Welcome to the New Books Network.
Hello, and welcome to Madison's Notes, the official podcast of Princeton University's James Madison Program in American Ideals and Institutions.I'm your host, Laura Laurent.
And on this week, we have a repeat offender, Professor Keith Whittington, to discuss impeachment.Now, Professor Whittington was on Madison's Notes back in 2021 with our very first host, Nino Scalia, to discuss academic freedom.
And at the time, Professor Whittington was chairman of the Academic Freedom Alliances Academic Committee and the William Nelson Bromwall Professor of politics at Princeton University.
Since then, Professor Whittington has taken the David Boies Professor of Law at Yale Law School, where he is teaching and his scholarship spans American constitutional theory, American political and constitutional history, judicial politics, the presidency, and free speech and the law.
This episode is being recorded in early October while Professor Whittington is back to give a lecture on Princeton's campus with
Professor Stephen Collis of University of Texas at Austin, we are thrilled to have an old friend and colleague of the James Madison Program back on the show.
By the time this episode is published, you will be able to access the YouTube recording of that lecture, which I am sure will be an engaging conversation and an interesting addition to the conversation we are about to have.
So, Professor Whittington, welcome back not only to Madison's notes, but also back to Princeton's campus for your short visit.
Thanks, I appreciate being back on the podcast and it's always fun to be back on campus.
Awesome.Well, so on November 12th, you have a new publication coming out titled The Impeachment Power, The Law, Politics and Purpose of an Extraordinary Constitutional Tool, which will be the forefront of our conversation today.
And obviously, there's a lot of context around this subject and its relevance is quite clear given our current political climate.
But tell me what specifically inspired this version of the book and how you hope it will assist in the conversations and understanding of impeachment that we are currently experiencing.
Yeah, it feels a bit strange to think of impeachment law and politics as being relevant to current politics.But here we are.
I really initially became interested in thinking about impeachments while I was working on my dissertation in the early 1990s and was studying in part impeachments from earlier in American history, which I thought were useful in telling us something about how the constitutional system works more generally.
But I thought those were very much matters of the past, of historical curiosity and interest. but not necessarily of much contemporary interest.And little did I realize that we were about to embark on what has proven to be a new age of impeachments.
It's not the first time this has happened in American history.We have gone through other periods where we have sort of a wave of federal impeachments and the impeachment power gets used more often.
But then we've also gone through long periods where there's very little use of the impeachment power for years and decades.
So now we're certainly in a period in which the impeachment power is being used much more often, and it's being used in much more high-profile ways, targeting specifically presidents, although recently we also had a member of the cabinet impeached.
There's discussions of impeaching justices of the Supreme Court.
And so in that kind of environment where impeachments are sort of on the agenda and we are having to think seriously about what use this impeachment power might be for and how it should be used,
It seemed useful then to explore this at greater length.And so I want to talk about in the book issues that have come up in some of the recent impeachments and might come up in future impeachments as well.
But it tries to step back from the immediacy of any particular impeachment.
It's not a book about prosecuting Donald Trump or defending Donald Trump, but instead really trying to think about the impeachment power and how it works more generally, what kinds of principles ought to guide us as we think about this power.
how should we think about the ways in which the impeachment power fits into a broader system of checks and balances.So hopefully, it can be helpful if we continue to encounter impeachments over the next few years.
But hopefully, it will be equally helpful if we find ourselves thinking about impeachment again two or three decades from now.
I see.And I really appreciated your book because it did give a little bit more of an educational stance to the process, the application, the context of impeachment, its history.
When, of course, you know, in civic education, I remember learning about impeachment, but it wasn't the bulwark.
And so as we see it happening more frequently, as it becomes a hotter topic, I even found myself having some very basic questions about impeachment that felt very silly, but I was
thankfully able to find some of the answers in your book and some of which I might ask you today as well.
Well, we're sort of in a strange moment in that regard, too, right?I mean, as a as a generation of Americans, we have lived through more high profile impeachments, really, than anyone else in really all of American history and in many ways.
And those have probably been better publicized than what would have been true for any earlier generation of Americans.And so in some ways, you might imagine that we would already know more about impeachments than most.
We'd be natural experts because we've lived through so many. But I don't think that necessarily has been our experience, that the fact that we've lived through some impeachments hasn't necessarily led us all to be experts in the process.
