What to Do When a President Believes He's Above Justice

My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution."
--Texas Congresswoman Barbara Jordan, Statement on the Articles of Impeachment (July 25, 1974)

Impeachment is not a constitutional crisis. Impeachment is the cure for a constitutional crisis. Like any antidote, it must be employed judiciously. When the crisis arises, however, patriots cannot be cautious about utilizing the strong medicine that was conjured in the summer of 1787 by the authors of a constitution that was written with an eye toward averting the elected despotism of a president who might conspire to make himself "a king for four years."

The wisest of the delegates who gathered in Philadelphia, just four years after their rebellion had seen off the rule of King George III, were well-aware that their imprecise efforts might forge not just a new nation, but a new approach to governing. They well recognized the vulnerabilities of a project that experimented, however tentatively, with the revolutionary prospect of democracy. They worried, as Lincoln would decades later, about "whether that nation, or any nation so conceived, and so dedicated, can long endure." Above all, they recognized that their project of replacing the rule of man with the rule of law would be threatened by what George Mason described as the "easy step to hereditary Monarchy." To avert it, Mason warned, "No point is of more importance than that the right of impeachment should be continued."

It would, Mason suggested, provide an eternal answer to questions that plagued the convention as it pondered the presidency: "Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?"

Mason placed his faith in a rigorous system of checks and balances that was enforced, ultimately and definitively, by the power of the U.S. House of Representatives to impeach a president whose continued tenure threatened the republic, and of the United States Senate to remove the offending officeholder.

Impeachment was never meant to be about crimes and punishments. It was intended at the founding of the American experiment, and should be so understood today, as a remedy for the monarchical tendencies of men who answer Mason's questions differently than did the Virginian and his compatriots.

Donald Trump is such a man.

In the spring of 2018, as the 45th president of the United States and his legal minions scrambled to limit the scope of questioning of the commander-in-chief by special counsel Robert Mueller, Trump revealed himself. He insisted that the deputizing of a veteran lawman as an investigator of monumental concerns regarding manipulation of the electoral and governing processes by foreign powers was "totally UNCONSTITUTIONAL!" Trump claimed that he cooperated with the inquiry not out of respect for the laws of the land, but because he chose to do so as one who claimed to "have done nothing wrong." At the same time, Trump asserted that he retained an "absolute right" to pardon himself should the heat of official scrutiny grow too intense.

These were not the words of a Democrat or a Republican. They were monarchical words, uttered by a man whose tenure had strained even the most liberal interpretations of executive authority. Now, this man was asserting that he was above justice. And, yes, he was doing so as the man who, by virtue of his position, could commit the most extensive injustice.

These are the rough outlines of the constitutional crisis that the founders feared. Our contemporary media and political elites recognize its contours. They know the sickness is upon us. Yet, they choose, out of quivering fear and overwhelming incomprehension, to reject the constitutional remedy. After too many years of making too many apologies for an imperial presidency, too many of those who define our discourse have lost any real sense of the anti-royalist "spirit of '76" that Jefferson asserted in his final letter should forever serve as "the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government."

The author of the Declaration of Independence was a flawed man who can be criticized for missteps and misdeeds--as can all of the founders. Yet Jefferson, a man of the world who had traveled more broadly than his revolutionary co-conspirators, was surely right to assert that ignorance could bind not just human beings but nations. If we do not recognize the threat posed by a president who imagines himself to be above the law, or by those who suggest that this man's tenure may not be interrupted by the subpoenas and the investigations and legal requirements that demand the respect of all other Americans, then surely we have abandoned the most basic premises of the American experiment.

The authors of this vital text [The Constitution Demands It: The Case for the Impeachment of Donald Trump] refuse to accept so perilous a surrender. They seek to burst the chains of our contemporary superstitions regarding impeachment and to restore a proper understanding of its role in maintaining the right balance of American governance. Misguided people who imagine that liberty and justice for all can long survive in a circumstance where a president places himself above the law fret about the political consequences of addressing a constitutional crisis with a constitutional remedy. They foolishly imagine that it is better to wait a lawless presidency out, with faint hope for better results on some distant election day. They refuse to recognize that each failure to demand necessary accountability invites greater abuse and diminishes the prospect that accountability will ever be achieved. When human beings who are ailing receive prescriptions for curing medications and then refuse to take those medications, we are horrified because we know that these choices may lead to their deaths. What we must understand is that republics are similarly vulnerable. They too can die for lack of proper treatment in moments of emergency.

Ron Fein, John Bonifaz, and Ben Clements recognize our predicament, and they call out for us to address it with the courage of a nation that seeks to heal itself. They do not do this for purposes of politics--indeed, politicians for the most part fear impeachment. Nor do they do this for purposes of achieving power--as these authors are dissenters who have frequently sacrificed gain in order to assert constitutional certainties that they know to be true.

