Understanding Impeachment (with Gene Healy)

Gene Healy joins us to discuss the concept of impeachment, from its’ origin to its’ impracticality in our polarized political climate. 

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The concept of impeachment was not new at the time of the Constitutional Convention. The Framers thought including the ability to impeach the Chief Magistrate to the Constitution was extremely important. However, today it is hard to picture in our polarized political climate that there would ever be a super majority in the Senate in order to impeach and remove a president.

Were there debates about including impeachment in the Constitution at the Constitutional Convention? What is the scope of the impeachment clause? What does the process of impeachment look like? What level of incompetence could be grounds for impeachment?

Further Reading:

Democrats Abandon the Constitution, written by David B. Rivkin Jr. and Lee A. Casey

Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power, written by Gene Healy

Nixon v. U.S.

Related Content:

America’s Dangerous Devotion to Executive Power, Free Thoughts Podcast

King Obama, King Trump: The Dangers of an Imperial Presidency, Free Thoughts Podcast

[music]

00:07 Aaron Ross Powell: Welcome to Free Thoughts. I’m Aaron Powell. Trevor’s out this week, so co-hosting with me is my boss, Cato Vice President John Samples. Thanks for filling in John.

00:16 John Samples: Thanks for having me.

00:17 Aaron Ross Powell: John and I are joined today by Gene Healy, Cato Vice President and author of the new paper, “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power.” Welcome to Free Thoughts.

00:27 Gene Healy: Thanks for having me on.

00:29 Aaron Ross Powell: Were there debates about impeachment at the Constitutional Convention?

00:34 Gene Healy: Sure. It got quite a bit of debate particularly in July, and all of the debate really about impeachment at the convention focused on Presidential impeachment, and there was a minority of the delegates, Gouverneur Morris, Charles Pinckney, maybe one other, who were against the idea of Presidential impeachment all together, and that view practically got shouted down at the convention with an onslaught from Madison, Franklin, and others to the point where Morris actually confesses that his mind has been changed by the assembled delegates and the enthusiasm for the necessity of Presidential impeachments, and he admits at the end of that debate that there were… That impeachments for the president were necessary.

01:49 John Samples: Yeah, wouldn’t it be like having a Constitution without an amendment’s clause. I mean, a theory… You gotta have a theory of mistakes to go with these institutions. And if you could… How would you get rid of a president that was off-track if you didn’t have the impeachment?

02:05 Gene Healy: Well, the idea would be regular elections. And that was Morris’s case. Madison said that the security, that regular elections were not a sufficient security. He says for example, that the president might lose his capacity after impeachment. He might turn out to be corrupt, and I think, you know, one indication of how much broader this remedy was considered to be than we typically recognize today, was Madison’s statement that during this debate, that some mode of displacing the Chief Magistrate was indispensable because of the possibility of the incapacity, negligence, or perfidy of the president.

02:56 Aaron Ross Powell: What did the English laws about impeachment look like? ‘Cause presumably that’s the tradition that the framers were operating within and what they were looking to for example.

03:07 Gene Healy: Well, impeachment has about four centuries of history before we even get to the constitutional convention, and it developed as a means of targeting people that were too highly placed to be amenable to ordinary legal process, King’s ministers. And that history was known to the framers in some detail, and that’s actually where the phrase “high crimes and misdemeanors” comes from. It was understood not to be limited to… The funny thing about the phrase is it has an odd resonance in contemporary language. It sounds like, it’s one of the reasons people, somewhat understandably, confuse impeachment with a criminal process because well, it mentions crimes, it mentions misdemeanors, which we think of as lesser crimes punishable by up to a year in jail. It didn’t really have that connotation in English practice or, you know… And that was understood by the founding generation. In contemporary language, high crimes and misdemeanors sound something like grave felonies but lesser offenses too.

04:31 Gene Healy: Actually, it’s a broad category of offenses committed by men in high places who are… And it’s something that… In a similar way that you could not enumerate all the rights of man in the debate over the Bill of Rights, you could not enumerate all of the possible abuses of power, offenses, mis-behaviors, that a highly placed federal official might commit. So Hamilton says in the Federalist Papers, “These are offenses of a political nature and they can never be tied down by such strict rules as commonly governed criminal cases.”

05:26 Aaron Ross Powell: Do we have evidence of the debate about this at the Constitutional Convention? He said they…

05:32 Gene Healy: Sure.

05:33 Aaron Ross Powell: They pulled this term out of, it was a term that had been in use. But did they debate the specific meaning of what high crimes and misdemeanors were at the convention?

