhibitive because impeachment has such solemnity that it is not an instrument for everyday use. Lawyers consider impeachment as a procedure of an exceptional nature.”
About the author
“Denis Baranger is a professor of Public law at Panthéon-Assas University and a fellow of the Institut universitaire de France. He graduated from Panthéon-Assas, as well as Sciences-Po Paris and the University of Cambridge. He specializes in French and comparative constitutional law, history of political thought.” {From his University profile.}
Follow him on Twitter at @DenisBaranger. See his Wikipedia entry and his books
For More Information
About the mechanics of impeachment.
- “Will Trump be impeached – or is it just a liberal fantasy?” in The Guardian — “Only two presidents in history have been impeached, but murmurs continue to surround Trump. Here’s how the process would work – if it would at all.” They do not say why liberals fantasize about having as President the competent and far-Right Pence.
- For a detailed analysis of the 25th Amendment: “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” by John D. Feerick (Prof Law, Fordham Law School), Fordham Law Review, 2011.
- Important: “Impeachment and Removal” by Jared P. Cole and Todd Garvey (Legislative Attorneys) of the Congressional Research Service, 29 October 2015.
- “So what exactly counts as an impeachable offense?” by Keith E. Whittington in the WaPo, May 2017.
- “What Are Impeachable Offenses?” – book reviews by Noah Feldman and Jacob Weisberg in the NY Review of Books, Sept 2017.
About Trump’s weakening support.
Polls show Trump losing support, a key requirement for successful impeachment. A Pew Poll taken on Feb 7-8 found that 46% were in favor of impeachment and 46% opposed. Another leading indicator is Trump’s job approval ratings. A March 16-21 Quinnnipiac University poll found 37% approve vs. 56% disapprove. Gallup’s March 21 poll found 37% – 55%, record lows since 1945 for a President two months after inauguration.
Articles about ways to replace Trump.
- To see how large forces are turning against Trump, see “The Media Have Finally Figured Out How to Cover Trump’s” Lies by Will Oremus at Slate — “Not just falsehood by falsehood, but as the defining feature of his presidency.” Even Fox News and the WSJ are defining him as a liar.
- The WaPo describes the other way to replace a President: “Trump opponents have rediscovered the 25th Amendment. Here is what you should know about it.“
- See this history of how other nations dealt with incompetent or even mad rulers: “The Madness of King Donald” by Richard Evans at Foreign Policy — “When people start asking questions about a king’s mental stability, the story usually doesn’t end well for the monarch.”
- About the increasingly desperate attempts to fit “Russiagate” into the “Watergate” template: “A ‘narrative’ outworn” by James Bowman in The New Criterion.
For more information on the FM website.
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Constitution, about ways to reform America, about Trump and the new populism, about Russiagate, and especially these…
- Important: Forecast: Death of the American Constitution.
- Conservatives tells us not to worry about the Constitution’s death.
- Can Constitutional amendments save the Republic? — By John Nichols at The Nation.
- Is it time to take the drastic step of calling a Constitutional Convention?
- Was the 1787 Constitutional Convention a runaway, in effect a second revolution?
- Could a new Constitutional Convention help reform America? Is it worth the risk?
- We’ve worked through all 5 stages of grief for the Republic. Now, on to The New America!
Recommended books about the Republic.
The Executive Unbound: After the Madisonian Republic
Impeachment: A Citizen’s Guide
This article starts from an incendiary headline, which is nearly totally unrelated to the content, then follows up with quotes from such constitutional giants as Maxine Waters (unmentioned for some reason in passages that talk about mental instability) and Matt Yglesias (again, mental instability). The article finally establishes some meat by quoting an expert on the US Constitution, from France, who makes the astounding discovery that 1. The Constitution is sometimes vague and 2. The elites sometimes do whatever the heck they want to, the law and the peons be damned. I had no idea, and I am forever grateful to the 5th Republic for pointing out what our famous main stream media was incapable of discovering during the Obama Republic. Who the heck new? When did this happen? Can we have Congress investigate?
I have been coming to this site for some understanding of leftist thought. Fabius generally seems to be a bit more reasonable than other possibilities (ever read Matt Yglesias? Hurts doesn’t it?). But with this one missive, you have blown it completely, from headline to the last sentence. Do I really have to put you into the same bin with Salon?
Dave,
I don’t understand your comment. The title accurately describes the content. The rest of your comment is just snark, and does not even attempt to provide a rebuttal. This is typical:
“quotes from such constitutional giants as Maxine Waters (unmentioned for some reason in passages that talk about mental instability)”
Representative Maxine Waters tweet shows that some in Congress are already talking about impeachment. She is the Democrat’s Chief Deputy Whip and the ranking Democrat on the powerful Committee on Financial Services.
