Jurisprudence

“There Is No Deus Ex Machina Clause in the Constitution”

Why Democrats shouldn’t impeach Donald Trump if they win the House.

President Donald Trump talks to the press before boarding Air Force One on Thursday.
President Donald Trump talks to the press before boarding Air Force One on Thursday.
Jim Watson/AFP/Getty Images

On the May 26 episode of Slate’s Supreme Court podcast Amicus, Dahlia Lithwick spoke with Laurence Tribe about the philosophical, practical, and tactical considerations surrounding Donald Trump’s possible impeachment. Tribe, the Carl M. Loeb University Professor and professor of constitutional law at Harvard, is the co-author of To End a Presidency: The Power of Impeachment. A transcript of their discussion, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: I want to ask a question about magical thinking. Is the corollary to Democrats saying “impeachment, 25th Amendment, Mueller, impeachment, 25th Amendment, Mueller” for the Trump team to keep saying “collusion, collusion, collusion” as though there’s something magical about the term collusion? As a purely factual legal matter, collusion isn’t actually a thing. Whenever Trump or Giuliani says there’s been proven no collusion, that’s not the totality of the Mueller brief in the first instance. So why hang on to the notion that we’ve been cleared of collusion, and therefore everything is gone? Is that a deliberate distortion, or am I misapprehending something?

Laurence Tribe: No, I think it is a deliberate distortion, but I think which C-word one uses, whether it’s collusion, conspiracy, cooperation, co-optation, really doesn’t matter as much as the fundamental question of whether this guy abused the system in order to become president, the way James Clapper argues in a recent book, Facts and Fears. Clapper makes a strong case that but for Kremlin-directed intervention, ordered specifically by Putin, Donald Trump would not be president. And the fact is it wasn’t a passive Donald Trump. There were people around him, and maybe Trump himself, who were facilitating that. It doesn’t really matter what little label you put on it. That is clearly an abuse.

We should remember that the question about Trump is not simply the question of whether he’s committed a technical violation of an anti-conspiracy statute or of the obstruction provisions of 18 USC. The real question of abuse of power is not limited to criminality. The president didn’t commit a crime when he pardoned Joe Arpaio, but it was a clear abuse of the pardon power. He wasn’t showing mercy. He was tying himself together with a lawless racist and basically sending signals to other people that ‘I’ll have your back no matter what you do as long as I like it.’ When he pardoned Scooter Libby, that probably wasn’t obstruction of justice under 18 U.S. Code. But it was part of an overall pattern of obstruction of the sort that would be relevant in an impeachment proceeding if we get there. That’s relevant in terms of public discourse, as long as we don’t so saturate ourselves with impeachment talk that we both blow the chance to take over the House of Representatives in November, because everybody will say that all you want to do is take this guy down and not do anything positive for us.

You can’t use the power of impeachment against a given president more than once. When it was used against Clinton in obviously improper ways—that is, it was used because he had perjured himself about consensual sex with an intern, not an abuse of presidential power—the net result is that he was vindicated in the Senate. He emerged with the highest popularity numbers he’d had in a very long time. He was emboldened. He was strengthened. So, we really shouldn’t confuse criminal indictments and the technical requirements of them with what we ought to be talking about in terms of the way this president has normalized the abnormal and essentially moved us closer to tyrannical rule.

That’s actually a great segue to the central argument of your book, and I think I agree with it. David Frum at the Atlantic did a glowing review this week where he also agreed with it. I think that the point, and correct me if I’m wrong, is almost a tactical conclusion. What you’re saying, and I’ve made this point about people putting too much hope in the Mueller basket, is that impeachment is a way of saying that this super-heroic thing is going to happen and we’re all going to be safe again. I think in addition to saying that people need to be their own superheroes, I think you’re also saying this is going to unleash—the language you use is a national trauma. Tactically, that doesn’t redound to the benefit of Democrats.

I think you’ve got the point, but it’s not just tactics. There really are matters of principle involved here. One principle is that magical thinking is unhealthy: It’s not good for us to dream in a kind of fantasy land way that somebody will rush in—a white knight on a white horse—and save us, really misses the point that only we can save ourselves. It’s we the people through this crazy Electoral College system that we have. But that’s the system we have. It’s we the people who put this man in power. The forces that lead people to tolerate, 60 million of them, to tolerate this kind of depressing discourse, this nastiness, this vengeful ripping apart of American institutions and of our traditions; those forces are not simply going to go away by waving a magic wand. There is no deus ex machina clause in the Constitution. There’s nothing that will save us from ourselves.

