Document Type

Article

Publication Date

Summer 2022

Abstract

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the great legal scholar Professor Herbert Wechsler, are easily described as constitutional safeguards. They are political in the sense that they are part of our democracy, and not political in the sense that they are lawless or partisan. In this short Article, I expand on this claim, arguing that these “political” safeguards emerge from what Professor Charles Black called basic constitutional structures and relationships.

This claim may sound oxymoronic for many readers. How can politics be a safeguard? Politics is the problem, not the solution. Won’t the President’s political opponents have an incentive to impeach, particularly in a highly polarized age? Won’t all those chants of “lock her up” lead to impeachments of unpopular political figures like former Secretary of State Hillary Clinton, long after she has left office? These claims assume a much too simple model of American politics, and an incomplete view of our Constitution. Congress’s constitutional structure operates as a disincentive to party unity. Absent egregious enough action to unite a disunited country, I do not believe we will see a spiral of impeachments. Why? The costs of impeachment for Congress, both as an institution and for individual members, are high. To be sure, in a deeply divided nation, worries abound. Unforeseen cataclysms may defeat the most solid of predictions. But there are reasons that, in a post-pandemic era, impeachment fury may wither, even if politics at large remains viciously partisan. My point: those reasons lie in the Constitution’s structure.

In Part II, I explain the “constitutive Constitution.” Lawyers tend not to understand the Constitution as creating a government as opposed to limiting it. Focused firmly on courts, they mistake a part of the Constitution for its whole: most of the Constitution is political in the sense that it creates representative institutions. The prime reason for the 1787 Convention was not the creation of courts (otherwise the country would have perished long ago). It was the creation of a popularly-elected government, divided principally in two departments6: the legislature and the executive. In Part III, I explain why the constitutive Constitution makes it difficult to impeach. I focus on institutional reasons that make impeachment costly. These reasons can all be traced to the constitutional text, just not the text that most consider constitutional “law.” In Part IV, I apply these lessons to argue that the second Trump impeachment trial (which occurred after the President left office) will not lead to the impeachment of former officials such as former Secretary of State Hillary Clinton or former Attorney General William Barr. I conclude that this is unlikely to happen because of Congress’s more pressing electoral incentives, which are built into the Constitution’s structural preference for local geography.

Publication Citation

Missouri Law Review, Vol. 87, No. 3, Pp. 819-833.

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