And part of what we've learned about the impeachment power is that it's highly contested.There's lots of things to debate about it.And so even having seen it in action, it still is the case that there's a lot of
genuine uncertainty about what the impeachment power means, even just in terms of its basics, but also a lot of hotly contested features of the impeachment power, they're worth trying to think through more carefully.
Yeah, well, and I think it's not just, you know, the common citizen who is having trouble understanding it.
Sometimes we even, you know, we see members of Congress or the House of Representatives or even the president and everybody's sort of can be squabbling about what it means in the process of it.
So your book was a great clarification of a lot of those things.
Specifically, I'm curious though, before we really get into it, what are some of the biggest misconceptions that you're seeing surface among either your students or what is being published in the media about how impeachment is being handled and practiced in current situations?
Yeah, I think from my perspective at least, one of the big challenges about thinking about the impeachment power and how it tends to get discussed in the media is the extent to which we have in those media conversations, I think in particular, although you see it a lot in the way politicians talk about the impeachment power as well,
of really trying to convert the impeachment power into being very much a legal process rather than simply thinking about it as a political process as well.
And so cable news shows find themselves reaching for former criminal prosecutors to try to explain the impeachment power.
And of course, former criminal prosecutors have no particular insights into the impeachment power as such, and they try to translate then
a very unfamiliar set of constitutional mechanisms in something that feels more familiar to them, at least which is the criminal justice process.But the impeachment power fundamentally is a political tool.It's a constitutional tool.
And it's not an adjunct of the criminal justice process.It has some things in common in some ways with the criminal justice process.But it's also very distinct.
And so part of what the book tries to do is recover the impeachment power from a political perspective, try to resituate it within the context of constitutional checks and balances, and try to think about it as a kind of political tool.
and not simply a set of legal procedures.
And in that sense, take it away from the lawyers a little bit and return it, one might say, to the citizenry more generally or maybe more specifically to a political scientist, who I think, you know, bring to bear a slightly different perspective on some of these questions.
The other thing that I think is, you know, it's hard to say whether it's a misconception or simply part of what's contested about the impeachment power, but certainly part of what I found myself very frustrated by as we saw some of these recent impeachments playing out is the extent to which really quite extreme claims about the nature of the scope of the impeachment power, what counts as impeachable offenses, for example, found themselves getting lots of traction.
terribly surprising.This is, I think, what you expect in high-profile, highly politicized impeachments in general.Those who are the targets of impeachment are looking for arguments that will get them off the hook.
And among those is arguments that will narrow the scope of the impeachment power in order to say that whatever it is they're accused of doing falls outside the scope of that power.
But we saw that taking place during the Trump impeachments as well in which President Trump and his defenders
argue that what the president was being accused of simply were not impeachable offenses because they didn't fall within the scope of the impeachment power.
And part of the way in which that argument played out was, let's interpret the impeachment power very narrowly and the scope of the impeachable offenses extremely narrowly in order to exclude some things.And I think there are some
while there's clear utility in making those arguments for the purposes of immediate impeachment, there's some long-term real damage you can do to the constitutional system by buying into those arguments as how we ought to understand the impeachment power going forward.
So part of what the book is concerned about as well, besides thinking about the politics of the impeachment power and how it fits within the constitutional system writ large, is also trying to think about the law of the impeachment power and
how that, again, fits within the constitutional system of checks and balances and why it has the kind of scope that it has, why we have traditionally interpreted it in particular kinds of ways in order to cover a range of potential problems that the political system might encounter down the road.
And I think we should be very cautious about trying to read the impeachment power so narrowly and so rigidly that it can no longer function in ways that we might need it to function in the future.
And in your book, you state that the power of impeachment is such a stronghold for Congress specifically and how important it is in the checks and balance systems, which we'll get into later.
But I find this very interesting as we are conversing about impeachment. that because the education around it or our awareness of it isn't as apt as it ought to be, we are including it in conversations about criminal justice.
Can you give us a little bit more of a clearer understanding how the impeachment process is different from a criminal proceeding and specifically in regard to the Constitution and how it is included in the Constitution and how that affects how it is handled in regard to criminal cases?
Yeah, there are some features of the impeachment power that are somewhat analogous to what we might think of as a criminal justice process and there's utility in thinking about those analogies.
