Impeachment and American Political Development
[This article is reposted in its entirety from “A House Divided” on October 11, 2019. ]
A president is facing impeachment, nearly exactly when Arthur Schlesinger anticipated. At the conclusion of The Imperial Presidency in 1973, he offered a warning:
“We have noted that corruption appears to visit the White House in fifty-year cycles. This suggests that exposure and retribution inoculate the Presidency against its latent criminal impulses for about half a century. Around the year 2023 the American people would be well advised to go on the alert and start nailing down everything in sight.”
Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973), 418.
In other words, Schlesinger claimed that whenever there is something like a Nixonian moment of embarrassment to the office, it is supposed to have a legacy of about 50 years, operating as a check on presidential conduct. But as the memory of it erodes, presidents gain more confidence in their ability to push the boundaries of their power.
To be clear, we are not claiming that there is some deterministic logic to the timing of impeachment, nor are we asserting that Schlesinger actually prognosticated President Donald Trump’s ascent and current predicament. Rather, we view Schlesinger’s claim about recurrent presidential corruption and impeachment as an invitation to consider the significance of today’s impeachment inquiry in American political, institutional, and constitutional development. To do so, we consider Trump’s potential impeachment through two American Political Development frameworks: Stephen Skowronek’s theory of political/secular time and Keith Whittington’s idea of constitutional construction.
The Exception That Proves the Rule? Or the Waning of Political Time?
Stephen Skowronek’s theory of political time in The Politics Presidents Make advances the notion that the authority of presidents to govern is contingent on two factors: (1) the resiliency of the current political regime and (2) the political identity of the president in relation to that regime. A regime is either robust or vulnerable, while an individual president is either affiliated or opposed to the received commitments of that regime.
This dynamic suggests four possibilities for the politics of presidential leadership. First, a reconstructive president (e.g., Franklin Roosevelt) who is opposed to a waning regime has the opportunity to remake political order and establish new governing commitments. Second, presidents who follow and are affiliated with this dominant regime (e.g., Lyndon Johnson) engage in a politics of articulation, in which they seek to build upon the work of their reconstructive predecessor and fulfill the vision animating that political order (e.g., LBJ’s Great Society as successor to FDR’s New Deal). Third, preemptive presidents (e.g., Dwight Eisenhower) come to power as leaders opposed to a dominant political regime, attempting to challenge that order but ultimately being frustrated by their inability to fundamentally change the political direction of the polity. Finally, disjunctive presidents (e.g., Jimmy Carter) have the most difficult – arguably impossible – task. They come to power affiliated with a regime that is falling apart, and in seeking to rehabilitate the aspirations of their political orthodoxy, they generally end up exposing the regime’s perceived inability to solve the political problems of the day.
Preemptive presidents, in Skowronek’s theory, are at a unique risk of being subjected to the impeachment process by Congress. Because these are presidents oppose a dominant regime, often trying to tinker around the margins in their policy proposals, they face questions about their authenticity. As Skowronek writes, questions about individual character are a recurrent issue for these presidents:
“…the charge of fatal character flaws leveled against Bill Clinton figures prominently in the experiences of our preemptive leaders. Clinton as ‘Slick Willie,’ Nixon as ‘Tricky Dick,’ Wilson as ‘a sham,’ Cleveland as a ‘libertine’ and ‘moral leper,’ Andrew Johnson and John Tyler as ‘mongrels’ – all these characterizations taken together suggest that worries about the authenticity of commitments and the trustworthiness of character are engrained in a politics of preemption.”
Previous presidents who have either been impeached or been subjected to an impeachment investigation by the House of Representatives had all been preemptive leaders: Andrew Johnson, Richard Nixon, and Bill Clinton. Donald Trump is only the fourth president to face an impeachment inquiry. While there has been much debate over where Trump might fall within political time, scholars such as Julia Azari, Jack Balkin, and Skowronek himself have pointed to the ways in which Trump appears to be a disjunctive leader. As an outsider who unexpectedly captured his party’s nomination while offering an indictment of the entire political order (including his two Republican predecessors), Trump echoes past disjunctive leaders in arguing “I alone can fix it.”
So the question arises: how do we make sense of a likely disjunctive president facing the sanction that only preemptive presidents have experienced?
There has been no shortage of scandals and issues that would have likely resulted in an impeachment inquiry far sooner for a preemptive president. In fact, congressional Republicans in 2016 were already openly speculating about launching impeachment proceedings against Democratic nominee Hillary Clinton if she were to win the presidency. (Clinton would have been the first case of a preemptive president succeeding another preemptive president.) As President Barack Obama complained, “You’ve got some Republicans in Congress who are already suggesting they will impeach Hillary… She hasn’t even been elected yet. And it doesn’t matter what evidence they just—they’ll find something. That’s what they’re saying already.”