05:43 Gene Healy: Well high crimes and misdemeanors comes a bit late in the convention. There’s several, throughout the convention various drafts, various proposals, there’s language about, maladministration, misfeasance, corruption, high crimes and misdemeanors actually gets introduced by George Mason. And it’s at a point where one of the committees has narrowed the language for impeachable offenses to treason and bribery. And Mason says, “Well, treason and bribery, that wouldn’t reach a lot of great offenses against the constitution.” He mentions the trial of Warren Hastings that’s going on in England, that started just before the Constitutional Convention. He said, “Hastings is not guilty of treason.” So Mason suggests maladministration as a standard. Madison objects to maladministration, says it would basically mean that the president served at the pleasure of the Senate. And Mason apparently concedes and offers high crimes and misdemeanors which had become the sort of term of art in British impeachments.

07:08 Gene Healy: Now there’s a debate because of that exchange that I don’t know how much into the weeds you want to get, but some people have said, see maladministration was rejected at the convention, and it means that you can only impeach the president for being a crook or for abuse of power. But there’s a lot of indication that high crimes and misdemeanors both in English practice and as understood by the founding generation, incorporated some forms of maladministration, that some forms of gross negligence, inability to do the job, were understood even by Madison to be contained within the phrase “high crimes and misdemeanors.”

08:00 John Samples: So to draw from this morning’s paper, there’s an op-ed in The Wall Street Journal that says or argues directly that Justice Kavanaugh could not be impeached now that he’s on the court for things that happened before he went on the court. Is that, in your understanding, generally true of the impeachment power, it can only concern what goes on in the office itself?

08:26 Gene Healy: Yeah, I saw that op-ed. It’s by Rivkin and Casey and that particular part of it at least is nonsense. The idea that you cannot be… In fact, our most recent impeachment of a federal judge in 2010 involves this issue, a past behavior that took place much of it prior to elevation to the post at issue and this federal judge in 2010, Thomas Porteous is impeached in part for lying to the Senate about his background and corruptly procuring office. And at the convention, there were several delegates, Morris was among them, and Mason who mentioned various forms of corrupting the Presidential electors as an impeachable offense. So the idea that once you… And I’m leaving aside the specific circumstances of Kavanaugh, that’s a different debate, but the general claim that they make in that op-ed that you cannot be, that you sort of… You enter the office, even if you lied your way into the office, that you enter that office with a clean slate and cannot be impeached for anything that you did up to confirmation for that office. That’s just not true.

10:01 Aaron Ross Powell: When we’re looking for evidence of what the scope of the impeachment power is, what high crimes or misdemeanors might mean, is it always looking at the political process? So in the sense that what we do is we look at prior examples of impeachment and prior examples of whether it was actually, is it called conviction, is that the term? You file the articles.

10:25 Gene Healy: [10:25] ____ for removal.

10:26 Aaron Ross Powell: Removal.

10:26 Gene Healy: You do say convicted in the Senate trial, sure.

10:28 Aaron Ross Powell: Okay. So do we just look at that process or is this something that courts themselves have weighed in on? Like could the Supreme Court weigh in on the scope of high crimes and misdemeanors if, say, the president were convicted in the Senate but rejected it, saying the Senate behaved unconstitutionally?

10:46 Gene Healy: Almost certainly not. The most significant time that the court has looked at this was in case Nixon versus the United States, not involving Richard Nixon, but actually an impeached Federal Judge Walter Nixon, kind of unluckily named. And the court, Judge Nixon had been impeached and removed for perjury and the… What he challenged about his impeachment was this process by which the Senate, so as not to hold up Senate business entirely, had a committee of 12 senators who would review the evidence and prepare a report, and then the entire Senate would vote on impeachment. Judge Nixon challenged that as not… As denying him his right to a Senate trial. And in the opinion written by Justice Rehnquist, 1993, the court held that basically the Senate had the sole power to try impeachments and that this was a political question and it had been directly committed to another branch, and the court wasn’t going to touch it. I think in almost any conceivable circumstance, that is going to be what happens. You’re not going to see the House impeached, the Senate remove a federal official and the Supreme Court weighing in and saying, that wasn’t within the scope of high crimes and misdemeanors.

12:33 John Samples: So was Gerald Ford right when he was talking about William O. Douglas that high crimes and misdemeanors mean whatever a majority of the House Representatives think it means?

