“Impeachment is a farce which will not be tried again.” Those words were written in 1807, about 140 years before the birth of the first president ever to have been impeached twice, and Thomas Jefferson wrote them.
At the time, Jefferson wasn’t thinking about presidential impeachments. A few years before, he had participated behind the scenes in a successful effort to impeach Federal District Judge John J. Pickering. According to the Jefferson scholar Forrest McDonald, Pickering was “totally insane”; impeachment by the House of Representatives and conviction by the Senate was the only way under the Constitution to remove an incapacitated member of the judiciary from a lifetime appointment.
But President Jefferson had higher expectations for impeachment. He wanted his congressional allies to be able to use it to remove members of the Supreme Court whose opinions, in his view, threatened the constitutional system. Shortly after Pickering’s conviction, Jefferson encouraged his allies to impeach Justice Samuel Chase, whose decisions disappointed Jefferson. Despite the fact that Jefferson’s fellow Democratic-Republican factions controlled 25 of the 34 votes in the Senate, they couldn’t muster the requisite two-thirds majority for conviction, failing to garner more than 18 votes on any of the eight articles of impeachment.
In 1809, Jefferson was himself the target of a politically motivated impeachment, led by the Federalist Josiah Quincy. The effort, which ultimately fizzled on the House floor, only strengthened Jefferson’s sense that impeachment was of little use in rectifying corruption in the American constitutional system. He wrote in 1820 that “impeachment is an impracticable thing, a mere scare-crow.”
Jefferson was wrong about the utility of impeachment as a check upon corrupt members of the judiciary, especially in the modern era. Since 1980, five federal judges have been removed, either through conviction in the Senate or resignation after impeachment. But the record is very different regarding presidents. The Senate has tried a president four times, but never produced a conviction. The second acquittal of President Donald Trump—supported by Senate Minority Leader Mitch McConnell, despite his acknowledgement of Trump’s guilt—raises the possibility that Jefferson has been proved right about the impracticality of impeachment as a constitutional tool to hold presidents accountable. Is one of Trump’s lasting legacies that impeachment isn’t even a scarecrow anymore?
Our Founders created a remarkably effective framework for a diverse, democratic, postindustrial, global superpower despite the fact that they were the products of a slaveholding, authoritarian, largely agrarian, isolated 18th-century European colony. The Founders’ key insight was that power corrupts, and that a conglomeration of power corrupts even more. As a result, inspired by the French enlightenment figure Montesquieu—“the oracle who is always consulted,” as James Madison called him in “Federalist No. 47”—the Founders designed a system of three coequal branches of government, each checking and balancing the others. The president could veto bills, but Congress could overrule those vetoes. Initially, both the president and the Supreme Court served as checks on the constitutionality of congressional laws. The president held the pardon power as a check on the judicial system. And impeachment was Congress’s check on executive authoritarianism and crimes against the state.
The Framers, though, had two notable blind spots. First, they failed to anticipate the emergence of political parties. They understood, and accounted for, sectional and state interests. The unelected Senate—its members initially appointed by state legislatures—was intended to protect the interests of the states, particularly the less populous ones. The House gave more power to the more populous states, and by including a proportion of enslaved people in the census count, padded the influence of the slaveholding states.
But there was no allowance for the possibility that the three branches would be shaped by a loyalty beyond state, section, or country. Partisanship weakens the checks and balances of the entire system; it also increases the power of the presidency. To the constitutional responsibilities of the president—head of state, head of government, and commander in chief—was added the informal role of partisan leader. With the emergence of parties in the 1790s, a president’s party, as it were, arose in Congress to dilute the institutional loyalty of each individual member, a trend reinforced by the emergence of the modern two-party system after the Civil War.
The second blind spot was the expansion of democracy. In James Madison’s words, the Senate was the “great anchor of the Government.” As he wrote in 1787 to Thomas Jefferson, “The Senate will represent the States in their political capacity.” When the Framers gave senators the responsibility of serving as nonpartisan jurors in a presidential trial, they did not anticipate that the Senate would have to contend with angry primary voters. But in 1912, Robert Owen was elected by the people of Oklahoma as their senator, not appointed by the legislature. The next year, the ratification of the Seventeenth Amendment ensured that all senators would face the electorate every six years.
These blind spots almost immediately rendered presidential impeachments “impracticable.” The House of Representatives has never started impeachment proceedings when the president and the speaker of the House were members of the same party. Trump’s acquittal continues the unbroken tradition of the president’s party blocking conviction of its leader in the Senate. With one notable exception, in 1974, no party has ever placed itself in a position where it risked convicting its president.