But we also don't want to confuse the fact that we're thinking about analogies.We're not thinking about things that are strictly on all fours with the impeachment power as such.
And so it's sometimes useful to think about what the House of Representatives does in the impeachment process. as comparable to what a grand jury does in a criminal justice process, for example.So they investigate some initial charges.
They think about how credible and plausible those charges are.They bring forward charges and allegations that can then be prosecuted and brought to trial.
There's a process that occurs within the criminal justice process that makes similar kinds of steps and there's something that occurs in the impeachment process that's also making those steps.
of how do you move from their loose allegations into something that is more concrete and specific and we think is somewhat credible such that we can move forward with it.
And there are some useful analogies, again, to be drawn there between what grand juries do and what the House of Representatives does.
Likewise, the text of the Constitution itself suggests that there are some analogies between a criminal justice trial and the kind of trial that occurs in the Senate.
So the Constitution refers to what the Senate does relative to impeachment charges as being a trial.And so there's an expectation that we are bringing facts and law and evidence to a set of charges.
And then we're making an assessment as to whether or not an individual is guilty of those charges or not and potentially then is convicted or acquitted of those particular charges.
And moreover, the specifics of the impeachable offenses, the Constitution refers to at least bear some overlap with things that might be more familiar from a criminal justice process.So it refers to treason and bribery.
which are actual criminal offenses as being potentially impeachable offenses as well.And then it uses this language of high crimes and misdemeanors as a catch-all for additional offenses.And that sort of sounds criminal.
But again, all that's really fundamentally still an analogy, that part of what the House is doing when it's first investigating charges against an officeholder is not trying to figure out, did someone commit a criminal offense?
They're trying to figure out whether or not somebody engaged in offenses, took actions, engaged in conduct that is properly understood as an impeachable offense.And that's fundamentally a political judgment.
It's a judgment about whether or not an officer has engaged in conduct that's incompatible with them continuing to hold the office that they hold.
And that may involve them having committed some criminal offenses, but it may involve them having committed offenses that we would regard as purely political. in some broader sense.
And likewise, that's what the Senate has to assess and evaluate as well.
And of course, it's worth bearing in mind that the Senate trial departs in very important ways from anything we would expect to take place in a criminal justice system more generally.
Senators have conflicts of interest when they sit in an impeachment trial.They have partisan attachments sometimes, for example, to the target of the impeachment.They may have personal attachments.
They may have already made up their mind as to what they think the right outcomes are.They may have political interest in what the outcome of the trial might look like.
All of which would be devastating if we were to find that to be the case of judges or juries in a criminal trial context, for example, but it's just part of what a constitutional system of the impeachment power looks like.
There's some useful guidance we can take from a criminal justice process and sometimes it's easier to help explain the impeachment process by reference to the criminal justice process.
But we shouldn't lose track of the extent to which the impeachment process is a fundamentally different process.It's a political process designed to deal with political offenses and political misconduct of a particular type.
And it's limited to imposing political punishments as a consequence.You can't throw somebody in jail through the process of convicting them in a Senate trial.All you can do is remove them from office.
And then if they have also committed criminal offenses, there's an entirely different process with an entirely different set of institutions that you would have to appeal to in order to pursue that, and that's the ordinary courts.
And so it's really the impeachment process operates on a different track for a different set of offenses than what we'd expect to see in the criminal justice process more generally.
I'm curious in regards to the types of impeachable offenses, which of course you do talk about in your book, but is very interesting.So I'm hearing that it's obviously more political engagements that are considered under the impeachment process.
What about offenses that are criminal but aren't necessarily associated to the role of the individual being impeached in regard that, you know, what the Constitution says is high crimes and misdemeanors.
But it doesn't necessarily say high crimes and misdemeanors associated with their role.How do you make the distinction between an impeachable offense and a criminal offense?And when do we choose to use impeachment versus a criminal proceeding?
Yeah.So it's a terribly important question as to how we think about this and what the proper scope is.
And one of the dimensions on which we would be concerned is, is the conduct in question one that involves the office or is it conduct that is purely private in some sense?
That is, we can think of some kinds of misconduct that a government official might engage in. that is misconduct that involves the abuse of their own governmental powers, for example, or the corruption of their governmental powers.
