BOOK REVIEW ESSAY

Impeachment Revisited in the Age of Trump

The Case for Impeachment. By Allan J. Lichtman. New York: Dey Street Books, 2017.
304 pp.
A Citizen’s Guide to Impeachment. By Barbara A. Radnofsky. New York: Melville
House, 2017. 160 pp.
Impeachment: A Citizen’s Guide. By Cass R. Sunstein. Cambridge, MA: Harvard
University Press, 2017. 208 pp.
To End a Presidency: The Power of Impeachment. By Laurence Tribe and Joshua Matz.
New York: Basic Books, 2018. 304 pp.

After the impeachment efforts directed first at Richard Nixon and then at Bill Clin-
ton, we were given two object lessons in the practical utility of impeachment as a means
of dealing with a president deemed unfit to govern. In one case, the president exited
before the process could play out to its logical end; in the other, a president was
impeached though not convicted in a case now largely seen as a partisan move that went
too far. In light of these two cases and given the lessons of the past, plus a gap in time of
20 years, is our current understanding of impeachment more nuanced, more sophisti-
cated, and more mature, or have we learned little or nothing from these earlier examples?
This essay is an extended review of four books written in the early days of the presi-
dency of Donald J. Trump. While not strictly about the impeachment of Trump, the
backdrop of our concern is, in part, a function of the growing chorus of calls for his
impeachment. Fortunately for the republic, serious efforts to impeach presidents occur so
rarely that citizens often lose sight of the basic mechanics and grounds for this extreme
constitutional remedy. To refresh our understanding, a veritable cottage industry of
books, articles, and television punditry has arisen. Four recent books seem especially ger-
mane to our purposes: Allan J. Lichtman’s The Case for Impeachment, Barbara A. Radnof-
sky’s A Citizen’s Guide to Impeachment, Cass R. Sunstein’s Impeachment: A Citizen’s Guide,
and Laurence Tribe and Joshua Matz’s To End a Presidency: The Power of Impeachment.
These authors devote a good deal of attention to the words and intent of the
Framers, who labored over the writing of the impeachment clause, which they believed
was a central component to establishing “good government from reflection and choice”
(Alexander Hamilton, Federalist 1 in Alexander Hamilton, James Madison, and John Jay,

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Presidential Studies Quarterly DOI: 10.1111/psq.12465
Vol. 48, No. 3, September 2018, 614–618 © 2018 Center for the Study of the Presidency and Congress
 BOOK REVIEW ESSAY | 615

