Because impeachment is a political process, it must develop in the political context of a Congress made up of members who are not always courageous, who are invariably calculating and who are easily distracted in even the most urgent of circumstances. Three presidents have been seriously targeted for impeachment by the House. Two were impeached, and then acquitted by the Senate. One was at the brink of impeachment—following the decision of the House Judiciary Committee to support three indicting articles—and chose to remove himself before trial. There are those who argue that the resignation of Richard Nixon upended the impeachment process, but anyone who understands the point of a system of checks and balances will recognize the absurdity of this claim.
Nixon was threatened with impeachment and removed himself—thus ending his abuses of power and restoring the proper functioning of the office of the presidency. By any reasonable measure, that was a successful application of the constitutional remedy. Keep in mind that the point of impeachment has always been to address the abuses of executive authority that might see a president assume the mantle of an “elected despot.” Whether a president is impeached and convicted or simply resigns in order to avoid inevitable impeachment and conviction, the constitutional crisis has been cured.
Thus, the American who can most justifiably be said to have continued the right of impeachment as George Mason and his compatriots intended is Peter Rodino, the former chairman of the House Judiciary Committee who, upon his death at age ninety-five, was recalled by The New York Times as “an obscure congressman from the streets of Newark who impressed the nation by the dignity, fairness and firmness he showed as chairman of the impeachment hearings that induced Richard M. Nixon to resign as president.”
Rodino was a Democrat and Nixon was a Republican. Rodino’s Democrats had majorities in the House and Senate in 1974. Yet, the savvy veteran of the rough-and-tumble politics of New Jersey’s Essex County well understood that, in order to hold Nixon to account, he was going to need cautious House Democrats and skeptical House Republicans to accept the necessity of impeachment. This wasn’t about building a narrow coalition in order to clear the constitutional hurdles of a simple majority vote in the House and a two-thirds supermajority in the Senate. This was about building a case that was convincing to the American people. The case that Rodino and his Judiciary Committee colleagues crafted over many months, with hearings that entertained a wide range of offenses but finally focused on a few of the most egregious wrongs, was sufficiently compelling to secure Republican support for three articles of impeachment and to send Nixon packing.
These are different times. There are plenty of pundits and politicians who now assert that our partisanships have become so great that even a Peter Rodino could not make an impeachment process work. If that is the case, then the United States has not continued the right of impeachment as a whole instrument of the Constitution. The licensing words may remain in the document, but they are merely assertions of an ideal—not a practical tool for making real the founding promise of accountability for errant executives.
If we have reached such a point of compromise, then the American experiment is finished. Donald Trump may be voted out of office after one term. Or he may retire after two. Better presidents may come. Or worse. But the vision that ours would be a government of laws, not men, will be finished. We will, like the monarchies of old, be able to hope for no more than a “good king.” We will be more akin to the monarchies of old, which might have produced a “Bad King John” or a “Good King Richard,” but that always had kings. And those kinds ruled by “divine right,” rejecting the rule of law in favor of rule by fiat—just as Donald Trump does when he suggests he cooperates with inquiries not out of respect for the rule of law but because it occurs to him that he has “done nothing wrong.”
This new America with its diminished system of checks and balances, where impeachment is never an option, will not be a formal monarchy. Jurists may still prattle on about statutory requirements, and those requirements will undoubtedly be applied to citizens. But those requirements will no longer be applied to the executive branch, which will go from bad to worse; on a downward spiral of imperial presidents where good commanders-in-chief are the exceptions that prove the rule. The failure of Congress to hold Ronald Reagan and George H. W. Bush to account for their Iran-Contra transgressions cleared the way for George W. Bush and Dick Cheney to engage in far more destructive transgressions in Iraq. A failure to hold Donald Trump to account for his lawlessness all but guarantees that a more lawless president will eventually occupy the Oval Office. To think otherwise is to engage in the cruelest of fantasies.