12:45 Gene Healy: He’s sort of right in a trivial sense, in the sense that if the House impeached and the Senate removed Donald Trump for the alleged high crime and misdemeanor of eating well-done steak with ketchup or tying his tie too long, that even in that circumstance, it’s highly unlikely that the Supreme Court is going to challenge that determination. So in the sense that there is not going to be external review, then Ford was partially right, but I think mostly wrong in this sense. While there is not going to be an external arbiter like the court to weigh in on the scope of high crimes and misdemeanors, the legal standard turns out to matter in practical terms.

13:51 Gene Healy: One of the reasons that in our first presidential impeachment trial, Andrew Johnson in 1868, one of the reasons that Johnson was able to escape conviction in the Senate, was that they based the bulk of the charges on violation of the Tenure of Office Act, which said in essence, that he couldn’t fire his own Secretary of War. The Senate Republicans had more than enough to convict Johnson on a party line vote but they missed several Republican votes, he escaped by one vote. And some of the Republican… The so-called Republican recusants, the Republicans who voted against conviction, explained their vote in part by saying that they didn’t think violation of the Tenure of Office Act was an impeachable offense. I think when you… The legal standard and the grounds for impeachment tend to turn out to matter in practical terms, even if there’s no likely scenario in which they can be challenged in the courts.

15:06 Aaron Ross Powell: We’ve talked around this a little bit, but maybe it would help our listeners if we made it explicit. So what does the process for impeachment look like? How does one play out?

15:20 Gene Healy: Well, there’s not much procedurally in the constitution. The House has the sole power of impeachment, the Senate has the sole power to try impeachments. The penalties are limited to removal from office and possible disqualification for office. In practical terms, what usually happens now is… If Donald Trump were to be impeached, it would first go to… Impeachment resolutions generally goes to the House Judiciary Committee and the bulk of impeachment resolutions die in the House Judiciary Committee, but the House Judiciary Committee, if they’re conducting an inquiry, if it saw fit, would report that out to the full House and if the House voted the articles of impeachment, they would then…

16:26 John Samples: That’s just a simple majority vote?

16:27 Gene Healy: Yes. They would select House managers to try the case before the Senate, they’d notify the Senate of the impeachment, and then the Chief Justice presides in the Senate Impeachment trial of the president and which doesn’t matter a whole lot because the majority of the Senate can overrule a ruling by the Chief Justice. I think Rehnquist, when he presided over the Clinton impeachment trial, in early ‘99, at the end of it, he said, “I did nothing in particular, and did it pretty well.”

17:13 Aaron Ross Powell: So you said the House appoint House officers to try it in front of the Senate. So are these Congressmen?

17:20 Gene Healy: Yes.

17:21 Aaron Ross Powell: So they pick a prosecutor and a defense attorney basically? Or how does this…

17:26 Gene Healy: No, the president in the past has had his own defense counsel, that’s up to him. The House Managers are essentially the prosecutors. If you think back to the most recent presidential impeachment, you had folks like Lindsey Graham who was in the House at the time, was a House Manager and Bob Barr, a former… Went on to be an LP nominee for president, was another house manager in that case.

18:00 John Samples: Well there’s another aspect to this that comes to mind, which is that impeachment in itself as a removal from office, the second part, is it has a real follow on to it. You’re removed from office, you may be exposed later to actual criminal indictments and so on. And so that’s very concrete. But I think we also, you never can tell about things, but you would sort of say, looking down the road, it’s gonna be hard for anyone to have the necessary super majority to remove a president absent some extreme. And even if you might have extreme acts, that in this kind of partisan atmosphere, are not gonna produce a super majority, right? So it’s hard to see and you guys can disagree here, but how you’re going to get a removal from office. That’s gonna be pretty unlikely.

18:54 John Samples: So what you really have is impeachment itself, which is the House side and it’s the indictment, and it’s a very political act. With the Clinton… The harms to the president or the benefits seem to be political in nature. And with Clinton, what Clinton showed was, while it looked like going in, that impeachment was going to do him a lot of political harm, it actually ended up doing him a fair amount of political benefit, I think we have to say. Because the popular judgment was that this was over-reaching, given everything that had happened. So is that really what we’re talking about in practical terms, looking down at least over the next decade or so, that impeachment is not going to remove anyone from office short of something tremendous, but it is, and it’s a two-edged sword in terms of politics.

19:48 Gene Healy: Well it is true that it takes extraordinary historical circumstances. So however broad the framers understood the scope of high crimes and misdemeanors to be, and I provide evidence in the paper that it was quite broad, they may not have understood how difficult they had made the change to the two-thirds requirement for removal and the Senate comes very late in the convention. They’re tired, gets no debate. They didn’t really predict the rise of political parties.