If presidential impeachment is so difficult, then why have modern Congresses, especially in the Trump era, bothered with this burdensome relic of our pre-party system? The answer lies in the one notable exception. In the Nixon era, the country came closest to witnessing a textbook use of impeachment to remove a president for high crimes and misdemeanors.
Three conditions made impeachment practicable in 1974. First, the president was demonstrably guilty of high crimes and misdemeanors. Richard Nixon had taped conversations in which he talked about paying hush money to prevent the Watergate burglars from implicating the White House; involving the CIA and invoking national security to stop an investigation of Watergate; unleashing the IRS against political enemies; and promising presidential pardons to his criminal conspirators. Second, the president himself respected and feared the impeachment process, and handed incriminating materials over to both the Watergate special prosecutor and the House Judiciary Committee. Finally, though most of the president’s base continued to support him, the weight of publicly available evidence against Nixon led his party in Congress to conclude that it could no longer defend a criminal president. These three conditions were unique in the history of the American presidency.
But congressional Republicans still didn’t want to vote him out of office. Not long after the impeachment inquiry started in late 1973, Republican leaders made clear to Nixon, privately, that they might have to vote against him. Their preferred solution, however, was for him to resign. House Republican leaders hinted as early as May 1974 that Nixon should spare them the agony of voting against the leader of their own party. When the president, backed by conservative Republicans and some Southern Democrats, refused, Republican leaders mounted a half-hearted rearguard action to save his presidency.
But by the summer, after damning information emerged proving that the president had lied both to the public and to members of his own party about his role in the Watergate cover-up, Republicans no longer attempted to hide their prospective anti-Nixon votes from the White House. On August 7, the big three—Senate Minority Leader Hugh Scott, Senator Barry Goldwater, and House Minority Leader John Rhodes—met with Nixon to tell him what he already knew: that he was likely to be the first president ever removed from office by Congress. Goldwater, the leading conservative in the Republican caucus, warned Nixon that he couldn’t count on getting more than “maybe 16 to 18” votes for acquittal; Goldwater didn’t even promise his own support.
Because there was no Senate trial, the tradition of never convicting a president remained unbroken, but the Nixon case showed beyond any doubt that impeachment could be an effective scarecrow. Nixon fired a special prosecutor and ordered the independent Watergate investigation shut down during the “Saturday Night Massacre” in October 1973. But he was so afraid of impeachment that he then reopened the investigation under a new special prosecutor and handed over to the courts the very same tapes that he had fired the first special prosecutor for demanding.
Nixon believed that his political survival depended on convincing Americans that he wasn’t covering anything up. In his mind, that meant he had to prove to the American people that he was being responsive to the impeachment process. Meanwhile, he tried hard to prevent requests for what he considered even more damning materials. The Supreme Court’s decision in U.S. v. Nixon ended that duplicitous balancing act. Once Nixon turned over explicit evidence that he had conducted a criminal cover-up, he faced certain removal (and the loss of his presidential pension). Although he was not convicted in the Senate, impeachment nevertheless helped force him from office.
The Nixon case is the only example of a presidential impeachment that worked out as the would-be impeachers (from both parties) wanted. The next modern presidential example, involving Bill Clinton, reflected the renewed faith of the American political class in impeachment as a useful tool. Clinton’s case, however, involved not a high crime, but simply a crime. He lied to a grand jury, but not about an affair of state, just about an extramarital affair. Conviction was out of the question—an insufficient number of Republican senators, let alone Democratic ones, wanted to remove him from office. But some partisan House Republicans hoped impeachment might again be an effective scarecrow, forcing a presidential resignation for the second time in 25 years. When Clinton refused to resign, the House, with its Republican majority, impeached him—but the Senate, despite its Republican majority, couldn’t even muster 51 votes of the 67 needed to convict him.
The two Trump impeachments should be judged against this modern backdrop. While Special Counsel Robert Mueller and his team were investigating possible Trump connections to the Russian intervention in the 2016 campaign, impeachment may still have served as a scarecrow. Memories of Nixon’s fate may have stayed Trump’s hand in issuing early pardons of his campaign confederates, and it certainly complicated Trump’s evident desire to fire Mueller. But once the report came out, the fear of impeachment evidently dropped away. Trump would not have pressured Ukraine’s government to falsely incriminate Joe Biden had he retained any fear of impeachment.
Trump was wrong about that, but the story of his first impeachment would prove to be a disaster for the constitutional remedy. Had Trump faced only one impeachment, the tool might have been effectively nullified for at least the current political generation. The fault hardly lay with his impeachers; Trump’s use of foreign policy for personal political gain forced a constitutional response. The problem was that Trump’s acts, and those of the president’s party in Congress, established pernicious precedents that subverted the constitutional means of curbing a corrupt chief executive without waiting for the next election.