So the classic instance the Constitution itself refers to of bribery is precisely that you're corrupting the use of your governmental powers by inappropriately taking bribes in order to engage in some action.
And there have been lots of lower court judges who haven't been impeached and removed over
precisely because they were engaged in corrupt behavior once or another, whether we think of it as strictly a situation of taking bribes or something else that is comparably corrupt but involves how they're exercising their powers of the judgeship
and the ways in which they are not pursuing the public good but instead serving their own personal interests by allowing their decisions to be compromised by material gain in various circumstances over time.
So, clearly, one kind of thing we want to capture is – through the impeachment power are these instances of abuse of power.
In some ways, those are really the classic purposes for the impeachment power because if we go back to what the founders are talking about in Philadelphia, they're thinking about, do we want to include the impeachment power in the US Constitution in the first place?
part of their concern is precisely look at the presidency and think that the president has this relatively long term of office from their perspective, a four-year term of office.He has an electoral check.
And so at the end of that four years, he has to stand before the people and be judged for his conduct.
And they may choose to remove him at that point because they're unhappy with his conduct, including the possibility he's engaged in gross misconduct during the course of his term of office.
But they also recognized that four years is an awful long time to leave somebody in power who may be abusing their powers in very serious and fundamental ways.
And so they thought you needed some kind of mechanism in place that was capable of removing that kind of powerful government official from their office more quickly in extreme situations where – and the thing that they most have in mind are precisely instances in which
Somebody like a president is abusing the powers of their office per se and you need to disempower them quite quickly and the impeachment power is the mechanism for doing that.
But we've also found through practice and the founders certainly didn't rule it out, thinking that within the scope of the things we might want to remove an officeholder for is not just the conduct they're engaged in by exercising the powers of their office.
but potentially private misconduct of various sorts.So again, to go back to sort of an example of judges, and like I said, we've had more judges impeached than we've had other kinds of officials impeached over time.
There are instances of judges being impeached for things like engaging in private tax evasion So, in that case, we have a criminal offense.But it's not a criminal offense that's attached in any way to how they conduct their office per se.
So it's not taking bribes.It's not about how they conduct their office.Simply on their personal taxes, they're engaging in criminal activity.
We think it's fundamentally incompatible with continuing to serve as a judge and sit over other people's criminal cases, for example, for you yourself to have engaged in gross criminal misconduct.
And we might think there are other things that a sitting judge might do as well that would be grossly incompatible with their continuing to occupy that office.
So if we saw a judge who became flagrantly partisan in his personal activities, for example, so a judge who went around the country campaigning for a sitting president, for example, and started a podcast in order to talk about how much he loves the sitting president and thinks we ought to reelect the sitting president,
We would think that would be grossly incompatible with a federal judge continuing to hold their office because of that kind of conduct.In that case, conduct that's neither criminal nor is it associated with their office per se.
But we think it might be incompatible with then continuing to hold their office.
Likewise, we might think a judge who engages in sexual harassment, for example, of employees at the courthouse, which may not rise to the level of being criminal offenses per se, may not involve the specific use of their office per se.
But nonetheless, we might think a judge who is engaged in that kind of behavior is behaving in a way that is grossly incompatible with then continuing to occupy the office of a judge.
That may be easier to make those decisions in the context of judges than we might think of than other kinds of government officials.
So what kind of conduct might a president engage in, for example, that we would regard as grossly incompatible with him continuing to be president?
I think it's at least possible to imagine various kinds of personal conduct that's neither a matter of engaging in criminal offenses nor a matter of how they're exercising the powers of their
that we might think is so grossly incompatible with their continuing to hold the office of the presidency that it becomes necessary to remove them from that office even before the next election.So the impeachment power is a flexible tool.
It doesn't have really firm boundaries and it requires the exercise of a fundamentally political judgment to make that determination about is the conduct that we're confronted with, is the behavior that we're confronted with.
behavior that has rendered this person who currently holds office incapable of continuing to hold that office and exercise the kind of public trust that we have put in that person.
And one reason why we do that, we find ourselves in that situation with judges because, of course, there's no other way of removing judges.
Whereas when we have cabinet officials, for example, who find themselves mired in scandal because they've engaged in some gross personal misconduct, The result is the president fires them or they have the good sense of resigning.
