In the United States, removing a sitting president is difficult by design. The Constitution provides only two mechanisms for this process: impeachment and the 25th Amendment. Given that the latter option requires cabinet officials to strip power from the president who appointed them, the most practical way to remove a president for misconduct is impeachment by Congress. While the two impeachments and subsequent acquittals of Donald Trump have incited arguments that the process has become too political to be effective, this isn’t quite true. Impeachment has always been political and has never been effective. In order to establish a real check on the executive branch, the American people should be given a direct say in whether or not to remove their president from office.
The Constitution entrusts the “sole Power of Impeachment” to the House of Representatives. If the House decides to impeach the president by a majority vote, the Senate must conduct a trial followed by a vote to “convict,” or remove from office. What constitutes an impeachable offense, however, has remained vague and controversial. According to the Constitution, presidents may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” While treason and bribery have analogues in the US Criminal Code, the Constitution provides no specific examples of high crimes and misdemeanors.
Constitutional scholar Charles Black argues that the Framers included the examples of treason and bribery to illuminate the type of presidential malfeasance that warrants impeachment. According to Black, high crimes or misdemeanors must be ejusdem generis, or “of the same kind,” as treason or bribery. This standard clearly includes some, but not all, criminal offenses, as well as abuses of power that are not technically crimes. In order to accommodate this nuance, the standards for impeachment must not be strictly legalistic.
Only three presidents have ever been impeached and none have been convicted, largely due to intense partisanship. Andrew Johnson was impeached on technical violations of the now-defunct Tenure of Office Act. Some senators, however, saw the trial as a chance to discharge a rabid white supremacist who had aggressively vetoed civil rights legislation, levied vicious attacks against members of Congress, and suggested hanging a member of the House of Representatives. Donald Trump, on the other hand, was impeached twice: first for soliciting election interference from the government of Ukraine and then for inciting an attack on the US Capitol. The impeachments of Andrew Johnson and Donald Trump both serve as examples of a partisan Congress failing to discipline a president for egregious misconduct.
Even the case of Richard Nixon, in which the President resigned while facing impeachment for his role in the cover-up of the Watergate scandal, hardly demonstrates the efficacy of impeachment. At first glance, Nixon’s resignation seems to prove the power of impeachment, with the mere threat of a Senate trial compelling a president to resign. However, the former president only stepped down after the release of tapes in which he implicated himself in the Watergate break-in. But incontrovertible self-incrimination is rare and is not a reasonable bar to meet for the impeachment of a president. Nixon’s resignation is not so much a testament to the power of impeachment as it is an indication of the depth of his corruption.
Impeachment is and has always been a deeply partisan process. It should be no surprise, then, that impeachment has been ineffective in imposing consequences on presidents who abuse their office. When conducting an impeachment trial, senators vow to “do impartial justice,” but they have a strong incentive to protect their political interests. Senators of the same party as the president usually only vote for conviction if they believe that popular opinion is so against the Commander-in-Chief that voting to acquit would be politically risky. This tendency has led senators to flagrantly disregard their oath, with some Republican senators even meeting with Trump’s legal team during his latest impeachment trial. Presidents realistically only face the threat of conviction if the Senate is controlled by the opposing party, but this is still a far cry from an impartial jury. As long as the Senate serves as the final adjudicating body in cases of impeachment, political incentives will remain the determining factor, and impeachment will remain a partisan congressional referendum.
A tempting solution would be to depoliticize the process. One option would be to bestow the Senate’s power to convict on a governmental body less susceptible to direct political incentives, such as the Supreme Court. Another would be to amend the Constitution so that presidents are removed from office in the event of a criminal conviction. These changes would hold presidents accused of serious crimes to a more objective standard of criminality than a Senate vote, which is often influenced by senators’ own self-preservational instincts.
This last proposal, however, fails to account for the nuance between criminal actions and impeachable offenses. Not all crimes are impeachable offenses, and some actions are legal but clearly impeachable. No president should be removed from office for a speeding ticket but, to borrow a hypothetical from Black, a president issuing a preemptive pardon to any law enforcement officer charged with killing someone would clearly warrant impeachment, despite not strictly constituting criminal behavior. The only way to account for this nuance would be by allowing prosecutors discretion in deciding which cases to bring against a sit- ting president or by allowing judges to acquit a president of a crime that does not warrant their removal. In either case, the decision to impeach a president would remain a political question, though now answered by usually unelected officials. A trial in the Senate may be flawed, but compared to the aforementioned alternative, it may be preferable because it grants power to a democratically elected body.
The problem with any attempt to depoliticize impeachment is that doing so requires impeachable offenses to be determined by a codified system, which contradicts the spirit of the Constitution’s “high crimes and misdemeanors” clause. The Founders’ inability to provide a strict framework was not negligent; this choice was a deliberate accommodation for the nuance required in deciding which offenses are impeachable. Aside from the most egregious examples, determining whether presidential misconduct justifies removing the executive from office is a judgement call, and thus requires legal flexibility.
Impeachment must remain a political question, but that does not mean it must be ineffective. Currently, 20 states allow for a gubernatorial recall, a process by which voters can remove a sitting governor from office before their term expires. Recalls force executive officials to be directly accountable to their constituents without the structure of an election cycle. Unfortunately, this process also has drawbacks. In California, 55 gubernatorial recall campaigns have been attempted; only one was successful. If voters can mount a recall effort at any time, the executive is constantly at risk of being thrust into a campaign to prevent their own removal from office. A no-grounds recall on the presidential level would lock the executive in a perpetual political campaign, incentivizing them to spend more time holding rallies than governing.
Some states, however, allow recalls only under specific circumstances. This kind of system could be implemented on a national level, with a constitutional amendment allowing a presidential recall only after a failed impeachment. If the recall were to be successful, the vice president would replace the president, just as if the president had been convicted in the Senate. This practice would preclude any other political candidates from entering the race and distracting from the question of the president’s alleged misconduct. Similarly, the recall could be held within a short timeframe, allowing voters to make their decision based on the information and arguments presented during the Senate trial, rather than allowing a president’s allies and enemies to launch sophisticated political campaigns.
This solution does not reduce the political nature of impeachment, but it does democratize it. Moreover, requiring that recalls follow a failed impeachment at least evades the intense politicization that a no-grounds recall would bring about. None of these solutions are perfect and they all carry risks. The fact remains, however, that impeachment in its current form is an ineffective method of removing a president from office for misconduct. Presidents must be accountable to their constituents, and the American people must be able to remove presidents who disgrace the office. The process may always be political, but it need not be so ineffective.