Haha i counldn’t have trashed this nonsensical article more thoroughly or humorously than you just did. Desperate liberals who keep posting rubbish like this lack any proper grasp of the political system.
Let me tell you now, TRUMP WILL NEVER BE IMPEACHED, especially if the republicans keep control of the house and senate. You really think after 2 failed attempts by more ‘traditional’ or ‘moderate’ republicans, they will get rid of the guy who finally won them the presidency and both chambers of congress? Do you know the kind of blowback they will receive from their base if they do?
The fact is America is getting more polarized by the second.. both conservatives and liberals are more extreme and intolerant in their views than ever before, hence there is no room for finding common ground, The American government is now a total winner takes all system so while Trumps behavior might seem unacceptable to the one-third of America that is liberal and some of the one-third that is ideologically neutral, he is acting EXACTLY as expected to the one-third of the country that voted him in and as long as that base stays intact, trump is safe because the last thing republicans will want to do is disrupt the coalition that elected him because they know no other republican can do it again. Its no easy task for any republican to create a winning coalition of alt-right, moderate, white working class and minority voters. Trump did it because he is a unique candidate and republicans will leave him in place and quietly push in their agenda no matter how ‘crazy’ you liberals think he is.
Femi,
“Let me tell you now, TRUMP WILL NEVER BE IMPEACHED, especially if the republicans keep control of the house and senate.”
I appreciate that you have such confidence in your predictions about the future. Still, you do not appear to have read the post — paying attention to the words. Trump’s declining job approval numbers — now 39% approve, 56% disapprove — are record lows for day 59 of a term since Gallup began this survey in 1945. This post discusses what options Congress will have if Trump …
While you appear to consider yourself equal to the Priestess at Delphi in your ability to see the future, the rest of us have to use humbler methods to prepare for the future.
So, the author thinks that a barely disguised coup d’état is the way to improve democracy in the USA. Another example of the totalitarianism hiding behind the liberal façade.
Dalcio,
“the author thinks that a barely disguised coup d’état is the way to improve democracy in the USA.”
Try reading more carefully. What is discussed here is exactly following the Constitution’s text, and so not remotely like a “coup d’état”.
“Much of America’s social change since WWII results from elites’ recognition that they can break the informal social norms that govern their behavior…”
You think so?
Just the “elites”?
Informal, huh? And what about the formal ones? What would we call that possible chaos that might ensue? Delve into that and maybe we might have a hint of what is going on. Maybe even a smidgen of what lies ahead. And we get to read or rather are urged to really read, a Frenchman. And who would have thought an impeachment might be political?
Goodness.
Breton,
“What would we call that possible chaos that might ensue?”
I call that guessing about the future. Quite different than my simple statement about past.
“And we get to read or rather are urged to really read, a Frenchman.”
I assume that’s is considered a rebuttal, or mockery. If so, it is the best statement of American exceptionalism I’ve seen in weeks.
“Yes, Comey’s testimony was a turning point: Consider the reaction from Trump and the GOP” by Heather Digby Parton in Salon, 21 March 2017 — “Nothing the FBI director said was all that explosive — but he left the White House and Republicans reeling.”
Impeachment, huh? Simply bizarre.
Breton,
I did not say that Trump will be impeached due to the rumors about his connections to the Russians. I’ve written several posts debunking those rumors. Let’s replay the tape:
My prediction: President Ryan within the year.
It’s the UK version of ‘House of Cards’. Pence will be forced out when Trump is. (He has no real constituency, unlike Gerald Ford.) Ryan learnt his lesson about the perils of a national candidacy and sees his opportunity to get what he wants without that exposure. As Boehner discovered, Ryan rarely misses.
I doubt impeachment will play much of a role, except as a club. The Rs won’t want to repeat Clinton. The niceties of Constitutional law are insignificant compared to the interests that can be brought to bear on the president* and his family.
Knowledge of Roman and Byzantine history in our new age will be important. Were I writing under a pseudonym, I’d choose that of Rogers E.K. Whitaker who wrote his racing columns for the New Yorker as ‘Audax Minor’.
Keep up the provocative posts. And, thank you.
Peter,
“Pence will be forced out when Trump is.”
I don’t understand. Why would the far-Right dominated Congress dislike Pence? On what grounds could they impeach Pence? The usual formula of violating the Constitution could hardly apply to him.
FM, on Pence, I believe the Rs will want a ‘unity’ president in the wake of Trump’s downfall, especially one with a Constitutional claim to the office. Whatever the precipitating cause of Trump’s resignation, Pence’s election will be held to be tarred, especially if it’s the Russian connection.
In any case, I don’t see a return to two-party rule. This is an intra-party fight with the occasional D getting a lick in. I don’t see the Ds benefiting from subsequent calls for tightening election protections and shields against foreign influence.