So we don't have to go through that process of impeachment.
But if you had somebody who was so stubborn or so supported by the president who nonetheless occupied a cabinet office but engaged in gross personal misconduct of various sorts, we can likewise imagine saying, okay, well, that person needs to be removed from that position.
Even the president is unwilling to do it.Congress may need to step in and enforce the issue.
Yeah, I think it's quite understandable as to why we've seen more judges impeached than other individuals.
And I'm curious, because impeachment, it seems to me, and this is my interpretation, so please give me your own, that impeachment, because of its political flexibility, it's becoming almost a political weapon of sorts, particularly in the partisan context of our moment.
Tell us more about the initiation of an impeachment, and is there something
prior to impeachment that can help assess whether or not an impeachment brought to Congress is valid or is following along the correct lines prior to it becoming an enormous exercise of Congress to have to go through because it's a very laborious process.
So is there something prior to impeachment that helps us measure and ensure that we are conducting ourselves appropriately.And then once that's decided, what is the initiation process of impeachment and how is that started?
Yeah, so certainly there's a danger of the impeachment power being weaponized against other government officials.
The founding generation was aware of that as well as part of the debate they were having over the impeachment power and whether or not to include it was a fear that it could be used inappropriately.
The impeachment power itself can be abused and their most immediate concern in that regard is that
If you entrust Congress with this impeachment power, and again, they're primarily initially focused on the presidency as what's motivating them, part of their concern is there is a risk that Congress might use that power to undermine the independence of the presidency.
And they're precisely trying in Philadelphia in 1787 to establish an independent presidency that can stand apart from Congress.They don't want the president to be subjugated to the will of Congress.
And so they recognize that if you don't design this properly,
You could find yourself in a situation in which you've created this weapon that Congress can then use to weaken the presidency in ways that are inappropriate for the workings of the constitutional system.
What they did not think about particularly though were political parties because they didn't anticipate political parties would arise but it didn't take very long before political parties did arise and then pretty quickly, the same generation
because it happened so fast, find themselves worried not only about this fundamental separation of powers problem, what if Congress weaponizes the impeachment power to undermine the other independent branches of government, but they also worry about the partisan problem.
So what if a partisan Congress weaponizes the impeachment power to go after their partisan enemies in the other branches of government?And can the impeachment power be abused in that fashion as well?
And they were right to worry about both those things.Both of those things are genuine and real concerns.
And so as we think about how the impeachment power ought to be used currently, certainly legislators who are acting in good faith and are conscious about their constitutional duties ought to be asking themselves the question at least of if these same kinds of charges or allegations that are being brought to me about
some sitting government official were brought to me about a sitting government official I was more sympathetic to on policy or political grounds.
So if, for example, instead of these charges being brought against a sitting president of the other party, they're brought against a sitting president of my party.
would I still feel like these are inappropriate for the president, it's still necessary to engage in impeachments in order to respond to it or not.
And so there is a sort of gut check that members of the House ought to go through in trying to think about, I think, particularly from a partisan perspective in our current environment
Is this a kind of offense that you would still feel strongly about if it was somebody you were otherwise sympathetic to, that the charges are being brought more generally?
But beyond that, I think the fundamental questions for House members to be thinking about, of course, is how true do the charges seem?So the very first question both the House and ultimately the Senate has to confront is, are these things even true?
For some impeachments, that's a pretty clear-cut question, that the facts really aren't in dispute.And so all the argument becomes about is this an impeachable offense or not or those kinds of things.
But in lots of other cases, the facts themselves are actually not clear.
And part of what you're going through in the initial impeachment inquiry in the House and then ultimately in the Senate trial is simply trying to say, OK, even if all this turns out to be true and we all recognize it would be an impeachable offense if it turns out to be true,
we still need to determine factually, is it true?
And so the first responsibility of the House, of course, is to do enough legwork to convince themselves that this is true and hopefully convince themselves that the facts that are being alleged are true, not just in a sense that this is a very close call and maybe it's kind of true and it's true enough, we can move forward
But ultimately, be thinking ahead to the Senate and the trial, ultimately be thinking about the larger political system.Is this going to be true enough that we can persuade the Senate to convict?
Is it true enough we can persuade the public that we're doing the right thing under these circumstances?