In 1796, George Washington established the principle that the executive branch had a special responsibility to provide material requested as part of an impeachment inquiry. The House had asked for documents from the State Department regarding John Jay’s negotiation of a treaty with Great Britain. “It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed,” Washington replied. “I repeat that I have no disposition to withhold any information which the duty of my station will permit or the public good shall require to be disclosed.”
In denying the House’s request, Washington indirectly acknowledged that impeachment would have obliged him to turn over at least some of these foreign-policy materials. More than a generation later, President James K. Polk, a former speaker of the House, in denying a request for information about the State Department’s secret funds, reconfirmed the special nature of a request from the House in an impeachment inquiry: “The power of the House in the pursuit of this object would penetrate into the most secret recesses of the Executive Departments,” he wrote. “It could command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial and to testify on oath to all facts within their knowledge.”
In the modern era, Nixon agreed with Washington and Polk. In 1970, he said that the executive branch was “clearly obligated” to provide the House of Representatives with information relevant to any impeachment investigation. However, like all those other presidents before him who had affirmed the special nature of impeachment, he said this when he faced no threat of impeachment himself. Nixon was responding to the House’s impeachment inquiry into Justice William O. Douglas, explaining why the White House had ordered FBI files turned over to the House.
Nevertheless, when the light of impeachment turned on him, Nixon didn’t change his public stance. A month after the process began, in his State of the Union address, Nixon said, “I recognize that the House Judiciary Committee has a special responsibility in this area, and I want to indicate on this occasion that I will cooperate with the Judiciary Committee in its investigation.”
What Trump and his legal enablers figured out was that there is no explicit requirement in the Constitution to treat an impeachment request differently from a congressional-oversight request. On October 8, 2019, White House Counsel Pat Cipollone sent a letter to the House saying that:
President Trump and his Administration reject your baseless, unconstitutional efforts to overturn the democratic process. Your unprecedented actions have left the President with no choice. In order to fulfill his duties to the American people, the Constitution, the Executive Branch, and all future occupants of the Office of the Presidency, President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances.
Meanwhile the president’s party also acted in an unprecedented manner. In 1974, even Nixon’s allies sent messages to the White House pleading with him not to stonewall the impeachment inquiry. The American people, they assumed, would equate stonewalling with guilt. In 2019, House Republicans supported the president’s unconstitutional denials of the House’s requests. And, in the Senate, the Republican leadership used the House’s difficulties in obtaining information for the inquiry to cast doubt on the entire impeachment effort.
To justify his obstruction of the inquiry, the president’s congressional allies compared his resistance to the Obama administration’s resistance to requests from a Republican-dominated House for materials on the “Fast and Furious” program. The comparison was misleading; impeachment requests had always been treated differently than other congressional inquiries. George Washington would have agreed with Obama and disagreed with Trump. And it was this norm—the need to turn over documents to House impeachers—that gave impeachment teeth.
In his first Senate trial, Trump’s defense team and his party made a set of novel claims without any constitutional basis: An abuse of presidential power that did not also involve the violation of a criminal statute was not grounds for removal, Mitch McConnell argued; the Senate cannot do any investigation of its own in the impeachment process, Republicans asserted; a presidential impeachment cannot occur in an election year, then-Senator Lamar Alexander of Tennessee said. All of these claims contradicted historical precedents. In 1974, a bipartisan majority in the House Judiciary Committee passed an article of impeachment focused on abuses of power by Nixon that did not amount to crimes. The Constitution leaves the details of an impeachment trial to the Senate; there is nothing that limits evidence in the trial to what was available to the House. Indeed, had there been a Senate trial of Richard Nixon, Senate leaders from both parties had already decided to admit whatever relevant evidence was unlocked by the Supreme Court decision in U.S. v. Nixon, which came after the conclusion of the House’s impeachment investigation. Finally, in 1868, an election year, the House impeached Andrew Johnson. The defenses mounted by Trump’s supporters were simply a smoke screen, and one that was dangerous to the Constitution.
Had Trump’s acquittal in February 2020 been the last word on presidential impeachment in our era, Trump and the Republican Party might have destroyed the constitutional remedy for corruption and authoritarianism for at least a generation. After Andrew Johnson barely avoided conviction in 1868, America’s political class turned its back on the tool, considering it ineffective and corrosive, and it remained in a virtual lockbox for over a century. Trump’s defenders in Congress and the media were able to mislead the public into believing that a president has the right to deny any assistance to his impeachers. Meanwhile, concerned about delaying their investigation into the election year of 2020, the House impeachment managers declined to contest Trump’s total denial of the 71 requests for information in federal court. Even though any court case would have extended past the Senate trial, Trump likely would have lost in the end, setting a precedent that would have helped future impeachers.
