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Thursday, January 30, 2020

On Presidential Accountability and Running Out the Clock

There are really very few opportunities to meaningfully hold a modern American president personally accountable when his party stands behind him.

1. A sitting President can't be criminally prosecuted, at least according to the executive branch and notable executive branch alumni.

2. Civilly, the President is absolutely immune, even after leaving office, for official actions taken while President.

3. Electorally, since the 22nd Amendment, a President stands for reelection only once, but typically has enormous advantages as incumbent and head of a major political party. If the President prioritizes self-preservation over party, the subsequent political fallout for party is a non-check.

4. Then, there’s removal from office through impeachment and conviction.

That bicameral "hundred-ton-gun" is difficult to bring to bear against a President. And Congress has terrible aim. Congress: 0, POTUS: 2. And, no, we shouldn't count Nixon's in terrorem resignation. My inquiry is interested in holding a president accountable even when his party stands behind him. The GOP of Nixon's era was unwilling to support him. As the Post reported, "Mr. Nixon said he decided he must resign when he concluded that he no longer had 'a strong enough political base in the Congress' to make it possible for him to complete his term of office."

The slowness of impeachment and the 4-year-term clock is an acute problem.

Trump's trial team has pressed the procedural argument that the House should have (effectively) conducted all investigation and fact development prior to the Senate trial. Of course, this process argument against witnesses and additional evidence would suffocate most impeachment efforts that involve factual disputes. If the Democratically controlled House actually decided to go back and try and gather additional evidence now by litigating House subpoenas, the ensuing presidential assertions of executive privilege and litigation would drag on for months if not years.

Thus, if a President ran out the clock on the term of office, impeachment of Presidents (but not judges) effectively becomes a dead letter. The delay would not only blunt accountability, but deny it altogether.

That outcome's absurdity suggests that:

(1) the original impeachment process cannot effectively function in cases of presidential impeachment and requires amendment, for example, by (i) very clearly empowering a presiding Chief Justice to adjudicate disputes about privilege (as a substitute for satellite pre-trial litigation), and (ii) authorizing both chambers of Congress to legislatively commit to more detailed impeachment procedure--at a time not connected with a live impeachment controversy--to lessen the problem of partisan bespoke trial process; and

(2) the other legal and political methods of holding presidents accountable, such as #1, the executive branch's self-serving view of immunity against criminal prosecution of a sitting president, should be revisited.

A constitutional amendment may be the deus ex machina of intractable governance problems, but that feels like where we are now. Pragmatism about partisanship tells me, given current political realities, Article V would never be unsuccessfully invoked to address this particular impeachment or perhaps even this President. A prospective-only amendment, however, might prove a more successful strategy, particularly if partisans could, through futurity's uncertainty, come to look at the problem impartially.

Update (Feb. 6, 2020): Senator Rick Scott (R-FL) has proposed amending the impeachment process -- definitely not the constitutional amendment to the impeachment process I was proposing and principally offered as a partisan sally following acquittal.

Posted by T. Samahon on January 30, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink


@ Peter Gerdes: You said "one of the huge costs of impeachment and conviction is the stain on one's reputation." Yes, but what if the President is not convicted? The President will then claim "victimization" by the "partisan" opposition. To be sure, it is a hasty generalization (from n=2 cases) but after the Clinton and Trump acquittals, their approval ratings went up. For Trump, it is the highest point since his 2017 inauguration, at least according to Newsweek (2/7/2020). If we use voter sentiment to measure the "stain on one's reputation," apparently there isn't much of a stain unless conviction is achieved. Particularly with a President who dismisses all criticism as "fake news," impeachment without conviction isn't much of a sanction. And to secure impeachment WITH conviction and removal, one needs evidence that isn't always timely obtained.

Posted by: T. Samahon | Feb 9, 2020 12:25:06 AM

I find this argument pretty unconvincing because the deterrent power of impeachment isn't really the loss of office. If that was the only stick presented by impeachment it would be almost useless, even in a functional congress, in policing the kind of corrupt attempts to gain political advantage Trump engaged in. After all, the president would just calculate whether he was so likely to get caught that it had a negative expectation in terms of numbers of years he remain in office. Often, especially at the end of the 1st term of an unpopular president this cost drops to zero while the benefits don't.

I think a better model accepts that one of the huge costs of impeachment and conviction is the stain on one's reputation. That stain exists even if the impeachment occurs so late as to be irrelevant to who is president or even after that president has left office.

Posted by: Peter Gerdes | Feb 8, 2020 10:55:49 AM

Honestly, I see no reason to make it easier to impeach and remove a president. It's so strange that people are beginning to see this as just another political move, rather than what the founders understood it to be: an absolute nuclear bomb to the system.

The founders put impeachment in for the cases when a president absolutely had to be removed from power--where it was so clear that all parties (or at least enough of them) would understand it.

I didn't vote or DJT. I don't particularly like him or his policies. But his presidency is not the existential threat to the republic that so many people are screaming about.

So relax. The founders were better than us. I know this because 240 years ago they anticipated exact arguments we are having today. What they wrote is working. The Dems pushed a sham impeachment like the Repubs did with Clinton. That impeachment will fail, and we'll all go on with out lives.

Posted by: thegreatdisappointment | Jan 30, 2020 4:37:12 PM

Important. Just worth to note, certain anomaly here, typically ignored:

Article I , section 3, provides as follows:

" Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: "

But here the most relevant and important one, I quote:

" but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. "

End of quotation:

But the president, is not exempted, from such criminal proceedings down the road ( if impeached and removed , despite by the way, the doctrine of " double jeopardy " it seems). So:

He may commit, criminal act during his tenure, inflicting by that, civil damage naturally, then, he would face, ordinary criminal indictment, be convicted again, but:

For the same conduct, criminally be found guilty, yet, not liable in civil action ( for the same conduct).

This is may be bit weird I must admit.


Posted by: El roam | Jan 30, 2020 10:53:22 AM

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