But even if the allegations in front of them are true or at least they've convinced themselves there's enough evidence behind them to think that they are true, there's still also a question about Are these genuinely impeachable offenses?
Do they rise to the level?Are they posing the kind of misconduct that we need to go through this process in order to try to respond to it?
Or is this unfortunate behavior or scandalous behavior but not necessarily the kind of behavior that we would think would justify trying to remove somebody from the position that they currently hold?
And I think the other thing I would emphasize in the book and we ought to be thinking about from a more political perspective is also trying to think about is the impeachment power the best way of addressing the problem in front of you?
And so even if you have allegations brought to you as a house member, for example, and you are convinced that those allegations are in fact true,
Moreover, even if you are convinced that if those allegations are true, one could properly impeach somebody and remove somebody on the basis of those allegations.There's still a question I think whether you ought to proceed with the impeachment.
And part of what you have to be thinking about at that stage is, will the country be better off if we go through this process than if we don't?Are there other tools and remedies that might be available to alleviate the problem in front of us?
So, for example, are we on the cusp of an election and the voters will take care of this for us?If what we're talking about is a president, for example, can we persuade the officeholder to resign without having to go through an impeachment process?
Are there other tools that might mitigate the kinds of harms that we think are occurring that don't require actually removing the government official from power and the like.
And so not only are there the immediate questions associated with the impeachment power per se, but I think there's also a range of additional questions members of the House ought to be asking themselves about.
Is this an appropriate moment and an appropriate purpose for using the impeachment power under these circumstances?Or is there something else we could be doing?
that would address the problem that we think we're confronted with that might be better even than trying to turn to the impeachment power in order to try to address that problem.
I'm curious, why have we seen an uptick in the application of the impeachment power if there are these other options?And it hasn't always been necessary.Is it an increase in political corruption?Is it an increase in access to information?
Yeah, what is spiking the application of this process?
I guess I'm skeptical that there's actual increase in corruption.Undoubtedly, there's sort of a baseline level of corruption that does occur out there.
And there have probably been moments in American history where there has been more corruption than at other times.
And we have, I think, seen some spikes in impeachment inquiries, at least of judges, for example, but sometimes also executive branch officials for corrupt behaviors of various sorts.
And those inquiries don't always get to the point even of the House voting on articles of impeachment because oftentimes the inquiries are enough to convince the target, maybe they'd be better off resigning rather than allowing this to come through all the way to fruition.
So if you've been caught red-handed such the facts are pretty clear, you've engaged in some kind of corrupt behavior.
When confronted with that and realizing you've been caught in that sense, many government officials, whether judges or executive branch officials or whoever, will make the calculation they'd rather not fight this through the whole impeachment process, so better to go ahead and resign under those circumstances.
And so one thing that impeachment inquiries can do on their own is put pressure on government officials to say, look,
If you continue to hold your office and refuse to resign, you're gonna be exposed for the wrongdoing that we think you've engaged in.
And potentially, we're ultimately going to drag this out, but we're gonna be able to get through Congress, we're gonna get the votes in the Senate to actually remove you under those circumstances.
So I'm skeptical, I think, that we've seen a genuine uptick in corruption that feeds this.I think part of what we are seeing, though, is greater polarization in our politics more generally.
That makes it much easier to imagine that government officials of the other party in particular are engaged in behavior that you find yourself thinking is way out of bounds in a less polarized time. You might be more forgiving of that.
There may be more accommodations made for those kinds of disagreements.It may be easier to sort of think, oh, well, yeah, we have our disagreements, but they're not that severe.
Whereas I think it's quick in our polarized environment to jump to the conclusion that when we see something that we think somebody else is doing on the other party that's wrong and incorrect, that we go further and think it's more outrageous, way beyond the pale that they've engaged with it.
And moreover, it's intolerable that that person be allowed to continue to hold the office under those circumstances.
So I think polarization has sort of ramped up our assessment of misconduct and how we want to respond to misconduct when we perceive it.I think the other thing that has genuinely changed quite rapidly
in our current moment is I think some of the political incentives around impeachment have changed.
And so one of the lessons that I think members of both parties learned through the Clinton impeachment of the 1990s was this could feed a real backlash against members of Congress for pursuing an impeachment.
So the Republicans in the House I think realized pretty quickly having impeached President Clinton that this was not going to help them politically.Instead, it was going to harm the party.
