Nobody likes losing his job, but if there’s any country on Earth that’s copacetic about firing people, it’s these United States of America. Almost alone among industrialized democracies, the U.S. hews to the old-school regime of employment at will, which means most of us can be frogmarched out of the building at any time—for good reason, bad reason, or no reason at all.
Further up the food chain, “for-cause” termination is the norm; but with contracts that allow removal for offenses as vague as “moral turpitude” or “failure to perform,” that doesn’t shield CEOs from getting turfed out unceremoniously when they misbehave or don’t live up to expectations.
Does it bother us when an old lech like Les Moonves of CBS or some new economy manchild like Adam Neumann of WeWork gets the business end of creative destruction? Like hell it does: This is the country that pioneered the idea of firing people as entertainment. For 14 seasons of NBC’s reality TV game show The Apprentice, Americans tuned in eagerly to see which contestants would be shown the door with the signature line “You’re fired!” Then, in 2016, we went and elected the game-show host president of the United States.
Since his inauguration, Donald Trump’s tenure has been a whirlwind of self-dealing, management pratfalls, and public meltdowns of the sort that might get a mere captain of industry summarily canned. Luckily for him, he’s failed upward into a post that comes with more job protection than the vast majority of American workers enjoy. Somehow we’ve decided that the one job in America where you have to commit a felony to get fired is the one where you also control nuclear weapons. Given the damage an unfit president can do, shouldn’t it be easier to get rid of one?
Barriers Nowhere in the Constitution
“Four CEOs Were Dethroned Just This Week,” Forbes reported one day before House Speaker Nancy Pelosi announced she was opening an impeachment inquiry into Trump’s conduct. In fact, 2018 saw a record 18 percent of large-company chiefs forced out, according to the article. “Mercurial, flamboyant and self-destructive CEOs” are increasingly being told to hit the bricks “when their questionable ethics pose a threat to the reputation, mission or growth of their companies.”
A good thing, too: All the way up the corporate ladder, the ability to replace an underperforming or misbehaving employee is essential to keeping companies nimble and responsive. Free competition in America’s labor markets is, according to libertarian legal scholar Richard A. Epstein, “the surest road to social prosperity and business success.”
Not when it comes to the chief executive officer of the federal government, however: That guy should be harder to fire than a New York City public school teacher, apparently. “Impeachment is the ultimate constitutional sanction” requiring “the most serious deliberations,” Epstein wrote as debate heated up in September. “For Democrats to pursue the risky impeachment option shows more about their frenzied collective state of mind than it does about Trump’s many foibles.”
Epstein is hardly alone in that hypercautious view. Judging by how long it takes us to get there and how rarely we do it, Americans seem profoundly uncomfortable with the idea of firing a president. Before 2019, we’d made only three serious attempts at it in our 230-year constitutional history, impeaching just two of 44 U.S. presidents: Andrew Johnson and Bill Clinton. Only Richard Nixon, who quit before the full House could vote, was (effectively) removed from office via the impeachment process.
Meanwhile, over the last century, the American presidency has grown vastly more powerful—and more dangerous—than America’s Founders could ever have imagined. On the home front, our presidents increasingly rule by executive order and administrative edict; abroad, the commander in chief’s war powers have become practically uncheckable: He can add new names to the Predator-drone kill list, and even launch thermonuclear “fire and fury,” virtually at will.
You could blame the system, and you’d have half a point. Our Constitution’s Framers took a broad view of impeachable “high Crimes and Misdemeanors.” Per Alexander Hamilton in Federalist No. 65, presidents could be defenestrated for the “abuse or violation of some public trust.” Alas, the founding fathers also stuck us with the nearly insurmountable two-thirds requirement for conviction in the Senate—an innovation that came late in the Convention and that was approved without debate.
By accident as much as design, our system makes it painfully difficult to remove a president. And the political culture makes it harder still, by erecting barriers nowhere to be found in the Constitution. We’ve come to view the process as a source of constitutional crisis itself, rather than as a potential solution to one.
Yet if history is any guide, we have little to fear from what’s shaping up to be our fourth serious effort at presidential impeachment. Whether it succeeds or not, the attempted firing of Donald Trump will cause the republic little harm and may even do it some good.
Still, just try telling that to American political elites haunted by specters of wounded democracy and constitutional collapse. Should we dare invoke this dire remedy, they warn, we can be almost certain that something horrible will happen.