20:31 John Samples: Was it a simple majority before or…

20:34 Gene Healy: It had been a majority through most of the convention. It’s the Committee of 11 that makes it a two-thirds… Require two-thirds of the senators present to remove. And it just doesn’t seem to get very much notice, it doesn’t really get any debate. They were not, again, they didn’t seem to envision the rise of political parties as happening as quickly as it did. And the combination of that high bar to removal and the parties has meant that you only get impeachments in these sort of… You only get a close to Presidential removal in extraordinary circumstances, like post-reconstruction, dominance of the Republicans in the Senate, and Richard Nixon in ‘74. So the structural barrier does mean that in practical terms, you may need something like Nixon, on the level of Nixon’s abuses, to get close to removal or to force a president out. That said, I don’t think that it’s the case that impeachments are pointless, unless you manage to remove the official impeachments. There was debate during the Clinton years about, “Well maybe we should just censure him”. I’m willing to bet that neither of you can name three presidents who’ve been censured.

22:28 John Samples: No.

22:29 Aaron Ross Powell: Nope.

22:29 Gene Healy: Yeah.

22:29 John Samples: You win. [chuckle]

22:31 Gene Healy: History is… The one that people can name usually is Andrew Jackson over the back of the United States, which was then expunged. But censure, while it’s possible is sort of a non-issue. Impeachment turns out to be censure with teeth. It can be used to enforce important constitutional norms, and it becomes for as infrequently as it’s actually accomplished, impeachment in the House is something that presidents are scared of. It’s… The first thing people know about Andrew Johnson, it’ll probably be in the first paragraph of Bill Clinton’s obituary, and history has a funny way of re-evaluating some of these things. A lot of historians are re-evaluating the Johnson impeachment which was for years taken to be an abuse of power by the Radical Republicans. And even right now, people are re-evaluating the… People on the left are re-evaluating the Clinton impeachment. I think the consensus view is still that it may have been in some ways, a waste of time and money and a distraction, but it’s an important part of Bill Clinton’s legacy. And in the middle of the Me Too movement I’ve seen quite a few folks, Michelle Goldberg, in the New York Times, Matthew Yglesias, a few other people say that Bill Clinton really should have resigned. What he did was disgraceful.

24:14 John Samples: But in saying it’s a political or even primarily a political institution now, that’s not necessarily to say a bad thing in the sense that the presidency itself is much more of a political institution, that it was probably intended to be in 1789. The other thing that struck me about what you said about the founders was they were sort of, on their behalf, choosing majority impeachment voting rule or two-thirds or 60% or something. They also had this big concern about the presidency being too dependent on the legislature. So I can see where, from their position, they didn’t foresee that they thought the legislature, Congress was gonna be the most powerful. They didn’t see our circumstances which is where you’ve really had a change where the Presidency and the court are much more powerful than they look like they were supposed to be, and the States and Congress are much weaker. So in a sense, history is undone, a judgment that might have been a reasonable one had Congress turned out to be as powerful as it’s supposed to be.

25:20 Gene Healy: Yeah, Madison thought that the legislature was… Legislatures everywhere were drawing all power into their impetuous vortex. In modern circumstances, it’s clearly the executive branch that is drawing all the power to itself. What’s strange is that as the presidency has grown over the years from a comparatively modest Chief Magistrate into this figure with full spectrum dominance over American and international life, at the same time you’ve seen a drift away from… You’ve seen almost a rejection of the very idea of discussing impeachment with regard to an elected president. We use the term the I word as if there’s something blasphemous about it. And it’s become as the presidency has grown more and more powerful, we’ve shrunk more and more from what the framers thought was an essential remedy to abuse of that power, or incapacity and negligence in the exercise of that power.

26:39 Aaron Ross Powell: I’d like to go through some of those. You lay out in the paper, you discuss kind of the big categories of grounds for impeachment. So what’s… The first one is, you talk about is incompetence, I think. What level of incompetence are we talking about here that you think would be, or that the historical record shows would be grounds for impeachment?

27:05 Gene Healy: Well, I think the early cases are usually a better indication, that’s the ones that are sort of contemporaneous with the ratification, roughly contemporaneous with the ratification of the Constitution are a better indicator of the scope of high crimes and misdemeanors than later cases for various reasons. Proximity being the main one. And the first, the second impeachment trialed in the very first removal of a federal officer was a federal judge named John Pickering who was impeached and removed from office in 1804 essentially for showing up to work drunk and ranting like a maniac from the bench. What was at issue here was not just negligence but a level of gross incompetence. In fact, Pickering was insane. He wasn’t just a drunk, he kind of lost his marbles, his son was willing to provide testimony to that effect but… And there was some controversy in that trial about… Well, can you really impeach and remove someone for not being all there, for not having any kind of mens rea, just for being a crazy drunk? And the outcome of that case was you can.