The authors of this book have been about the business of defending the Constitution for many decades now. They know of what they speak, especially in matters of presidential accountability. They choose their words deliberately, with an understanding of the social and political demands that attend any call for an impeachment process--and of the particular demands that attend a call for an impeachment process that would hold to account so unprecedented and so reckless a figure as Donald Trump. They are precise in their assessment of the high crimes and misdemeanors that might form the basis for this process. And they are equally precise in their explanation of its urgency.

Just as George Mason answered his essential questions of 1787 with an argument that the power of impeachment must be outlined in the Constitution, so Fein, Bonifaz, and Clements answer the essential questions of 2018 and 2019 about the application of that power. They recognize and respect legal inquiries into alleged wrongdoing by the president and his associates. Yet, they remind us that impeachment is a political process--not a legal one--and that it must play out in the Congress as opposed to the courts. They assert, correctly, that the Congress does not need wait for Robert Mueller to finish a report, or for Donald Trump to pardon those who might be implicated--up to and including himself. Sufficient evidence of wrongdoing has already been assembled to justify--indeed, to demand--the opening of a congressional investigation into whether this president shall be impeached.

As the evidence is sufficient--and no reasonable observer would deny that it is--then why not simply pen the articles of impeachment and do the deed immediately? It is in the answering of this question that Fein, Bonifaz, and Clements display their genius, and the genius of this book.

Impeachment is best understood, they remind us, as a process with many moving pieces. It is not the work of one man or woman, not the project of a moment. Rather, it is an expansive undertaking that works best when it draws many voices into a serious conversation about wrongdoing and accountability.

There is nothing wrong with individual members of the House proposing articles of impeachment. Some of the most honorable members in the long history of the chamber--Father Robert Drinan of Massachusetts, Pete McCloskey of California, Bella Abzug of New York, Henry B. Gonzalez of Texas--have done just that. Some of the most honorable members of the 115th Congress (including Steve Cohen, the Tennessee Democrat who serves as the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice) have done the same. The current initiatives serve a purpose; they outline appropriate objections and remind Americans that at least some members of Congress are fully prepared to honor their oaths to "support and defend the Constitution of the United States against all enemies, foreign and domestic." But it is unlikely that the articles already proposed will form a final congressional indictment against Donald J. Trump.

The articles that might accomplish this necessary work are most likely to emanate from the House Judiciary Committee. There is a reason for this, and it is not just a matter of following the traditions and utilizing the infrastructure of the Congress.

Keep in mind that the point of impeachment has always been to address the abuses of executive authority.

Because impeachment is a political process, it must develop in the political context of a Congress made up of members who are not always courageous, who are invariably calculating and who are easily distracted in even the most urgent of circumstances. Three presidents have been seriously targeted for impeachment by the House. Two were impeached, and then acquitted by the Senate. One was at the brink of impeachment--following the decision of the House Judiciary Committee to support three indicting articles--and chose to remove himself before trial. There are those who argue that the resignation of Richard Nixon upended the impeachment process, but anyone who understands the point of a system of checks and balances will recognize the absurdity of this claim.

Nixon was threatened with impeachment and removed himself--thus ending his abuses of power and restoring the proper functioning of the office of the presidency. By any reasonable measure, that was a successful application of the constitutional remedy. Keep in mind that the point of impeachment has always been to address the abuses of executive authority that might see a president assume the mantle of an "elected despot." Whether a president is impeached and convicted or simply resigns in order to avoid inevitable impeachment and conviction, the constitutional crisis has been cured.

Thus, the American who can most justifiably be said to have continued the right of impeachment as George Mason and his compatriots intended is Peter Rodino, the former chairman of the House Judiciary Committee who, upon his death at age 95, was recalled by The New York Times as "an obscure congressman from the streets of Newark who impressed the nation by the dignity, fairness and firmness he showed as chairman of the impeachment hearings that induced Richard M. Nixon to resign as president."

Rodino was a Democrat and Nixon was a Republican. Rodino's Democrats had majorities in the House and Senate in 1974. Yet, the savvy veteran of the rough-and-tumble politics of New Jersey's Essex County well understood that, in order to hold Nixon to account, he was going to need cautious House Democrats and skeptical House Republicans to accept the necessity of impeachment. This wasn't about building a narrow coalition in order to clear the constitutional hurdles of a simple majority vote in the House and a two-thirds supermajority in the Senate. This was about building a case that was convincing to the American people. The case that Rodino and his Judiciary Committee colleagues crafted over many months, with hearings that entertained a wide range of offenses but finally focused on a few of the most egregious wrongs, was sufficiently compelling to secure Republican support for three articles of impeachment and to send Nixon packing.