When Democrats took control of the House of Representatives after the 2018 midterm elections, many speculated that impeaching the president would be inevitable, and some congressional Democrats explicitly promised to do so. The release of the Mueller report, an investigation of Russian interference in the 2016 election and issues of collusion and presidential obstruction, was seen as the most likely impetus for an impeachment inquiry. Yet despite growing support for impeachment among the House Democratic Caucus, Democratic leaders continued to resist, worrying that impeachment would only appear to be a partisan exercise and would only alienate voters ahead of the 2020 presidential election. Thus, they seemingly adhered to the logic of political time: only presidents opposed to a dominant regime get impeached.
But a whistleblower report changed Speaker Nancy Pelosi’s calculation. This report alleges that President Trump and his administration sought to tie hundreds of millions of dollars of security aid to a promise by the president of Ukraine to investigate former Vice President Joe Biden and his son Hunter. As new revelations bolstered that allegation, and the administration initially sought to block the release of that whistleblower report, Speaker Pelosi announced the launch of an impeachment inquiry. As she told Politico, “The facts drove the timing and the decision… And that’s what I’ve said all along — when we get the facts, we will be ready. And we’re ready.” Moreover, because Trump’s actions have raised the prospect of using foreign policy to interfere in the 2020 election, it is arguably no longer tenable for Democrats skeptical of impeachment to only rely on the electoral process as a remedy.
How should we interpret this drastic change in approach by congressional Democratic leadership? There are two possible (and not necessarily mutually exclusive) interpretations of this disjunctive president confronting impeachment.
First, perhaps Trump is an exception that proves the rule. He has been embroiled in numerous scandals that seemingly would have immediately undone any preemptive administration: Russian interference in 2016, firing the FBI Director, illicit campaign payments to conceal personal scandals, refusal to release his tax returns, his equivocal response to the tragedy in Charlottesville, allegations that he and his family are profiting off the presidency in violation of the Emoluments Clause, etc.
The Trump-Ukraine scandal may just be a bridge too far, involving the president using foreign policy for personal political gain. As one American diplomat texted, “I think it’s crazy to withhold security assistance for help with a political campaign.” The exceptional nature of Trump’s transgression and personal character in office may indicate just how far a non-preemptive president would have to go before the threat of impeachment became credible.
However, there is a second possibility, raised by Skowronek toward the end of The Politics Presidents Make. Perhaps we are witnessing the possible waning of political time in the face of secular developments — the development of the administrative state, creation of the institutional presidency by Congress, technological advancements in mass communication, rise of presidential parties — that have enhanced the capabilities for independent action for all presidents, regardless of their place in political time.
Correspondingly, the ability for presidents with the greatest authority to remake the terms of politics has diminished. Perpetual preemption raises the possibility of impeachments becoming a routinized tool of political opposition. As Skowronek wrote at the start of Bill Clinton’s second term, “it seems likely that the classic problems inherent in this type of leadership will be a staple of American politics long into the future.” The slow, but nonetheless noticeable, increasing frequency of impeachment inquiries and threats in the last half century could suggest that the specter of impeachment will become a feature of ordinary politics.
Future cases of impeachment — and the political identity of the presidents subjected to that process — will ultimately reveal the changing politics of presidential legitimacy.
Constitutional Construction: The Impeachments Congress Makes
Of course, impeachment is not only a partisan calculation. It is a tool at Congress’s disposal to fight presidential power and renegotiate the norms undergirding the relationship between the legislative and executive branches. In other words, the impeachment process is an instance of “constitutional construction.” As Keith Whittington writes, “Constitutional construction is the method of elaborating constitutional meaning in [the] political realm,” involving the “political construction of authoritative norms and governing institutions.”
Previous impeachment efforts have corresponded to such battles between assertions of presidential prerogatives and legislative resistance. The issue of impeachment under President Trump is an especially striking clash of such claims, but it is certainly not unprecedented. Consider the previous cases of impeachment in presidential history.
Andrew Johnson was a Democratic president who clashed with Radical Republicans in Congress over the direction of Reconstruction after the Civil War. Because of this battle for control, Republicans passed the Tenure of Office Act in 1867 over Johnson’s veto. This act sought to deny the president the authority to remove executive officers who had been appointed with the advice and consent of the Senate unless the Senate voted to agree with the removal. Seeking to challenge the constitutionality of the act, Johnson attempted to remove Secretary of War Edwin Stanton, and the House began impeachment proceedings.