And as a consequence, the Republicans in the Senate were very eager to get this over with and get through the impeachment process as quickly as possible.
And I think coming out of that process then, politicians in both parties thought that part of the lesson with that was that the politicians who are bringing impeachment charges forward are likely themselves to be punished by
the voters, and so better not to do it.
I think Nancy Pelosi, as Speaker of the House during the Trump presidency, was continuing to be influenced by that kind of lesson of looking back on the Clinton years and thinking, this will not play well for the Democrats if we continue.
I think one thing we learned during the Trump presidency, on the other hand, is that that was true in the 1990s.It's not true anymore.The media environment has changed.The partisan base of politics has changed.
And the funding mechanisms of politics has changed.And so I think now there's... lots of incentives if you are a member of the House of Representatives to pursue an impeachment precisely because it will get you more attention from partisan media.
It will get you more small donations from a partisan base.It will heat up excitement from activists within your base.
And so if you're a member of the House of Representatives, being out front to try to seek impeachment charges against an unpopular figure of the other party is something that you're going to be rewarded for.
And as a consequence, I think we have a lot of political incentives now floating around the system that might encourage the House to try to at least pursue impeachments through its own chamber, even if it's not gonna necessarily be successful in the Senate.
And so, given that, I would expect we'll continue to see, you know, serious consideration of using the impeachment powers in years ahead, even if an outside observer would look at some of those impeachment charges and think,
you know, maybe this doesn't really rise to the level where we ought to be talking about impeachments.There'll be incentives to talk about impeachment.
Given your experience and your legal background, do you find that the impeachment power as it's expressed in the Constitution and given the current evolution of political motivation and incentives, is the constitutional representation of impeachment
still powerful enough?Does it still fulfill its goals?
Is there something missing or is there something that ought to be done to change the dynamic of impeachment such that its goals can more easily be met or that the incentives are not so strongly favoring such a political exercise of it?
I think there's good news and there's bad news in this regard.
The bad news in some ways is the impeachment power is more difficult to use than probably the founders would have hoped it would be in the sense that if you are pursuing an impeachment of a very high-profile figure,
say, not a trial court judge, but instead you're pursuing a cabinet member, you're pursuing a Supreme Court justice, you're pursuing a president of the United States, for example.
The rise of partisanship has meant that even a high government official who is engaged in quite genuine misconduct is in a position in which they can rally a lot of support to their side.
and is in a position where they can fight those charges through both the House representatives and ultimately through the Senate.
And so while the founders might have hoped that Congress would be very deliberate and sober-minded and capable of taking action when they see a president, for example, engaged in genuine misconduct,
Partisanship has really altered those fundamental calculations and fundamental forces in ways that will always make it extremely difficult to remove high officials even when they're caught dead to right engaging in very serious misconduct, for example.
So that's bad news from that perspective.The impeachment power is probably a less effective tool for remedying misconduct than the founders might have hoped.
The good news, on the other hand, is we have found lots of other tools that are pretty effective in lots of other circumstances.
And the founders also probably had the wrong psychology for thinking about how misconduct does likely occur within the constitutional system.
So from a political psychology perspective, I think the founders envisioned circumstances in which if you observed misconduct by a government official,
That's probably a sign that that person is disposed to engage in misconduct, that they have evil intentions, evil habits.They don't have the kinds of virtues that you'd want from an officeholder.
And under those circumstances, once they have revealed themselves to be fundamentally flawed in that way, it may become imperative to want to remove them from office in that sense.And so they may have thought that
That kind of misconduct ought to be relatively rare if we set up a good system for selecting government officials in the first place.
But when we see some examples of misconduct, we ought to want pretty quickly to remove that person because they can't be trusted to remain in their position.
I think one thing we've learned over time is that's sometimes true of these examples of misconduct and corruption, again, is sort of a classic instance of that.
Once you observe somebody taking bribes, you probably don't want to leave them around taking bribes because they'll probably do it again.But in lots of other circumstances,
We find that things we might think of as misconduct may be one-offs, that government officials can nonetheless be trusted to continue to perform their duties in reasonably good ways.And what we really need to do then is not
worry so much about how do we get this person out of power as how do we fix that particular instance of misbehavior.And we've developed tools like, for example, judicial review precisely to deal with that.
