Undoing an Election

The continuing Republican hold on the US Senate following the 2018 midterm elections makes the impeachment and removal from office of President Donald J. Trump unlikely to occur, although the growing number of guilty pleas from members of the president’s inner circle, courtesy of the Mueller probe, keeps the possibility alive. The prospect of impeachment has produced a steady flow of books on the subject from academics and political pundits, including this concise and readable primer from Alan Hirsch, an instructor in the humanities and chair of the Justice and Law Studies program at Williams College.

As Hirsch points out, calls for the president’s impeachment began even before the electorate had chosen a president in 2016; opponents of Hillary Clinton, with their chants of lock her up, were ready to impeach her for her use of a private email server as Secretary of State, while Donald Trump’s critics prepared to sue him for violations of the emoluments clause as soon as he took the oath of office. But, Hirsch argues, “impeachment is dangerous if misused. It can be used to subvert the ballot box and to bludgeon a president disliked by Congress.” While employed appropriately as a threat against Richard Nixon, impeachment was a “partisan disaster” as employed in the cases of Andrew Johnson and Bill Clinton. Hirsch examines the cases of all three presidents, as well as at the 25^th Amendment that allows for the removal of an incapacitated president, to draw lessons that may be applied to the situation of Trump.

The Constitution provides for the impeachment and removal of the president, or any other federal officeholder, for committing “treason, bribery, or other high crimes and misdemeanors.” Hirsch argues that, based on the Federalist Essays, the offense must be serious although not necessarily criminal, and “will typically involve an abuse of the presidential office itself.” His analysis suggests, though, that impeachment has been used against presidents more often for partisan reasons than due to documented abuse of the office of the presidency.

Republicans’ anger at seeing a southern Democrat, Andrew Johnson, succeed to the presidency upon the assassination of Abraham Lincoln, just as a bloody civil war was drawing to a close, was exacerbated when Johnson refused to support legislation providing justice for the former slaves. By January 1867, after Johnson had vetoed multiple laws providing rights to the freed people, Republicans were searching for a reason to impeach him. Unable to prove that Johnson had acted treasonously during the war or that he had helped to plan the assassination of President Lincoln, Republicans instead enacted a law over his veto that would be “impeachment bait.” The Tenure of Office Act required the President to get the Senate’s approval to remove any official whose office had required Senate confirmation; failure to do so was defined in the law as a crime and a “high misdemeanor.” When Johnson tested the law by firing his Secretary of War, the Republican-controlled House approved eleven articles of impeachment, including one based on an allegedly undignified speech given by Johnson, and turned the president over to the US Senate for trial. Johnson’s defense team was thwarted by Senate Republicans in its efforts to introduce evidence that the Tenure of Office Act was unconstitutional, but did argue that the primary charges against the President were really that he had succeeded to office due to an assassination, and that he was of a different political party from the majority in Congress. Hirsch sides with Johnson’s defenders, noting that the Supreme Court in 1926 found a law similar to the Tenure of Office Act to be unconstitutional and that impeaching a president based on a speech would have been a violation of the First Amendment. The Senate voted to acquit the president on the first three articles, as seven Republicans sided with the Democrats, then chose not to vote on the rest. Hirsch drew from the affair the lesson that if Johnson had...