The Founders Set an Extremely High Bar for Impeachment
And that’s probably a good thing.
About the author: Margaret Taylor is a fellow in Governance Studies at the Brookings Institution. She is also senior editor and counsel at Lawfare.
The statistics on impeachment are quite stark. Since 1789, 20 federal officials have been impeached by the House; only eight of them were convicted after a Senate trial. None of those, quite obviously, were presidents. And President Donald Trump is unlikely to be the first: In the face of a mountain of evidence regarding his conduct toward Ukraine and his blatant stonewalling of the House impeachment inquiry, no one with a brain thinks there is any chance he will be convicted.
So it seems only fair to ask: Did the Founders make it too difficult for the Article I branch of government to remove a president?
The question is an uncomfortable one. For one, it raises the possibility that the revered Founding Fathers, well, just got this wrong. And Americans do not want to think about the possibility that the Founders failed in their constitutional aspirations, and that the country’s regression to the mean of autocratic rule was thus inexorable.
It also makes clear the reality that in a nation almost equally divided into two political parties with starkly different visions for the nation’s future, the supermajority threshold of 67 votes—the two-thirds requirement as specified in the Constitution—to impeach a president is an incredibly high bar. Regardless of whether senators have a principled view of a president’s particular conduct, their judgment will be overruled by the pull of party loyalty.
Even so, I think the answer to the question is no—the Founders did not make it too hard to remove a president. They made it possible, but difficult, and that was the right place to land. If they had made it easier—by, for example, allowing removal if a simple majority of senators voted for it—impeachment could be used as a tool of the legislature to wield inordinate power over presidents, removing them for regular policy differences squarely within the president’s constitutional authorities. To make it any easier to remove a president would be to make it far too easy, introducing great instability to the system as a whole. Removing a president is appropriately difficult.
But the Founding Fathers probably would be quite dismayed to find that their fears of factionalism—the closest analogue they had to today’s political parties—seem to have come to fruition in the current impeachment proceedings. In George Washington’s farewell address, he warned against factions: “The common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”
The problem is that it is clear that America’s political system has not succeeded in restraining it. Senate Majority Leader Mitch McConnell said on December 12 that in “everything” he does during the trial, “I'm coordinating with the White House counsel. There will be no difference between the president's position and our position as to how to handle this, to the extent that we can.” He openly declared, “I'm not an impartial juror,” and at least one other senator publicly echoed that sentiment.
No one seriously doubts that if a Democratic president had engaged in the same conduct Trump engaged in, a set of Republican House managers would be making all the same arguments the current House managers are making now—and likely more. Party loyalty—not moral or legal principle—seems to be the sole relevant factor shaping their views.
When a sufficient number of senators are willing to accept an argument that using the power of the presidency to leverage a foreign government to smear a domestic political opponent to influence the outcome of the next presidential election is a mere “policy disagreement” and not an impeachable abuse of power, as the president’s defense team is arguing, Americans must ask themselves whether the country has lost sight of the vision the Founders were seeking and has embraced the factionalism they feared. And if that's the case—as it so appears—then the future of the American constitutional system looks very grim indeed.