With the indictments of two campaign associates of then candidate Donald Trump, and the guilty plea of one of his foreign policy advisers, some people are starting to talk again about the possibility of impeachment. Let’s put contemporary issues to one side and instead ask an enduring question: Did the framers get impeachment right? In other words, does the Constitution strike the right balance?

To answer, we need to separate two decisions made during the founding era. The first involves the standard the Constitution set for impeachment: treason, bribery or other high crimes and misdemeanors. The second involves the procedure the Constitution devised for it: an impeachment vote in the House of Representatives (requiring a majority) and then a trial in the Senate (requiring a two-thirds majority for conviction).

Begin with the standard. The nation’s founding document does not allow anything like votes of “no confidence,” common in parliamentary systems. Alexander Hamilton, James Madison and their colleagues believed strongly in the separation of powers. They did not want Congress to be able to tell the president, “You’re fired.” The idea of “high crimes and misdemeanors” sets a high bar.

True, that standard does not require a crime. If a president abuses the public trust -- say, by locking up political opponents -- he can be impeached, whether or not he has violated the criminal law.

But under the constitutional plan, a president is not impeachable unless he has engaged in some egregious misuse or abuse of his authority. Foolish decisions, and a total collapse in public confidence, are not enough.

On that count, the framers made the right call. For more than two centuries, the United States has been well-served, both domestically and abroad, by having a stable presidency with a leader who cannot be toppled because citizens think, at any particular time, that he is doing a terrible job.

Because Congress makes the laws and controls the purse, it has significant control over a misbehaving president. Maybe not enough. But if it could remove the president from office simply because it strongly disagreed with him, or just didn’t like him, national problem-solving would become even harder than it now is.

The Constitution’s procedure for impeachment is harder to defend. Even more than the standard, the requirement of a majority in the House, and a two-thirds margin in the Senate, makes impeachment exceptionally difficult.

History speaks volumes here. In the nation’s entire history, only two presidents have been impeached -- Andrew Johnson and Bill Clinton -- and both of them were able to avoid conviction. Richard Nixon resigned from office, and he would almost certainly have been impeached, but he too might have been able to avoid conviction.

One reason is something that the Constitution’s founders did not fully anticipate: the rise of the party system. Whenever the House’s majority comes from the same political party as the president, it is unlikely to initiate an impeachment proceeding, even in the presence of high crimes and misdemeanors. And so long as the president’s political party has a majority in the Senate, or even a strong minority, conviction might well turn out to be impossible.

Most of the time, that’s OK. Usually it’s best to ensure that the president gets his full four years unless there is something like a national consensus that he has done something egregiously wrong. If members of his own party can’t be convinced of that, maybe he should get to continue in office. He was elected, after all.

But constitutions should be designed to protect us in extraordinary times. Under imaginable circumstances, the Constitution’s procedure could get us into big and even catastrophic trouble. Above all, the requirement of a two-thirds majority in the Senate could well make it impossible to remove a president who really needs to go.

Suppose that a president does something genuinely terrible -- jailing political enemies, trampling on freedom of speech, making war, or abridging liberty in some patently indefensible way. As the 18th-century debates suggest, those are defining circumstances for use of the impeachment mechanism.

But would we use it?

That’s not clear. If a president put individual liberty seriously at risk, he is likely to have, or to be able to get, the backing of a lot of Americans -- at the very least, a sizable chunk of the electorate. Would our representatives in the House of Representatives invoke the impeachment mechanism in response? Would the Senate remove him?

Maybe not. Once we combine party loyalties with the Constitution’s procedure, it becomes reasonable to fear that a tyrant won’t be booted out of office.

For all their prescience, the Constitution’s founders did not quite foresee the problem. That’s worth worrying about.


By Cass R. Sunstein

Cass R. Sunstein is a Bloomberg View columnist. -- Ed.


(Bloomberg)