“Impeachment is hell,” Ken Starr, the former independent counsel whose four-year investigation led to Bill Clinton’s 1998 rebuke by the House of Representatives, frequently declares. It’s “a terrible, terrible thorn in the side of the American democracy,” he recently added. (Now he tells us.)
But it isn’t just the president’s copartisans wailing that dirge. Even those who’d dearly like to see Trump ejected often join in. “I’m heartbroken about it,” Pelosi professed at a September 28 press conference announcing the investigation. “There is no joy in this. We must be somber. We must be prayerful.” It’s doubtful Madame Speaker was entirely on the level here (no joy?); even so, she felt compelled to feign the fear and trembling Americans seem to expect when it comes to offboarding a president before his term is up.
Impeachment is “a hammer blow to democracy,” frets former Obama svengali David Axelrod. It’s an “extreme constitutional remedy,” echoes Late Show host Stephen Colbert. “A Trump impeachment should terrify you,” warns New York Times columnist Frank Bruni—though you should feel the fear and do it anyway. No, don’t, quails The Washington Post‘s Karen Tumulty—”not because he doesn’t deserve it” but because impeachment “would be a terrible thing for the country.” If, God forbid, we ever need to deploy this ultimate sanction, writes Harvard law professor Lawrence Tribe, “we can hope only that the nation survives with its spirit intact and the strength to rebuild all that’s broken.”
Is impeachment really as grave as all that? Few if any of the Framers viewed the prospect of a presidential pink slip with the unbridled horror now common among America’s political and intellectual elites. “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose as well as by the corruptibility of the man chosen,” Virginia’s George Mason argued at the Philadelphia Convention in 1787. “A good magistrate will not fear” impeachments, Massachusetts’ Elbridge Gerry insisted; “a bad one ought to be kept in fear of them.” North Carolina’s Hugh Williamson thought there was “more danger of too much of lenity than too much rigour towards the President.”
In that, he’d prove more right than he could have known.
Now, as in past impeachment debates, pundits and pols menace the public with the proverbial series of hobgoblins, most of them imaginary. Impeachment, we’re told, risks overturning the will of the people, distracting us from the vital business of government, and unleashing a host of evils—up to and including, if the president himself is to be believed, another civil war. Such fears are radically overblown.
The silliest charge is the most common: the notion that the impeachment process is an affront to democracy, an all-caps “COUP intended to take away the Power of the People,” as Trump put it in an October tweet. Twenty years ago, with Bill Clinton in the crosshairs, it was Democrats hurling the c word: “This partisan coup d’état,” Rep. Jerry Nadler (D–N.Y.) insisted, “will go down in infamy in the history of this nation”—like Pearl Harbor, apparently.
Only a partisan hack would say such things. Trump’s removal would “reverse” the 2016 election only if it installed Hillary Clinton rather than Mike Pence as his successor. What kind of a “coup” replaces one elected official with his hand-picked, duly elected, and loyal-to-a-fault running mate?
We’re also told that impeachment is a dangerous distraction from…whatever else the federal government would otherwise be doing. “The president of the United States should be allowed to run the country, not have to focus on this kind of crap,” Trump reportedly insisted at a recent cabinet meeting. “This is not what the country wants to talk about,” huffs New York Times columnist David Brooks.
But recent history suggests that whatever disruption impeachment causes will be minor and manageable. During the Clinton imbroglio, Judge Richard A. Posner observed in his 1999 book on the subject, “government ticked along in its usual way through thirteen months of so-called crisis.”
It’s not as if the choice is between impeachment and federal business-as-usual. Anytime serious i-word talk is in the air, the president already faces a hostile Congress and multiple investigations. The question is whether some additional disruption is worth it to finally bring matters to a close.
Besides, what are Congress and the president being distracted from? Reining in trillion-dollar deficits? Not much chance of that. Perhaps they would be handling what Brooks informed us in another column is the public’s core concern: “elite negligence in the face of national decline.”
Civil War II?
The Trump era has added a brand new hobgoblin to the usual parade of horribles: the allegedly looming threat of civil war.
“Try to impeach him, just try it. You will have a spasm of -violence in this country, an insurrection like you’ve never seen,” raves erstwhile Trump consigliere Roger Stone. The president himself sent “#CivilWar2” trending in late September when he tweeted a warning from MAGAchurch Pastor Robert Jeffress that impeachment would “cause a Civil War like fracture in this Nation.”