Had it not been for Republican Senator Mitt Romney’s solitary act of patriotism, the entire effort would have vindicated Jefferson’s claim that impeachment was “a farce which will not be tried again.”
Trump’s second impeachment was an entirely different matter. This time his disdain for impeachment was essentially irrelevant. The actions for which Trump was being judged had played out in public, and although additional information would have been helpful, it was not essential. Trump’s incitement of the Capitol riot was itself a public act; both the campaign to “stop the steal” and the insurrection it triggered took place in the open. The consequences of the president’s actions were not in question, either.
Another element restored to the threat of impeachment some of its lost power: Most members of Congress were eyewitnesses to the impeachable acts—indeed, they were its victims. House Minority Leader Kevin McCarthy spoke by phone with the president on January 6, urging him, unsuccessfully, to call off the insurrection. McCarthy relayed his experience to members of his caucus.
McConnell apparently didn’t speak to Trump that day, but he must have known that Trump had called a member of his caucus—the newly installed Trumpist senator from Alabama, Tommy Tuberville. Tuberville likely relayed the president’s lack of concern for the well-being of the targets of the mob’s rage.
Despite this knowledge, the leaders of the president’s party tried to close ranks to protect him, just as the president’s party had initially done in every previous impeachment. But in 2021, that proved impossible. The evidence was too stark, the crime too high, for political tribalism to stifle all dissent. In the summer of 1974, seven Republican members of the House Judiciary Committee turned their back on their party’s leadership and decided to support at least one article of impeachment. In 2021, 10 members of the House Republican caucus, including Minority Whip Liz Cheney, voted for impeachment. More Republicans would have voted against Nixon had the vote reached the floor in 1974, but in our highly partisan era, and with Trump’s cultlike hold on many voters, this was a significant turn of events.
With just days remaining in Trump’s term, political momentum was turning against him. But, keeping with U.S. political tradition, his party’s leadership still did not want to convict one of its own. McConnell, who this time believed Trump guilty of an inescapably impeachable offense, found a way out. Unlike Senate Minority Leader Hugh Scott in 1974, McConnell understood that he had no hope of persuading Trump to resign. Instead, he delayed the start of the Senate trial past the end of the president’s term of office, providing a way for Republicans to vote to acquit on a technicality—that a former president cannot be removed from office. But the president’s actions proved too egregious for even McConnell to hold his caucus together, and seven Republican senators voted to convict.
So: Did Trump kill impeachment? No. Although the precedents established by Trump’s first impeachment may linger, the record of his second impeachment may have revived the tool as a credible threat to a wayward president. So long as Trump remained in office, with the full powers of the presidency at his disposal, he posed a danger. Although Trump was unlikely to lead the country into war just before leaving office, he made ominous statements about using the military at home, and about issuing pardons to himself and his family. The comparative quiet of that final stretch vindicated the House’s decision to employ impeachment.
Because conviction in the Senate has always been an unlikely outcome, impeachment is most useful if it in some way scares a corrupt White House. The threat can be political, reputational, or criminal. Impeachment depends on the ability and willingness of Congress to obtain evidence of misdeeds, and on public outrage at those facts and over any evidence of a cover-up.
In 2019, Trump gamed the system and won. In 2021, with his crimes more blatant, he couldn’t repeat the trick. Trump left office clearly afraid that he had lost control. The protection of our liberty against a corrupt president depends on such fear, on a president’s anxiety about Congress and public opinion.
Whether Jefferson’s flawed scarecrow will prove an effective check on future presidents depends less on constitutional reform than on changing our political culture. So long as our leaders can lie shamelessly and stonewall inquiries, they can behave with impunity. Only if we—the people, the media, Congress, the courts—hold them to higher standards will they fear the consequences of corruption. To work, our system needs presidents to believe they are accountable. As James Madison explained at the Constitutional Convention, “It [is] indispensable that some provision should be made for defending the Community ag[ain]st the incapacity, negligence or perfidy of the chief Magistrate … In the case of the Executive Magistracy … loss of capacity or corruption … might be fatal to the Republic.” The Founders established impeachment as the main remedy while a president is in office. But there are other remedies to hold the powerful accountable—the polls and the courts. Trump has already lost at one, and he may well soon lose in the other.