28:41 Aaron Ross Powell: You seem awfully weird to argue the other way. I can see… So I can see arguments that we don’t wanna remove people for things that look like political reasons, or even that we don’t wanna remove people for crimes that happened before they became a federal officer or even minor crimes, but to take them out ‘cause they’re just not capable of doing the job seems like the most obvious grounds.

29:07 Gene Healy: Yeah, and I think, look, the… Interpreting high crimes and misdemeanors is not like interpreting what interstate commerce meant in the 18th century. It doesn’t give you as clear answers. But, yes, the sort of a level of incapacity we were talking about with Judge Pickering, I think, would be a starting point. There’s also a hypothetical offered by the law professor Charles Black who wrote one of the great short treatments of impeachment in the 70s. It says, if the president decided that he wanted to move to Saudi Arabia because he wanted to have four wives and to conduct his… Conduct the job over the telephone, it wouldn’t look like what we typically think of as an impeachable offense but obviously, you would have to impeach that person for a gross neglect of duty.

30:17 Gene Healy: So high crimes and misdemeanors, Madison said this, and it stands to reason that it has to be broad enough to encompass gross negligence to the point of almost abandonment of the office, would be one starting point. But it seems also clear that it should not be understood broadly enough to encompass ordinary workaday negligence in mistakes made with, in a position that has now included the executive branches, now is over 2 million federal civilian employees. It would be, I think, an abuse of the impeachment power to start talking about impeachment every time someone in that vast and sprawling enterprise screws up.

31:18 John Samples: So I’ve read… And it’s great I have someone look into these things closely ‘cause you always check your own prejudices and ideas you have in your mind you’ve been going around with, and one I have is about the impeachment of Samuel Chase and the idea there that’s always… He came up, I think, one vote short of impeachment, and the idea that Chase was a…

31:40 Gene Healy: Supreme Court Justice.

31:42 John Samples: And a federalist, and like many Federalists around 1800, he was in complete freak-out mode, except he would go on the bench and start saying things about Jeffersonian Republicans and the Jackman elements and even, I would think he was pretty virulent even by our standards. And so he got impeached, or he was… They were trying to impeach him for it. And then the idea that comes out of this is the people who say the Constitution has all of this and then you have practice that decides what it actually means and that this was an important thing because the practice, what happened with Chase, said, “We’re not gonna impeach people for partisan political reasons, or just political reasons”, is that true or is that just a story that the…

32:27 Gene Healy: Well, I think… So for the Chase Impeachment, Justice Rehnquist, before he… Actually, a few years before he got to preside over the impeachment trial of president Clinton, actually, wrote a book on two key impeachments; one of them was the Justice Chase Impeachment in 1804 or 1805, and the other being the Andrew Johnson Impeachment in 1868. But Rehnquist’s view of the Chase Impeachment was sort of, “Thank God it failed. This would have been terrible. It would have reduced the judiciary to… ” Just in the same way that people were concerned about the Presidency becoming a pawn of Congress, this would have threatened the independence of the judiciary.

33:21 Gene Healy: Keith Whittington from Princeton, I think, has a nice treatment of the Chase Trial, where he talks about how it actually… Well, maybe it’s a good thing that they failed to remove Chase in the trial, but it actually, it established a new, invaluable constitutional norm, which was that judge… Federal judges were not supposed to be openly, nakedly partisan. They were not supposed to… The key charge, and the one that I think that Chase came closest to removal on was a rant before a Baltimore Grand Jury riding circuit that sort of denounced it, by implication, the Declaration of Independence and the Jeffersonians. The other charges involved bias, partisanship and unfairness against Republican defendants. But after Chase… After Chase’s impeachment trial, he calmed down quite a bit, and a new norm was established that you could not be an openly partisan player as a member of the federal judiciary, and it seems to me that’s a valuable norm.

34:47 John Samples: That’s really a good point because we’ve been talking, in the last few years, a lot about norms, right? And mostly, you know, it’s sort of like, “Well, I don’t know where that comes from and it’s not in any book,” but I’ve noticed when it’s violated, something like that. But what you’re really saying, Keith was saying, this is where one of the… Impeachment’s valuable because it does create norms and that that’s why we think that behavior by officials might be odd.