But this impeachment was not solely a battle over how much control over executive officers was possessed by Congress and the president. It was more generally a contest over the extent of presidential influence over policymaking. Johnson had also engaged in a “Swing Around the Circle” speaking tour in the 1866 midterm elections, attempting to persuade voters to elect lawmakers to support his policies. As Jeffrey Tulis has written, Johnson’s attempt at popular rhetorical leadership contributed directly to his impeachment: “Johnson’s improper rhetoric not only solidified his opposition, it served as the basis for the tenth article of impeachment… the significant fact is that no congressman expressly disagreed with the opinion that Johnson’s rhetoric was improper, undignified, and damaging to the presidency.”
Though Johnson narrowly survived conviction in the Senate, the impeachment process essentially put the presidency in its place for the time being. Congress was supreme. As Whittington summarizes, “Congress reaffirmed earlier understandings of the impeachment power, crushed Johnson’s efforts to strengthen the postbellum presidency, and put the spoils system on the defensive.”
The Watergate scandal and Richard Nixon’s resignation — in the face of the certainty of impeachment by the House and removal from office by the Senate — similarly marked Congress’s efforts to reestablish its authority in the wake of the aggrandizement of presidential power. The impeachment effort itself, which Congress began to undertake in the wake of the Saturday Night Massacre, focused on the Watergate scandal, including the president’s abuse of power, efforts to obstruct justice, and rejection of congressional oversight and investigative authority.
But leading up to and concurrently with the impeachment effort, Congress also sought to constrain presidential power through statutes, fighting against presidential budgetary influence, impoundments, and war powers. To this end, Congress passed statutes such as the Congressional Budget and Impoundment Control Act of 1974 and the War Powers Resolution of 1973. Attempting to make the executive branch departments and agencies more accountable to Congress, it later passed the Inspector General Act of 1978 to bolster its oversight capabilities. The intelligence agencies also faced more scrutiny, culminating in the Foreign Intelligence Surveillance Act of 1978.
Thus, the impeachment effort against Nixon must be situated within a broader effort by Congress to rein in a purportedly imperial presidency.
The impeachment and attempted removal of Bill Clinton by congressional Republicans may have been an attempted culmination of the Republican Revolution of 1994. It would have marked the Republicans firmly setting the agenda of government and removing their chief antagonist from the political scene. Yet the institutional stakes of this impeachment were narrower, mainly focusing on the president’s personal transgressions, and resulting in charges of the president lying under oath to the independent prosecutor and obstructing justice.
This impeachment was not part of a broader effort to constrain the office. Indeed, many of the same Republicans who wanted to impeach Clinton actually sought to bolster the presidency, passing the Line Item Veto Act of 1996 that (until being ruled unconstitutional by the Supreme Court in 1998) gave presidents enormous authority over appropriations. More generally, far from resisting the presidency, many conservatives came to embrace the unitary executive theory. As Andrew Rudalevige has argued in The New Imperial Presidency, congressional constraints on the presidency after Watergate faded and the office proceeded to regain the gravitas it had lost under Nixon.
The stakes of the Trump impeachment inquiry are closer to those involved in the Johnson and Nixon cases. Fundamentally, this is a struggle over institutional power. Of course, Trump is under scrutiny for using foreign policy in an effort to secure domestic political advantage and denigrate his potential political opponents in the 2020 presidential election. And his personal behavior mirrors his predecessors in facing impeachment, especially Andrew Johnson. But at the same time, he has repeatedly challenged Congress’s authority to engage in meaningful oversight at all, claiming executive privilege even for non-executive branch officials and going as far as to deny that the impeachment inquiry is even constitutionally valid.
It is unclear how the impeachment inquiry against President Trump will end. It appears that he may be impeached by the House and survive conviction in the Senate. Partisanship may remain the crucial variable in determining the outcome. Nevertheless, much could, of course, change over the course of this impeachment inquiry.
What is more clear is that the impeachment process President Trump faces today is an instance constitutional construction. The clash is not only partisan. It raises fundamental questions about the constitutional separation of powers.
While we do not view impeachment as cyclical in the sense that Schlesinger suggests, we do think that this impeachment process has the potential to clarify the scope of what constitutes acceptable presidential behavior in exercising power. How such questions are answered, Schlesinger suggested, may influence presidential conduct and interbranch relations going forward. The resolution of this impeachment inquiry will potentially determine the subsequent boundaries of presidential power and prove a critical contributor to the trajectory of American political development in the years to come.
John Dearborn is a Postdoctoral Associate in the Center for the Study of Representative Institutions and a lecturer in the Department of Political Science at Yale University.
Jack Greenberg is a doctoral student in American politics at Yale. His research focuses on the historical development of political institutions using mixed methodological approaches.