Can Donald Trump Be Impeached?

It’s really hard to impeach a president.

The founders included the provision, from the very start, as the weakest, “break the glass in case of emergency” mechanism for reining in an out-of-control executive. He was already subject to a four-year term, so he would remain answerable to the people, and to two other branches of government, which could box him in constitutionally. But the founders’ fear of creeping monarchism — the very reason for their revolution — and their deep realism about human nature led them to a provision, rooted in English constitutional precedent, whereby a rogue president could be removed from office by the legislature during his term as well. At the same time, it’s clear they also wanted a strong executive, not serving at the whim of Congress, or subject, like a prime minister, to a parliamentary vote of “no confidence.” He was an equal branch of government, with his own prerogatives, empowered, in Hamilton’s words, to conduct his office with “decision, activity, secrecy and dispatch.” He stood very much on his own feet.

And so the impeachment power was both strong and weak. Strong as it hovered as the ultimate sanction for any president who might push his luck, but weak insofar as it was deliberately limited to the offense of subverting the Constitution itself or betraying the United States in foreign affairs: the famously grave and yet vague Anglo-American terminology of “high crimes and misdemeanors,” which included “great and dangerous offenses.” These were essentially serious political crimes, which was why they had to be dealt with in the political arena rather than the courts. They amounted to one core idea: If the president was to start acting like a king, he could be dispatched.

But if he was to start acting like an idiot, he could not be impeached. If he was psychologically disturbed but not mentally incapacitated, ditto. If he pursued ruinous policies, or faced enormous unpopularity, or said unspeakably reckless things, he could not be impeached. If he committed a whole slew of crimes in his personal capacity, he’d be answerable to public opinion and regular justice, but not subject to losing his job. If his judgment was unstable, his personal behavior appalling or if he were to make the United States a laughingstock in the opinion of mankind, the impeachment provision did not apply.

And even then, the bar for impeachment was very high, as Cass R. Sunstein’s elegant new monograph, “Impeachment: A Citizen’s Guide,” explains: Both House and Senate would have to be involved and in favor; and conviction would require a two-thirds majority in the Senate, ensuring that a clear national consensus was necessary if a president was to be judged to be gravely violating his oath of office, or betraying the country. This is why in well over two centuries the impeachment power has been invoked against sitting presidents only four times, and never actually pursued to conviction. The attempted impeachment of John Tyler in 1842 was rightly rejected by the House of Representatives by a margin of 127-83 (he was guilty of innovating the use of the veto on policy grounds alone), and the impeachment of Andrew Johnson in 1868(on the preposterous grounds that he had no right to appoint his own secretary of war) was turned back by a single vote in the Senate. The impeachment of William Jefferson Clinton in 1998 because of a civil sexual harassment suit squeaked through the House on partisan lines, 221-212, but failed in the Senate, with conviction on the least ludicrous obstruction of justice charge reaching only 50 votes out of a needed 67. ...