35:13 Gene Healy: It can also be used to enforce pre-existing norms. And in the Chase case it sort of established a valuable norm, but it can also be used to vindicate norms that we already think are established.

35:33 John Samples: So I’ll pose a provocative question for you. What the norm coming out of the Clinton impeachment, was it that… What he did and the related things was… It didn’t rise to the level of an impeachable norm, or that it didn’t rise to the level of an impeachable norm as long as the economy is growing at four percent?

[chuckle]

35:54 Gene Healy: Well, that’s certainly a factor. Look, impeachment is always a mixed question of law and politics, and it’s certainly… When you’re facing a Senate trial, it’s certainly better to be in the middle of a red-hot economy, as Clinton was. And, as you pointed out, one of the weird features of the Clinton Impeachment was, I think, its popularity peaked [chuckle] during the impeachment, over something like 73% popularity in the middle of the House impeachment effort. Yeah, you can never divorce politics from the outcome of impeachment efforts.

36:38 John Samples: The other thing about that one is, about in terms of norms, is it was almost like a distinction was drawn between perjury that would lead properly to impeachment and perjury that was sort of not really perjury, in a sense. It was kind of a… It was perjury, but it was caused by the circumstances that… And there’s a lot of interpretations of what went on in 1998, but it did seem that there wasn’t a strict liability for perjury on the president that, as an impeachable offense.

37:13 Gene Healy: No, and I think… Look, the legal analysis part of impeachment, the constitutional analysis part of impeachment can tell you, in principle, is something like perjury or obstruction of justice or illegal war-making, in principle, is that an impeachable offense? What it can’t tell you is, in any given case, is it a good idea to… It doesn’t answer the questions about prudence. So you could have… About prudence, about wisdom, about whether it’s worth the candle to pursue this effort. Those are all political judgments that you hope will be made in better faith than a lot of political judgments usually are, but the legal analysis can’t answer that question. So what happened in the Clinton trial was that… The Clinton impeachment effort, very few people on the Democratic side denied that obstruction of justice was an impeachable offense, in principle. What seems to have happened is that a lot of people decided, in this particular set of circumstances, it didn’t rise to the level of something that requires the removal of the president.

38:41 Aaron Ross Powell: What about incapacity? So you’ve mentioned him being impeached for incapacity, which I guess incapacity in sense is just like an absolute form of incompetence ‘cause you’re just not… You’re not capable of fulfilling the duties at all. But if you can be impeached for it, then how is that related to the 25th Amendment?

39:01 Gene Healy: Well, yeah, incapacity, we talked about Pickering, the Pickering case, the drunk and insane federal judge, in the context of gross negligence. But it’s probably better understood as a case of incapacity. The 25th Amendment comes along. It’s ratified in 1967. There was no specific mechanism for removal of an incapacitated president prior to then, but I would argue that that’s because the mechanism was impeachment. In most cases, the Pickering case shows that it’s available for incapacity.

39:52 Gene Healy: And we’ve arrived at this weird… Because we have adopted a view of the scope of high crimes and misdemeanors that says it needs to be a Nixon-style criminal abuse of power, we’ve… And because we have the 25th amendment, we’ve sort of got this idea that, well, if the president is a vegetable, then you can remove him through the 25th amendment. If he turns out to be a horrible crook, then you’ve got impeachment. But for anything in between, you kinda just have to ride it out until the next election, or until he’s term-limited.

40:35 Gene Healy: But one of the… In the impeachment debate at the convention, that’s one of the things Madison mentions, is that the president could lose his capacity after his election. And he says, and that could be fatal to the republic, fatal to the republic at a time when the president, presidency was a lot less important and a lot less central than it has become by the 21st century.

41:04 John Samples: So I think in the 25th Amendment, they were thinking, first of all, about Kennedy, because there was speculation about him weirdly, in retrospect, speculation about him having survived the shot. But also didn’t Wilson play a role in there? And Wilson’s interesting because actually you’ve got a small r republican problem because actually the elected person did not run the government. But wasn’t it his wife and his chief of staff that was actually running the government?

41:33 Gene Healy: Yeah, I think they pretty much shut the vice-president at the time out. Yeah, Wilson’s stroke comes up in the debates over the 25th Amendment. And what the legislators who crafted and ratified that amendment seemed to be envisioning was yeah, a… To back up, the 25th Amendment says that, provides for two means of removal of a president who is “unable to discharge the powers and responsibilities of his office.” One is voluntary. That’s usually… That’s section three. It’s usually invoked during colonoscopies where the president sends a letter to Congress and says, “While I’m under anesthesia, Dick Cheney is president or is acting president.”