That dark prophecy is no longer confined to the fever swamps. Respectable opinion mongers from The New Yorker to The Atlantic now grimly contemplate the risk of mass Red-on-Blue violence.
Fortunately, there’s little reason to take this catastrophizing seriously. Granted, in a country with more guns than people and a surfeit of angry loners, we can’t rule out the possibility of an impeachment-inspired Pizzagate attack, or worse. But political scientists who study actual civil wars confirm that they’re practically unknown in developed democracies. If the opening skirmishes are any indication, “Civil War 2” will be fought mainly on the internet, with angry memes as the major armaments and boomers defriending each other on Facebook as the primary casualties. As one wag summed it up on Twitter, “America is too fat for a civil war.”
There’s no evidence that impeachment even leads to noticeable civil unrest. Were it otherwise, surely we’d have learned that the hard way in the 1970s. From the Weathermen’s “Days of Rage” in Chicago to the hippie-punching “Hard Hat Riot” in New York, the Nixon era saw a level of political violence we’d find appalling today. For one 18-month stretch in 1971–72, America suffered an average of almost five domestic terror bombings daily. Yet even with that bloody backdrop, the 37th president’s eviction proceeded peacefully. In the end, nobody thought Nixon was worth rioting over.
Hamilton was spot-on when he predicted that any serious fight to remove the president would cause partisan resentments to fester. But sometimes impeachment can lance the boil. As the constitutional scholar Sandy Levinson pointed out in a March article for Cato Unbound, Nixon’s resignation even led to “a brief ‘Era of Good Feelings,’ at least until Gerald Ford pardoned” him. (Mike Pence might want to take note, should it come to that.)
‘I’ve Been Flynted’
“Our long national nightmare is over,” Ford famously pronounced in his maiden speech as president, not long after Nixon’s cringe-inducing double V-for-Victory salute and departure via helicopter on August 9, 1974. Nixon’s struggle had been our struggle, Ford maintained, “the internal wounds of Watergate more painful and more poisonous than those of foreign wars”—a comparison that might have seemed grotesque to the war widows tuning in, given the 22,000 American casualties Nixon racked up in Vietnam well after he knew the war was lost.
The revelers who gathered in D.C.’s Lafayette Park had a healthier attitude: They hung a sign on the White House fence reading, “Ding dong, the witch is dead.”
“I’ll tell you what I remember most about Watergate,” journalist Jeff Greenfield enthused 10 years after the fact: “It was fun.”
Fun?! That sounds positively transgressive, but maybe Greenfield was on to something. We get so little for our tax dollars. Is the occasional bit of entertainment too much to ask? Throughout American history, presidential impeachments have been safe, legal—and all too rare. But what few we’ve had have provided their share of merry spectacle.
The 1868 impeachment of Andrew Johnson centered on the rather boring charge that the president had violated the short-lived Tenure of Office Act by sacking his secretary of war, Edwin Stanton, without senatorial approval. But even that had elements of slapstick. Sec. Stanton refused to give up his post, camped out in his office, and barricaded the door. (It’s a wonder that move didn’t occur to diva-ish former FBI director James Comey after Trump fired him in May 2017.) With the cooperation of a local judge, Stanton got an arrest warrant issued for his designated replacement, who was hauled out of bed, still drunk from the night before, by a district marshal. The war secretary got less help from his wife when he sent to her for food and clothes. Instead she came by to berate him for making a fool of himself.
The Johnson impeachment was D.C.’s hot ticket of the season. A young Mark Twain filed dispatches from the proceedings: “The multitude of strangers were waiting for impeachment. They did not know what impeachment was, exactly, but they had a general idea that it would come in the form of an avalanche, or a thunder clap, or that maybe the roof would fall in.” Charles Dickens, in town on a U.S. speaking tour, wrote his editor that it was “lucky I made so much money at first,” since the House debate “instantly emptied our great gallery here last night, and paralyzed the Theaters in the midst of a rush of good business.”
To give Ken Starr his due, the Clinton impeachment saga probably was hell for a few people. But save for Monica Lewinsky, most of them deserved it. For the rest of us, the scandal was a guilty pleasure.