These are different times. There are plenty of pundits and politicians who now assert that our partisanships have become so great that even a Peter Rodino could not make an impeachment process work. If that is the case, then the United States has not continued the right of impeachment as a whole instrument of the Constitution. The licensing words may remain in the document, but they are merely assertions of an ideal--not a practical tool for making real the founding promise of accountability for errant executives.

If we have reached such a point of compromise, then the American experiment is finished. Donald Trump may be voted out of office after one term. Or he may retire after two. Better presidents may come. Or worse. But the vision that ours would be a government of laws, not men, will be finished. We will, like the monarchies of old, be able to hope for no more than a "good king." We will be more akin to the monarchies of old, which might have produced a "Bad King John" or a "Good King Richard," but that always had kings. And those kings ruled by "divine right," rejecting the rule of law in favor of rule by fiat--just as Donald Trump does when he suggests he cooperates with inquiries not out of respect for the rule of law but because it occurs to him that he has "done nothing wrong."

Whether a president is impeached and convicted or simply resigns in order to avoid inevitable impeachment and conviction, the constitutional crisis has been cured.

This new America with its diminished system of checks and balances, where impeachment is never an option, will not be a formal monarchy. Jurists may still prattle on about statutory requirements, and those requirements will undoubtedly be applied to citizens. But those requirements will no longer be applied to the executive branch, which will go from bad to worse; on a downward spiral of imperial presidents where good commanders-in-chief are the exceptions that prove the rule. The failure of Congress to hold Ronald Reagan and George H. W. Bush to account for their Iran-Contra transgressions cleared the way for George W. Bush and Dick Cheney to engage in far more destructive transgressions in Iraq. A failure to hold Donald Trump to account for his lawlessness all but guarantees that a more lawless president will eventually occupy the Oval Office. To think otherwise is to engage in the cruelest of fantasies.

This book rejects fantasy. It chooses the realism of long-settled history over the conjecture of a chaotic present. Taking the long view is rarely rewarded in these times of "instant analysis." But it is the only view that provides us with the hope of righting the ship of state for more than a passing moment. This book outlines a serious vision for renewing the system of checks and balances, not merely to hold Donald Trump to account but to restore the basic premises of accountability that were embedded in the Constitution by the founders--and that have been preserved by true patriots in even the most daunting of times.

The patriots who have contributed to these pages propose nothing more radical than a reconnection with the deepest understandings from the summer of 1787, and from the summer of 1974. They recognize the necessity of wielding the awesome power of impeachment with the "solemnness" that Congresswoman Barbara Jordan described on July 25, 1974.

An African American lawyer and legislator born and raised in the segregated Texas of "Jim Crow" times, she was serving her initial term in the U.S. House of Representatives as the first African American woman ever elected from the Deep South. Now, Jordan sat on the Judiciary Committee as "an inquisitor" charged with determining the fate of a president who had only recently been reelected with 61 percent of the vote and a 520-17 Electoral College landslide.

"Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: 'We, the people.' It's a very eloquent beginning," she told her colleagues. "But when that document was completed on the 17th of September in 1787, I was not included in that 'We, the people.' I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in 'We, the people.'"

There was perfection in the language that Barbara Jordan chose on that historic day. She took hold of the right of impeachment and made it what it should always have been: the possession of every American. Every American. And she declared that this right must have meaning, not merely in history but in the present.

"James Madison, again at the Constitutional Convention, [said]: 'A president is impeachable if he attempts to subvert the Constitution.' The Constitution charges the president with the task of taking care that the laws be faithfully executed," she explained, "and yet the president has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice."

Jordan repeated Madison's words: "A president is impeachable if he attempts to subvert the Constitution." Wearing the armor of history, she explained why the standard would need to be applied to Richard Nixon's sins against the republic. "If the impeachment provision in the Constitution of the United States will not reach the offenses charged here," said Jordan, "then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!"

Those are words as wise as any handed down from George Mason or James Madison or Thomas Jefferson. They form an impression of the impeachment power as we today must recognize it. So too does Jordan's willingness in so charged a moment to maintain the right of impeachment.

"Has the president committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That's the question," explained the congresswoman. "We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision."

The authors of this book speak a historic language when they demand that Congress ask again: "Has the president committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate?" This is a book that extends from the founding moment of 1787 through the accountability moment of 1974 to the urgent moment of today. It demands more of us than many of our ancestors were willing to provide the republic. But not more than George Mason demanded. Not more than Barbara Jordan demanded. Not more than solemn and sincere patriotism has always demanded of us.

We do know the question that extends from the right of impeachment. And if the Constitution is to remain full in its meaning and its promise, then we should now forthwith proceed to answer the question.