42:32 Gene Healy: The second one that’s garnered so much discussion in the, since Donald Trump was elected, is section four of the 25th Amendment, which provides a means for doing it involuntarily. So the vice-president and a majority of cabinet officers or such other body as Congress may by law provide, decide that the president has become incapacitated, unable to discharge the powers and duties of the office. They send a notification to Congress and the vice-president steps in as acting president and holds that position until Congress sorts it out.

43:18 John Samples: But isn’t… Really, we’ve discussed this obviously. Isn’t this short of a Wilsonian-like situation? Isn’t this really just not operative? I mean it’s… ‘Cause the president can, or existing president that is physically able to move around, can keep coming back at you. It just seems like an invitation to disaster at the highest levels.

43:37 Gene Healy: Yes. When people talk about impeachment as a constitutional crisis, it’s nonsense. But if you wanna talk about the potential for a constitutional crisis, invocation of the 25th Amendment might actually court that kind of difficulty. You would have a situation. And some of the… Gene McCarthy and Bobby Kennedy envisioned this in the debate over the 25th amendment. You might have a situation with two presidents and two cabinets. There’s enough uncertainty in the language. While it seems clear that the ratifiers intended that after a declaration of incapacity, that the vice-president holds the reins until Congress votes, there’s some uncertainty about that. So you could have a situation where Pence sends the notification. Imagine Pence was willing to do this. Pence sends the notification. Donald Trump sends notification, “No, actually I’m just fine,” and then fires the whole cabinet. And then the Secret Service has to figure out who to frog-march out of the building.

44:58 Gene Healy: It’s a really… Impeachment itself is a pretty unwieldy remedy to executive incapacity or misbehavior. It’s definitely a lot more of a kludge and a lot clunkier than, say, a vote of no confidence in a parliamentary system. But compared to the 25th Amendment section four, impeachment would go a lot, presents a lot fewer problems. And on top of which the… This is… The sorts of things that the people using the 25th Amendment hashtag are talking about are not what the 25th Amendment was designed for. It was designed for Wilson, for Kennedy surviving the assassination. Some of the discussion involves scenarios like a kidnapped president. So, unable to discharge the powers and duties of the office means really unable, not “seems like you might do something stupid” when he’s discharging the powers and duties of the office. So I think this whole idea is fun to talk about but a non-starter.

46:13 John Samples: It’s a good point though, to me, interesting that you’ve made also in another aspect, which is that originalism isn’t just for judges. If we have an originalist reading of the 25th amendment, and there’s no reason why we shouldn’t have and why Congress shouldn’t try to do that, then we reach the conclusion you’ve just said. But also the term “high crimes and misdemeanors” at some level, and I think that’s part of your policy analysis, is also… The words are in the Constitution. They have meaning. All the logic of the originalist court theory applies to Congress too. There’s no reason they shouldn’t try to figure out what this means and how to apply it.

46:55 Gene Healy: Yeah. There’s a tendency to punt everything in the courts. But all branches, all members in each branch, have an independent constitutional responsibility, a responsibility to try to understand the words of the Constitution and to act accordingly. And I think that’s incumbent on Congress as well. So if you had an impeachment effort, I think this is something that’s clearly outside the scope of high crimes and misdemeanors. It’s not just Donald Trump, like Donald Trump’s stake example, but something that’s purely political. For example, there’s American University professor Allan Lichtman who was first out of the gate with a book about impeaching Trump. Among the charges that he outlines is the “crime against humanity of not taking global warming seriously enough.” Well, that’s a political… That’s… The president should not be impeached on policy grounds, on policy disagreements. There are other tools available to Congress to assert its will.

48:14 Gene Healy: And so, that’s… The idea that legislators themselves have a responsibility to try to figure out what high crimes and misdemeanors means and to act accordingly, I think, comes up also in situations like that, and not signing onto impeachment efforts that are not justified by the text of the Constitution.

48:42 Aaron Ross Powell: We’ve seen a flurry of calls for Trump’s impeachment. Quite a lot of them coming in before he took office, we had people calling for his impeachment. We’ve had books as you mentioned. We’ve had law professors writing up op-eds and articles all over the place. We’ve had members of Congress introducing articles of impeachment that haven’t gone anywhere. And if the Democrats pick up seats in November, we’re likely to see even more of that. Of the things that Trump has been accused of as impeachable offenses or have been offered as impeachable offenses, which ones do you think are maybe the most likely or the most kind of squarely within what you think are impeachable offenses? Is there anything there or is this all just kind of people upset that their guy didn’t win, or their gal didn’t win, and so kind of flailing for ways out?