Even the collateral damage was amusing. Republican losses in the 1998 midterms—driven in part by the unpopularity of the impeachment effort—forced Newt Gingrich to resign as speaker of the House. His would-be successor, Rep. Bob Livingston (R–La.), had to quit as well upon learning that one of his own extramarital affairs was about to be exposed. “I’ve been Flynted,” he told his colleagues, referring to Hustler publisher Larry Flynt’s impeachment-inspired crusade to unearth sexual hypocrisy on Capitol Hill.
And it was instructive, to say the least, to observe the lengths to which Clinton would go to keep his job. In his book, Judge Posner summed up the saga as “the ultimate Washington novel,” the major effect of which was “to make it difficult to take Presidents seriously as superior people.” That’s a lesson worth relearning time and again.
De-Imperializing the Presidency
Of course, you could argue Trump already has us covered as far as that lesson goes. On a daily basis, he’s doing an amazing job of demystifying the presidency, without the inconvenience of a House inquiry and a Senate trial.
If so, then what good is the current impeachment effort supposed to do? That’s a question raised recently by executive-power critics on both the left and the right. “Recent partisan impeachment crusades haven’t challenged the gravest executive excesses,” The American Conservative‘s Jim Antle pointed out. “Drone an American citizen, no worries. Drone on about Joe Biden in a telephone call, constitutional crisis.”
“If Trump is going to be impeached,” The Intercept‘s Murtaza Hussain wrote, “don’t fool yourself that what he’s allegedly done to Hunter Biden is the worst crime he committed while in office.”
It’s a fair point: The third-rate shakedown attempt at the heart of Ukrainegate probably isn’t even the worst thing Trump did in the month of July. Even so, in politics, as in economics, incentives matter. Lower the cost of bad behavior and you’ll probably get more of it. Not launching an impeachment inquiry in this case would signal that, going forward, it’s perfectly acceptable for presidents to use the diplomatic and foreign policy powers of the office to, in John Dean’s memorable phrase, “screw [their] political enemies.” Moreover, to tolerate Trump’s blanket stonewalling of Congress would establish the precedent that it’s OK for presidents to ignore lawful subpoenas if he thinks the people investigating him are “biased.” Repudiating those notions is hardly a waste of the House’s time.
Antle and Hussain are right to suggest that the more fundamental problem is the office, not the man. The presidency has grown far too powerful to entrust to any one fallible human. Will the current impeachment drive do anything about that?
Impeachment’s core purpose is to serve as “a bridle in the hands of the legislative body upon the executive servants of the government,” as Federalist No. 65 puts it. But history proves there’s no guarantee any particular impeachment will further that purpose. The Johnson showdown coincided with, but probably didn’t cause, a long period of congressional assertiveness. Bill Clinton’s personal “hell” had little effect on the balance of powers between the branches, other than forging a bipartisan consensus to get rid of independent counsels.
It’s only the Nixon impeachment struggle that sparked a wide-ranging effort to de-imperialize the presidency. As Americans began to understand in the 1970s, the real “national nightmare” was what Nixon and his predecessors had been able to get away with for far too long. The 37th president’s abuses had highlighted the dangers of concentrated power, and the exercise of long-dormant muscles in the impeachment drive seemed to embolden Congress to push further to reclaim its rightful authority.
The congressional reformers of the ’70s did more than force Nixon from office. They pushed for legislation that would make it harder for a future Nixon to abuse his office. The post-Watergate Congresses enacted a suite of significant, if imperfect, restrictions on executive power: passing the Presidential Records Act and strengthening the Freedom of Information Act to increase executive-branch transparency; passing the Foreign Intelligence Surveillance Act to limit the president’s ability to spy on Americans; passing the Privacy Act and Tax Reform Act of 1978 to restrict executive misuse of lawfully collected personal information. Additional reforms, such as the Impoundment Control Act, the War Powers Resolution of 1973, and the National Emergencies Act, addressed powers Nixon had abused outside the context of Watergate.
The post-Watergate Congresses made a lot of mistakes, and the good they did was steadily undermined by less assertive lawmakers in the decades that followed. But they carried out the last serious effort to limit executive power. Impeachment wasn’t a “distraction” from that effort but the catalyst for it. Today, for only the fourth time in American history, an American president has been forced to contemplate early retirement via the impeachment process. Those of us who’d like to downsize the presidency itself have little to fear from that process and some reason to hope.