So far, the ‘interests’ haven’t tipped their hands. Neither has the security/military apparatus. And, Trump isn’t out of the game yet — by any means. We’re in most interesting times.
Peter,
Thanks for sharing that analysis. Here are my guesses. Time will tell which of us is more correct.
No. President ryan will never happen. He is dirty and part of the trump scandal…
If Paul ryan did make president that would give clear indication that this country is on its way to hell.
Sal,
“part of the trump scandal…”
Ryan is part of what Trump scandal?
Yes… your president will be impeached. What trump has done is commit treason. A much worse act than that of Bill Clinton affair.
If you disagree than you are part of the reason this country is nearing it’s downfall. To allow crimes to go unpunished is the reason why our country has gone to crap.
Sal
“What trump has done is commit treason.”
What are you talking about? A comment needs more detail to be understandable to other people.
I think if they pull out the Impeachment club, they are going to have to actually execute on it because I do not think it is a great feat of imagination to figure that Trump is unlikely to want to resign to avoid the process. Indeed he would probably welcome it. I think you might get an effect like Fab is theorizing even if the impeachment effort narrowly failed in the Senate.
America needs to reform it’s government. We don’t have truthful people in any of our agencies to carry out the law of the land. Anyone, including themselves should be held accountable for their wrong doings no matter what they maybe (citizen, banker, judge, politician) and yes even authorities.
It also needs an overhaul within its politics. Meaning get rid of dirty politicians that have been involved in any bribes and any politicians that are accepting payoffs to hurt U.S. citizens.
I also believe an age limit should be placed on politicians… if not an age limit, than a limit to service. They should be done after a decade of service. Anything more would give opportunities of scandal or any kind of mischief.
The problem as a whole is that law doesn’t respect and enforce the constitution. It allows parties like republicans to amend or make new rules as it goes.
Republicans have way to much control and that should not be the case. No party is bigger than the other….
The constitution is fine except for the electoral college… that needs to be amended real bad.
I actually think term limits – at least the very tight ones people advocate, as opposed to (say) 10 congressional terms/4 senate terms or something like that so people don’t become total lifetime institutions – would weaken the power of the Legislature in favor of lobbyists and the bureaucracy. Have term limits improved governance in the states where the efforts have been tried?
Dana,
I — and actual experts on such things — agree. Term limits decrease the expertise and political power of the legislature. They are a gift to lobbyists, whose power waxes in a legislature of every-changing amateurs looking to benefit during the brief time in office.
Term limits are an example of the fantasy sim city approach to government that is becoming increasingly popular. Not going to end well for us.
I agree that the Republican party may see a benefit in replacing Trump with Pence – certainly if the 15 or so Republican Senate votes were there, they could come up with a dozen reasons.
Some election cycle issues here. In 2018, the Rep’s have a chance to pick up a few more Senate seats just because most of the ones up for election are Dem. So would they wait until after, so as not to alienate the substantial part of their constituency who don’t trust their own party? Do they keep Trump around long enough so he can absorb the blame for anything particularly unpopular that is on the agenda? Come to think of it, would impeaching him be killing the golden goose in a way? He is the perfect distraction in so many ways…
“Much of America’s social change since WWII results from elites’ recognition that they can break the informal social norms that govern their behavior”
This is simply the crisis of (small-l) liberalism. The root-word of “liberalism” remains “liberty,” and liberty inevitably expands until it breaks any and all social norms. The question then becomes whether liberalism itself can survive once these social norms have been destroyed. And (of course) what might replace it.
Of course, impeachment is (and always has been) a political remedy and not a judicial remedy, as the Constitution prescribes the process without defining such standards as might apply in a court of law.
Will Pres. Trump be impeached? Possible, but very unlikely. Although if it were to become commonplace to use it against presidents then it surely it could and probably would also be used to remove much of the federal judiciary, up to and including the Supreme Court.
Caligula,
“and liberty inevitably expands until it breaks any and all social norms.”
That’s a powerful observation. Liberalism has survived in the West because it rested on a base of Judeo-Christian norms. As liberalism eroded them away (once belief in God and Hell no longer provided fences to behavior), the structure appears to have become dysfunctional.
“Will Pres. Trump be impeached? Possible, but very unlikely.”
That’s a pretty confident prediction. It might be proven false if Trump becomes increasingly unstable AND the Dems get a majority in the House after November.
“Although if it were to become commonplace to use it against presidents”
See the essay cited in this post for a discussion of that scenario. It would mark a major change in our system, moving us towards a parliamentary-like system. Which is a more functional system (that’s why of the scores of nations who have adopted western-style Republic, almost all have choosen parliamentary systems — and few followed our example).