49:50 Gene Healy: Well, I rather scrupulously try to avoid coming down on one side or the other in a lot of these things in the paper. But I’d say in terms of what’s been introduced so far, and what I think is likely to get most traction without saying whether I think it rises to the level necessarily, would be obstruction of justice. It is the first, the Comey firing. It was the first formal article of impeachment introduced against Trump in 2017. And I think that’s going to be the one that has the most legs. The… It’s one of the areas where you have the most presidential precedent. Nixon, the first article of impeachment. Clinton, the obstruction of justice.

50:54 Gene Healy: And particularly, if we keep hearing rumors periodically about whether Trump is going to decide to fire Jeff Sessions or Rod, Deputy Attorney General Rod Rosenstein and/or try to fire Special Counselor Robert Mueller, I think if he were to do the latter in particular, you would… That would be a case for impeachment that would definitely have legs. The Saturday Night Massacre, when Richard Nixon had Special Prosecutor Archibald Cox ultimately fired, proved to be the catalyst for impeachment, it’s really what drove impeachment in ‘73, ‘74. So I would say that that general area is where I’d look to.

52:05 Gene Healy: The issue of… Various people have made proposals, although I think only one article has been formally introduced so far about undermining freedom of the press. And these have ranged from people that say that… There’s some that cite Trump’s use of the term enemy of the people and fake news. The charges that are, of undermining freedom of the press that are based on Trump’s Twitter feed, in these terms, I don’t think are very persuasive. It’s sort of the, just a less articulate and clever version of Spiro Agnew’s attacks on the media, nattering nabobs of negativism. I don’t think calling the media fake news is an impeachable offense.

53:06 Gene Healy: When you do start talking about, and you’ve seen this in some of his tweets about broadcast licenses, about Jeff Bezos’ Amazon, Washington Post, shipping rates, then you start to get into certainly the president, it is, when you talk about important norms, the president should not be talking about using the power of the state to punish somebody that owns a paper that makes him unhappy. You might want to see… If it turns out that those comments, troubling enough in their own right, have a little more to them, that they’ve led to an effort to take action, there’s something more than the equivalent of shouting at the TV, then I think those would be solid grounds for impeachment. You wanna see like Richard Nixon didn’t… Article two, abuse of power, among the charges were abuse of the IRS, trying to turn the IRS against his political enemies. He didn’t actually have as much success with that as his predecessors did, or as he would have liked to, but he made serious efforts to obtain the tax returns and to order audits of his political enemies. And that’s an impeachable offense. And I think you can certainly make the case that an effort to, say, raise shipping rates for Amazon on grounds that seem driven by the president’s irritation with the Washington Post, would be an impeachable offense.

55:00 John Samples: This struck me that maybe one way to think about this that is wholly extra-constitutional, it’s not about the language, is that you could think of it this way: We’ve got a way to remove the president, particularly one in the first term, which is elections. So the real question in the first term about a president is, has this person done something that we really don’t wanna wait for the actual election to pass judgement on him, because it’s so dangerous, or he’s shown, it’s a sign that what he’s done suggests if we wait a couple years in any president, this would be really risky? Or the second version of it would be, if we let it… We can’t wait for the election, because if we let this go, then future presidents, it’ll become a new norm. It’ll become acceptable. And that’s really what you’re trying to get at here, those two things, is the current risk and the long-term norms. And then, sometimes you can push the language back into that, right?

56:06 Gene Healy: Yeah. There’s definitely a prophylactic, forward-looking element to impeachment. It is not there as much to punish bad actors as it is to remove threats. And one threat can be a current threat, the idea that… And this is probably one reason why, among many, that the Clinton effort failed. It’s a one-off. Now he knows not to fool around with the interns. [chuckle] He’s been burnt. But he wasn’t thought to represent a continuing danger in the way that, say, an abusive criminal president trying to turn the powers of the state against his political enemies would represent. But then there is also, as you point out, the idea of, well, if we never take this constitutional tool out of its plastic wrapping, if we never use it because we’ve come to think of it as a doomsday device instead of a safety valve, then you are stuck with the erosion of norms. There is no way to stop that slide without imposing some price for it.

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57:39 Aaron Ross Powell: Thanks for listening. Free Thoughts is produced by Tess Terrible. If you enjoyed today’s show, please rate and review us on iTunes. And if you’d like to learn more about libertarianism, find us on the web at www.libertarianism.org.