This book rejects fantasy. It chooses the realism of long-settled history over the conjecture of a chaotic present. Taking the long view is rarely rewarded in these times of “instant analysis.” But it is the only view that provides us with the hope of righting the ship of state for more than a passing moment. This book outlines a serious vision for renewing the system of checks and balances, not merely to hold Donald Trump to account but to restore the basic premises of accountability that were embedded in the Constitution by the founders—and that have been preserved by true patriots in even the most daunting of times.
The patriots who have contributed to these pages propose nothing more radical than a reconnection with the deepest understandings from the summer of 1787, and from the summer of 1974. They recognize the necessity of wielding the awesome power of impeachment with the “solemnness” that Congresswoman Barbara Jordan described on July 25, 1974.
An African-American lawyer and legislator born and raised in the segregated Texas of “Jim Crow” times, she was serving her initial term in the U.S. House of Representatives as the first African-American woman ever elected from the Deep South. Now, Jordan sat on the Judiciary Committee as “an inquisitor” charged with determining the fate of a president who had only recently been reelected with 61 percent of the vote and a 520–17 Electoral College landslide.
“Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: ‘We, the people.’ It’s a very eloquent beginning,” she told her colleagues. “But when that document was completed on the seventeenth of September in 1787, I was not included in that ‘We, the people.’ I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in ‘We, the people.’ ”
There was perfection in the language that Barbara Jordan chose on that historic day. She took hold of the right of impeachment and made it what it should always have been: the possession of every American. Every American. And she declared that this right must have meaning, not merely in history but in the present.
“James Madison, again at the Constitutional Convention, [said]: ‘A President is impeachable if he attempts to subvert the Constitution.’ The Constitution charges the President with the task of taking care that the laws be faithfully executed,” she explained, “and yet the President has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice.”
Jordan repeated Madison’s words: “A President is impeachable if he attempts to subvert the Constitution.” Wearing the armor of history, she explained why the standard would need to be applied to Richard Nixon’s sins against the republic. “If the impeachment provision in the Constitution of the United States will not reach the offenses charged here,” said Jordan, “then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!”
Those are words as wise as any handed down from George Mason or James Madison or Thomas Jefferson. They form an impression of the impeachment power as we today must recognize it. So, too, does Jordan’s willingness in so charged a moment to maintain the right of impeachment.
“Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That’s the question,” explained the congresswoman. “We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.”
The authors of this book speak a historic language when they demand that Congress ask again: “Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate?” This is a book that extends from the founding moment of 1787 through the accountability moment of 1974 to the urgent moment of today. It demands more of us than many of our ancestors were willing to provide the republic. But not more than George Mason demanded. Not more than Barbara Jordan demanded. Not more than solemn and sincere patriotism has always demanded of us.
We do know the question that extends from the right of impeachment. And if the Constitution is to remain full in its meaning and its promise, then we should now forthwith proceed to answer the question.
JOHN NICHOLS June 8, 2018
John Nichols, the national affairs correspondent for The Nation, has covered impeachments and impeachment movements for decades. He is the author of the 2006 book The Genius of Impeachment: The Founders’ Cure for Royalism, for which author Gore Vidal wrote the introduction. In 2007, he appeared on the historic Bill Moyers Journal broadcast “Tough Talk on Impeachment with Bruce Fein and John Nichols.” (the video of that broadcast is at the top of this post)
From the Forward to The Constitution Demands It. Melville House. Kindle Edition.My aim is to temper any remaining (likely unreasonable) expectations that the current U.S. Senate will expel Donald Trump from the White House. Nevertheless, I disagree with Nichols that it might be fantasy or unreasonable to expect that the American People will rise up in the wake of Trump's expected acquittal rather than simply acquiesce.
Movements are already rising to demand (for example) a Brand New Congress that will be genuinely responsive to the People and to elect Elizabeth Warren, a candidate with the vision, backbone and detailed plans to transform the American federal government with Bold Structural Change.
If mealy-mouth (a description that fits the House GOP caucus exquisitely, by the way) Republican senators don't muster up the backbone to do the right thing, the American electorate will.