The connection between impeachment and Constitutional crisis

No president has ever been impeached by a House controlled by his own party, and the likelihood that Donald Trump would be the exception to that seems incredibly low. Nevertheless, the impeachment conversation has already started, and Rep. Shri Thanedar (D-MI) has introduced seven articles of impeachment. The impeachment discussion is already incredibly frustrating in some ways; there’s pressure to talk about it, of course, but even if the Democrats weren’t in the minority, the chances of a president being removed by impeachment remain slim. Why even talk about it when it won’t go anywhere – and when its track record as a Constitutional remedy is poor, to put it lightly? But how can Democrats not talk about it, given that it’s still the main Constitutional provision to address presidential misconduct? The questions about impeachment have surfaced alongside an endless debate and whether we’re in a Constitutional crisis yet or simply on the brink of one. And these things are connected.

In 2017, Seth Masket and I wrote a piece for 538 with a kind of typology of Constitutional crises. Several of those categories help explain why the impeachment debate follows certain patterns – and why it seems like such an important yet unpromising step for addressing presidential misconduct.

Constitutional ambiguity

Two of our types of Constitutional crises involved some form of ambiguity – the Constitution’s meaning is in question or unclear. Impeachment sort of resides at the intersection of both of these: the phrase “high crimes and misdemeanors” hasn’t inspired a lot of clarity about what kinds of offenses are impeachable. Instead, we’ve had unsettled debates about whether impeachable offenses need to be actual crimes, or simply failure to fulfill the Constitutional obligations of the office.

What I observe in my forthcoming book, Backlash Presidents, is that actual presidential impeachments vacillate between these two approaches: they tend to start with generalized opposition to the president and doubt at his fitness for office. In the cases I focus on, these early objections are racial: Andrew Johnson’s presidential Reconstruction, Richard Nixon’s appeals to Southerners on civil rights issues in order to win the presidency; Trump’s early actions and statements in 2017 and even the 2016 campaign. Bill Clinton also fits this pattern, though I spend less time on this case in the book. Armed with a general sense of presidential unfitness, opponents shop for concrete offenses and argue that they rise to the level of impeachability.

One possibility for how the debate might be different going forward – say, if the Democrats control Congress in 2027 – is that the administration’s lack of concern about limits and constraints has provided lots of concrete actions to point to. But the lack of Constitutional clarity about what impeachment is for and how it should work opens up lots of opportunities for Democrats to argue amongst themselves.

The Constitution says what to do, but the political will isn’t there

Another category, which I see as increasingly relevant to contemporary politics, is that the Constitution provides the tools but the politics needed to bring those words to life are simply not our politics. This is Jennifer Victor’s main argument in her post yesterday, which maintains that the problem is not Constitutional but political. The Constitution provides a procedure to remove a lawless president, but the Constitution didn’t anticipate the levels of hyper-partisanship we’re currently experiencing. I think this is a valuable perspective, and it points out that Congressional Republicans have repeatedly chosen not to limit Trump using the tools that the Constitution provides. But I also think the Constitution itself – what it does and doesn’t say, and how our system has come to operate – has also contributed to a situation in which the politics of impeachment are tough under most circumstances.

Impeachment challenges long-standing political norms

The thing about understanding the Constitution and enacting its provisions is that a lot of informal practices and norms have evolved at this point. An interesting puzzle of the twenty-first century is that presidential impeachment has been as rare as it has. George W. Bush and Barack Obama had fierce opposition in Congress, and while there were calls to impeach them, they never amounted to much. Past scandals have rarely resulted in impeachment, either – Iran-Contra is the case in point (discussed at length in this book). The most useful test case, Richard Nixon and Watergate, didn’t see the process fully play out. Only under very specific circumstances do Representatives overcome their reservations about the potential political fallout and actually approve impeachment articles.

Before getting to the conditions under which this happens, it’s worth examining why pursuing impeachment is always so fraught. This basically boils down to how important the presidency is to our understanding of orderly, legitimate politics. The New York Times editorial from yesterday, which urges Trump opponents to incorporate acknowledgment of Trump’s legitimacy to hold office and potential to make good policies into their protests against him is a case in point. The idea of really undercutting the president’s legitimacy is destabilizing and clearly bothers a lot of people, even if they don’t agree with or like the president on a policy level. Similarly, on the New Yorker podcast, Andrew Marantz draws a distinction between impeachable offenses and policy disagreements.

But in practice, when impeachment crises have hit, this distinction is not as easy to make. The underlying claim that presidents are not fulfilling the Constitutional obligation to uphold the Constitution or serve the people is connected to presidential use of power, which in turn is linked to policy. Marantz gives the example of tariffs as an objectionable policy but not an impeachable offense. This takes us back, of course, to the idea that what is an is not an impeachable offense remains unsettled. But tariffs have two potentially relevant dimensions. First, it’s unclear that the president has appropriate authority under the unspecified “emergency” that’s been invoked. The second is a harder case to make: whether deliberate or not, they seem likely to undermine the strength of the economy, arguably in violation of the president’s job to act as the steward of the well-being of the nation.

I think it’s not incidental that these two examples come from what has historically been the center-left elite press, which shapes opinion among center-left elected officials and their main supporters. This fits well with the emergent division in the Democratic Party over the cautious norms-keepers and those who want to mount more raucous and disruptive opposition. Impeachment may be written into the Constitution, but in practice, we’ve come to see it as a challenge to the institutional order. And that is reflected each time it comes up.

In practice, there haven’t been any impeachments that didn’t combine these larger political concerns with specific, more legalistic impeachable offenses. What I argue in my book is that the politics coming after a major rethinking of racial politics – after the Civil War, after Civil Rights, after the first African American president – loosen some of these norms and allow for impeachment efforts to go further. In the case of Bill Clinton, the loosening of norms came not with a racial transformation but with a new Republican majority in Congress, poised to push political boundaries. It’s possible that such a movement is brewing – or has been for some time – among Democrats.

Thinking about impeachment through these lens helps to understand why the politics are so difficult, and why this goes beyond partisan polarization. Absent a clear Constitutional roadmap, lawmakers dubious of a president’s commitment to the Constitution have to engage in some political improvisation. This is particularly challenging when the side that would need to do the impeaching is also deeply invested in norms, institutions, and stability. We should expect these dynamics to inform what comes next – and for the impeachment and Constitutional crisis debates to overlap in important ways.