Impeachment is an important power but it’s part of a larger panoply. If we want to abide by the Constitution ourselves, and if we want to be coherent in complaining that we have a president who has no respect for the Constitution, then we have to take seriously the design of that Constitution. We shouldn’t use the impeachment power to express dissatisfaction with the president. We should apply what I see as the shoe-on-the-other-foot test: If we really like this guy’s policies, if we liked the way he sort of tacks back and forth and is inconsistent with respect to North Korea, would we still believe that he should be impeached? That is, if it were somebody whose values and policies we shared would we be able to conclude that the person had so abused the powers of office that it just is too dangerous to the republic to let that person stay in power?

The really hard problem occurs when maybe 40 percent of the people are convinced that that’s true and can point to acts of kleptocracy or obstruction of justice or abuse of the First Amendment or even the illegitimate acquisition of office to say that this person is unacceptable. What happens when there are tens of millions of people who just aren’t convinced? It seems to me that to say, well, we just have to be true to ourselves and go ahead and impeach no matter what the results will be, even if we know there aren’t going to be 67 senators to convict, even if we know that the person we impeached is going to run around and claim victory saying again, “No collusion, no obstruction. See I was acquitted.”* It just doesn’t make sense. It’s not just that it’s silly tactically: It’s just not the way the system is designed. We don’t have a parliamentary system for getting rid of somebody that we regret having put in power.

I think a doubter would say that the constitutional language is deliberately vague. The Constitution talks about treason, bribery, or other high crimes and misdemeanors. The emoluments violations, the threats to the First Amendment, firing Comey, threatening to fire Mueller, whatever you might want to put in that bucket certainly looks like it could meet that standard. I think what you’re telling me, and there’s a whole bunch of analysis in the book to this end, is that actually, the Constitution isn’t that vague.

Right. We conclude that all of the obsession over what is exactly a high crime and misdemeanor is asking the wrong question. We have provided enough guidance by identifying the kinds of things, bribery and treason, that are clear examples of high crimes and misdemeanors that the real problem isn’t to figure out whether he has committed one of them. I think as the evidence comes in it will be very clear to people who are willing to look at that evidence that he has.

The problem is what to do with that. The Constitution does not say or even imply that whenever a president has committed a high crime and misdemeanor he must be impeached and convicted. Quite famously, Sen. Robert Byrd concluded that William Jefferson Clinton had committed a high crime of perjury and obstruction of justice. But nonetheless he announced in the Senate that he would exercise his discretion not to vote to convict and remove. I can imagine senators concluding that with respect to Trump.

What our book does is try to provide a frame of reference for the whole series of questions beyond the initial one of what is a high crime or misdemeanor. The question of whether an impeachment will generate a backlash that’s even more dangerous and deadly than what we have to begin with—that’s a judgment call. It’s not one that any form of words like high crime and misdemeanor can help us answer. There was so much debate at the Constitutional Convention about where the impeachment power should be lodged. They thought of putting it in the Supreme Court. They thought of giving it to a council consisting of the chief justices of all the state supreme courts. They thought of giving the power to another kind of commission or council.

They ended up giving it ultimately to the House of Representatives, thinking that the House would end up picking most of our presidents because they anticipated that the Electoral College wouldn’t pick a clear winner very often. The people’s House therefore would not be too undemocratic in deciding that if he had committed a high crime and misdemeanor he really should be impeached. And then the Senate, though it wasn’t representative of the people, would provide a sober second look, which under the supermajority rules would only remove a president if it really made sense for the country. That design is one that can give us some guidance.

You’ve identified all the ways that this isn’t something that begins and ends with Donald Trump. You’ve talked about a polarized media. You’ve talked about complete inability to persuade across the aisle. We’ve learned that the mistrust of the state itself, of government itself, is at levels that neither you nor I could have ever predicted. What is the solution for these problems that go way beyond Trump himself?

Well, that is the deep problem and it’s a deep question to which we offer only hints of an answer. That is organizing, thinking, respecting people who have dramatically different points of view, working on the architecture of social media, increasing the likelihood that people will automatically encounter views that don’t just reinforce their own. But the real difficulty is this deep chasm of mutual mistrust that’s grown over the years, it’s come to the point where people really think that those who have a different view of what America ought to be from their own are evil people. I mean the objection to having your kid date someone with a politically different ideology is now at an all-time high. Much more than objections to people dating outside of their religion or race or anything of the sort.

I think to come back from that precipice there is no magic wand. If I could come up with a pharmacological solution I’d be a trillionaire, and we’d all be better off. But I don’t think there is such a thing. But I think we have to chill a bit, talk to one another, and try to build respect and understanding rather than just screaming at each other. That’s not an original proposition, but I think that sometimes the truth is not all that original.

Correction, June 4, 2018: A reference to “67 senators to acquit” during the presidential impeachment process should have said “67 senators to convict.”