The Federalist Papers [New American Library, 1961, 33]). Parsing the roots of impeach-
ment from its British antecedents and how it was Americanized are all key to a current
understanding of this process: all of the authors acknowledge the British influence while
arguing that it was adapted to the new nation. Sunstein notes that the Framers saw
impeachment in the United States as “something altogether different. It really is
designed for We the People, not the judges at all. It’s not just for specialists. It can’t be.
As much as any part of the Constitution, the impeachment clause puts the fate of the
republic squarely in our hands. . . It’s impossible to understand impeachment without
appreciating its intimate connections with other features of that system, and without see-
ing its origins to the revolution itself” (13).
To the Framers, “We the People” constituted an essential and nonlegal element of
impeachment. Had they wanted to rely strictly on a legalistic understanding, they might
have placed the responsibility for impeaching a president on the judiciary. But as
impeachment was an element of republican governance, the legislature and the will of the
people were to predominate.
Always lurking in the foreground was the ongoing fear of the Framers that the new
president might become a tyrant. Posner and Vermeule label as “tyrannophobia” the view
of the Framers in the post-Revolutionary era that still deeply affected them and that led
them to deliberately create mechanisms for both neutering (i.e., separation of powers) and
removing (i.e., elections and impeachments) a president deemed unfit for the office (Eric
Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic
[Oxford University Press, 2011]).
The Framers adapted British impeachment practices to the new republic. Sunstein
notes that in England, “[i]mpeachment was a movement in the direction of replacing
monarchical absolutism with something closer to parliamentary supremacy. In that way,
impeachment was, in England, a major step in the direction of republican self-
government. Adams, Madison, and Hamilton were aware of that” (35). As English prac-
tice became Americanized, “the concern was abuse of power, just as in England but it was
understood in distinctly republican terms” (38). In the 1770s, colonial Americans “came
to see impeachment as a mechanism by which the people could begin the process for oust-
ing official wrongdoers, understood as those who betrayed republican principles, above
all by abusing their authority through corruption or misuse of power. In that sense, it was
a legal instrument for carrying out the ends of the coming Revolution” (39).
Tribe and Matz also stress the “electoral integrity” argument for impeachment,
which the Framers believed necessary, given the possibility of an election being corrupted
by the victorious candidate. They quote George Mason, who asked, “Shall the man who
has practiced corruption and by that means procured his appointment in the first
instance, be suffered to escape punishment, by repeating his guilt?” (5).
After independence, several state constitutions included an impeachment provision.
Delaware was the first state to specify impeachable offenses as “offending against the state
by maladministration, corruption or other means, by which the safety of the Common-
wealth might be endangered” (Peter C. Hoffer and N. E. H. Hall, Impeachment in America,
[Yale University Press, 1984, 69]). In the end, impeachment was established as “an
appropriate instrument of republican rule” (Hoffer and Hall, 95).
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The language in Article II of the Constitution that establishes the grounds for
impeachment is brief and ambiguous, listing only “Treason, Bribery, or other High
Crimes and Misdemeanors” as possible offenses. But Sunstein suggests that the ratifica-
tion debates offer a better key to understanding what impeachment meant in the new
republic: “While the debates in the Constitutional Convention are profoundly illuminat-
ing, they were kept secret during the ratification process. That means that the people who
ratified the Constitution had no access to those debates. In this light there’s a strong argu-
ment that if we really want to know the meaning of the impeachment provision, we
should focus on the public ratification debates, which help explain how We the People
understood the document” (54–55).
Alexander Hamilton used his essays in The Federalist Papers to make the public case
that the new presidency would not be a fledgling monarchy; would have limited powers;
and, unlike a king, could be removed from office via a constitutional remedy for “those
offenses which proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may with peculiar pro-
priety be denominated POLITICAL, as they relate chiefly to injuries done immediately to
the society itself” (Federalist 65 in Hamilton, Madison, and Jay 1961, 396). Furthermore,
“the person of the king of Great Britain is sacred and inviolable; there is no constitutional
tribunal to which he is amenable; no punishment to which she can be subjected without
involving the crisis of a national revolution” (Federalist 69, 416).
As the Trump impeachment drumbeat gains traction, Radnofsky offers some guid-
ance on determining the basis of an impeachable offense:

The special phrase “high crimes and misdemeanor” is lifted directly from ancient British
impeachment law and forms the cornerstone of the U.S. impeachment process. It is a term
(legally, a “term of art”) that bears no resemblance to what we know as “crimes” or
“misdemeanors” today. It requires no charging of a crime, no intent to do a wrong, and no law-
breaking. When presenting a case for impeachment, Congress may charge (and has charged)
civil officers as acting with intent, treachery, criminal misconduct, and lawbreaking, but the
Constitution requires no proof of such—none—in order to impeach. (4)

To Radnofsky, the Framers built on their knowledge of British impeachments to

encompass (1) presidential incapacity or negligence; (2) presidential tyranny; (3) presi-
dential corruption; (4) betrayal of trust by their president to a foreign power; and (5) the
law of treason, which could be abused by the government to terrorize its citizens and offi-
cials by determining “treason after the fact” (8).
Is impeachment a legal or a political remedy for presidential misconduct? To Sun-
stein, it is largely a way to include “We the People” in a republican process (2–3). And
yet, he notes:

The impeachment mechanism isn’t a way for political losers to overturn the outcome of a
legitimate election. Nor is it a way for the public to say: our leader is doing a rotten job. Put
differently, loathing a president is not sufficient grounds for impeaching him, and the risk
is that if you loathe him, you might find certain actions a legitimate basis for impeachment
even if you would find those grounds patently inadequate if you loved him (14).
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Yale Law School professor Akhil Reed Amar reinforced the “political” grounds
argument in noting that “Impeachment is sensibly political as well as legal. Politicians
judge other politicians and impose political punishments—removal from office and dis-
qualification from future office-holding. The standard of conduct is not merely legal but
also political: what counts as the ‘high crime and misdemeanor’ cannot be decided simply
by parsing criminal law statutes” (Amar, “On Impeaching Presidents,” Hofstra Law
Review, 28, 291 (1999)).
Sunstein goes on to remind us that “Justice Joseph Story wrote in similar terms,
describing as impeachable those ‘offenses which are committed by public men in viola-
tion of their public trust and duties. . . Strictly speaking, then, the power partakes of a
political character, as it respects injuries to the society and its political character’” (62).
Virtually all of the scholars on the left and right agree that “high crimes and mis-
demeanors” include what even advocates of the robust, unitary executive theory of presiden-
tial power maintain: “not just criminal acts, but also abuse of power, maladministration and
even poor judgement” (John Yoo and Saikrishna Prakash, “Trump’s Great Power Has Its
Limits,” The Los Angeles Times, 20 December 2017, A13).
All of the authors agree that a president does not have to commit a strictly criminal
act to be impeached. In the Nixon and Clinton impeachments, the House of Representa-
tives approved “abuse of power” as part of the articles of impeachment in the cases against
those presidents. Allan Lichtman most forcefully makes the case that President Trump
has reportedly abused power, arguing that “Trump may be destined for impeachment for
egregious abuses of power” (175).
In our age of hyperpartisanship, is it possible to agree on a reasonable definition of what
constitutes “high crimes and misdemeanors,” one that takes into account Justice Joseph Story’s
warning that impeachment might be applied to political offenses “exaggerated by party spirit”
(quoted in Tribe and Matz, 12)? One starting point might be to dismiss the extremes. That
is, we might agree that the Gerald Ford position (i.e., “whatever a majority of the House”
believes it “to be at a given moment in history” [119 Congressional Record 11913, April 15,
1970]) and the excessively legalistic position (it must be a criminal act) are both incorrect and
do not correspond to the intent of the Framers.
The Framers seem to regard “high crimes and misdemeanors” to encompass presi-
dential behavior that does serious harm to the political system or to the public, harm of a
type that does not fall within the norm, and behavior that clearly exceeds the republican
limits of the office. Hamilton’s view in Federalist 65 that impeachment involves “the
abuse or violation of some public trust,” that these are “political” acts because they injure
society, seems a useful definition. Sunstein succinctly notes that such offenses are “abuses
or violations of what the public is entitled to expect” (56). Sunstein further specifies that
“we are speaking not of private misconduct. . . but of distinctly political offenses” (56).
While most authors do not think it is legitimate (or wise) to impeach a president
over policy differences, Lichtman believes otherwise—at least in the case of Trump.
Lichtman cites a number of policies he believes constitute “a crime against humanity”
(e.g., Trump’s actions on climate change), making Trump “an existential threat to
humanity” (123–39). Trump may indeed be such a threat, but the other authors herein
reviewed are very cautious if not contemptuous of allowing policy differences—however
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threatening—to rise to the level of impeachable offenses. It would overly politicize an

already excessively politicized and hyperpartisan politics.
Tribe and Matz also suggest applying the legal principle of ejusdem generis, as the
reach of “high crimes and misdemeanors” should be “offenses of the same general type as
treason and bribery” (38). That is, to be impeachable, the president’s actions should be as
serious a violation as treason or bribery.
If these books become important for resolving a political and/or constitutional crisis
of the republic, it will be a sign of a system breakdown in the United States. That many
see such a crisis approaching speaks volumes to the debilitating nature of our times, as
well as to the importance of these fine books. In the end, it would be wise to remember
the words of James Bryce, writing over a century ago: “Impeachment. . .is the heaviest
piece of artillery in the congressional arsenal, but because it is so heavy, it is unfit for ordi-
nary use. It is like a hundred-ton gun which needs complex machinery to bring it into
position, an enormous charge of powder to fire it, and a large mark to aim at” (quoted in
William J. Jackman et al., The History and Government of the United States: A History of the
American People [L.W. Walter Company, 1911, 1364]).

— Michael A. Genovese
Loyola Marymount University