So if we see a president, for example, engaging in activities that we think are unconstitutional or illegal, our tendency is to file a lawsuit rather than file articles of impeachment.And lawsuits have proven to be generally effective.
Judges can get involved, they can assess whether or not the president is actually engaged in a way that's inconsistent with the law, and then they can remedy those violations without necessarily leading us to think, okay, well, now that we've shown that this president has, for example, engaged in some unconstitutional or illegal or unlawful activity, we need to immediately remove them from power because they're a tyrant in waiting.
Instead, I think we've learned that... There's disagreements about how to operate the system.It's possible for people to make legal mistakes in various ways.It's possible for people to exceed and abuse their powers in various ways.
But it's not necessarily the case that the only way of dealing with that problem is to think that the officeholder who's engaged in that kind of behavior can't be trusted and needs to be immediately removed.And so we need a tool that can remove them.
Sometimes you just need a tool. that is much more surgical and can focus on the conduct itself in question.
I'm curious, it'd be hard to wrap up this conversation without asking about the Supreme Court statement or the Supreme Court ruling in early July about criminal liability for President Trump.And I'm curious, how does that ruling specifically affect
our understanding of impeachment and how it is the impeach, you know, trying to impeach a former, former sitting president or a former congressperson play into this?I know it's a very large question.We don't have too much time.
So I apologize that that's my last one.But please share with us how you see that playing into our conversation on impeachment.
Yeah.So just to set the stage a little bit about the nature of President Trump's arguments.So the impeachment power, as it's written about in the U.S.Constitution,
specifies that officials who have been convicted in the Senate on impeachable offenses can also still be subject to ordinary criminal charges and a criminal justice process.
And part of their concern is to make it clear, one, that the Senate can't go beyond the ability to remove somebody once they've convicted them and impose some kind of criminal sanction on that person, but also to emphasize
that it is possible to hold somebody criminally account for the same behavior that may have also have gotten them impeached and removed from office.
President Trump then wanted to spin that into an argument that said, well, look, I was acquitted in the Senate of these charges and if I've been acquitted of charges in the Senate That means I can't be held criminally liable in the ordinary courts.
And the Supreme Court quite properly said this is a complete misreading of both the structure and design of the Constitution and a misreading of the nature of the impeachment power itself, that the Senate did not acquit you of criminal charges.
The Senate acquitted you of impeachable offenses.And so the criminal justice system operates on a completely different track.
The charges that are being brought in a criminal justice system are completely separate charges even if they may be grounded in the same behavior that might have gotten you impeached.The legal charges are different and distinct.
And so we should think about the criminal justice process as being involving different charges in a different track than impeachable offenses.And so fortunately, the court was
clear that they ought to operate on separate tracks and so it didn't mess up how we think about the impeachment system itself.
And so hopefully going forward, we can continue to, I think, properly think that there's behavior that a president, for example, might engage in that may be criminal or may not be criminal that might subject them to the impeachment power.
But if it's criminal behavior, It may also subject them to criminal charges.
And then there's a separate question which we don't need to get into for our purposes and is more central to the court's ultimate concern in the Trump versus United States case, which is, is it even possible for a sitting president, while exercising the powers of their office, to have committed a criminal offense such that they can then be criminally punished for it?
And the court clearly tried to. limit the range of situations in which that might be true.
But even if the court did that, and even if that makes it harder to prosecute a president or former president in ordinary courts, it shouldn't actually have consequences in terms of reducing the applicable scope of the impeachment power itself.
Thank you.That's that's very clarifying.Well, Professor Whittington, thank you so much for coming on to today's episode.It's been very educational, very interesting.
And for all of our listeners, I encourage you to check out his new book if you're interested in getting some more clarifying, some clarifying education around this topic.
Thank you very much.I appreciate you having me.
Thank you for tuning in on today's episode of Madison's Notes.
If you are interested in listening to Professor Whittington's earlier episode from 2021 or the public lecture with Stephen Collis, which is happening in early October on Princeton's campus, make sure to check the show notes.
Professor Whittington's new book, The Impeachment Power, will be available on November 12th of 2024.And as always, you know where the buttons are to like and subscribe and send us a DM or a comment with your thoughts.
I'm Laura Laurent and this has been Madison's Notes.
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