Whittington Coup - Is Presidential Impeachment Like a Coup?

Is Presidential Impeachment Like a Coup?

Introduction

The U.S. Constitution includes mechanisms of political accountability, such as the impeachment clause, allowing electorally accountable legislators to remove a president.
The status of these provisions is unclear in modern democratic political culture.
Defenders of President Donald Trump have argued that his impeachment by the Democratic House majority would be illegitimate, with Trump himself calling it a "COUP."
Trump's supporters describe the impeachment inquiry as an "attempted coup" or a "slow-motion coup d’état."
President Bill Clinton's supporters also used "coup" rhetoric against Republican foes during his impeachment.
The use of "coup" rhetoric is dangerous as it suggests a departure from the constitutional order and threatens lawless responses.
Such rhetoric indicates operating in a state of exception where normal rules no longer apply.
There is a possibility that the congressional impeachment power has fallen into desuetude and its use would be widely regarded as illegitimate.
In the modern era of a "plebiscitary presidency," direct connection between the people and the president, a congressional impeachment might be seen as equivalent to a coup.
Essay argues against this conclusion and defends impeachment as a vital constitutional feature.

I. The Non-Policymaking Roles of Elected Assemblies

The U.S. Constitution assigned representative assemblies additional functions other than lawmaking.
The Senate was entrusted with shared powers in creating international treaties and appointing governmental officers.
The Senate's role provided a check on executive power.
This aspect of the Senate’s power has been used across American history and its rationale remains robust.
The people are unable to select all governmental officers, thus the power is shared with the Senate.
Other non-legislative roles for Congress have not been as routinely used.
There is a question of whether assigning non-legislative tasks to representative assemblies is still appropriate.
In the extreme, this raises the possibility of a constitutional crisis of fidelity, in which provisions of a constitutional text are abrogated as no longer authoritative.
One provision of indirect democracy that has been eliminated is the selection of U.S. Senators by state legislatures.
The Seventeenth Amendment shifted the responsibility to the people themselves in 1913.
The original scheme reflected the desire to give state governments direct control of the federal government.
After decades under the Constitution and the Civil War, senators lost any sense that they served as representatives of state governments and instead became representatives of state populations.
If senators were supposed to be representing their states, but not their state governments, then why shouldn't senators be directly elected by the people themselves?
Another device of indirect election that has been informally altered is the Electoral College.
The Electoral College was designed to be a temporary, single-purpose Congress to elect a president.
Creating a body that would mirror the composition of Congress and the various compromises in representation was an understandable solution to the problem of how to select a president.
An intermediate office of presidential elector allowed the various states to make their own independent decisions about how to choose those electors, and thus how to allocate their votes for the president.
The framers anticipated that at least some of the states would turn the decision over to the voters.
The rise of organized political parties quickly made those worries obsolete.
Political parties winnowed the list of potential candidates and spread the word to ordinary voters about who those candidates were and why they deserved to be chosen for the presidency.
Presidential electors soon became redundant, and political norms developed to render them innocuous.
If presidential electors had actual agency and possessed full discretion to cast a ballot for any candidate who in their personal judgment would best serve the country’s interest, then the democratic quality of the presidential contest would be significantly reduced.
It was soon established that the presidential electors were not expected to have agency.
They were to be pledged to a particular candidate and to serve as a mere pass-through for the will of the voters.
Commentators emphasized that presidential electors were to be without agency.
Examples:
- “mere passive instruments”
- “a registering machine”
- “mere automata”
- “a messenger”
- “mere cogwheel in the machine, a mere contrivance for giving effect to the election of the people.”
Constitutional practice reduced the office of the presidential elector to a purely ceremonial one.
The so-called Hamilton Electors tried to revive in 2016 a constitutional feature that had been regarded as unacceptably elitist and antidemocratic for over two centuries.
The leaders of this movement lobbying Republican presidential electors to dump Trump argued that if voters showed sufficiently bad judgment in November, then the presidential electors should intercede to correct their mistake.
Discretionary voting by presidential electors would seem to be a particularly poor idea to revive.
Two features of the modern Electoral College reinforce the inappropriateness of presidential electors attempting to play a more substantial role in the selection of the president.
First, electors are chosen for only a single purpose.
Voters are not choosing electors to act on their behalf across a wide range of largely unknown decisions in the future.
Second, the presidential electors themselves are largely unknown to the voters.
For the first several decades, voters generally cast ballots that listed the names of the presidential electors, even though the voters cared little about the identities of the passive instruments that they were sending to cast formal presidential ballot.
In the twentieth century, most states dropped the pretense and simply listed the presidential candidate on the ballot and left off the names of the electors
The Electoral College ceased to operate as a form of indirect democracy, and as such it remained a viable tool of simple democratic election.
A second feature of the constitutional presidential selection system has not been written out of constitutional practice.
In case no presidential candidate wins a simple majority of the votes of the presidential electors, then the House of Representatives chooses the president from the three highest ranking candidates.
In doing so, the House votes by state, with each state delegation casting only a single vote.
It is difficult to imagine this fallback plan being embraced by the general public as an acceptable option in the modern era.
When the 2000 presidential dispute threatened to spill over into Congress for decision without a clear resolution of the Florida vote, surveys showed that the public had little confidence in the legislature and far preferred to have the election dispute resolved in the courts.
At this point, Congress is held in sufficiently low regard that there is little trust in its capacity to perform even more routine functions, let alone arbitrate a presidential election dispute or select a president in the face of a divided electorate.
Even in 1824, when the House chose John Quincy Adams to serve as a president in the absence of an Electoral College winner, it was assailed as subverting the will of the people and foisting a corrupt bargain on the nation.
Congressional intervention in a presidential election would be no better received today.
Congress still possesses the formal constitutional authority to select a president when there is no Electoral College winner, but that formal authority seems particularly inadequate if we ever found ourselves in such a situation.

II. The Impeachment Power

The drafters leaned on the two chambers of Congress to remove misbehaving federal officers through the impeachment process.
Most federal impeachments have involved lower court judges, who cannot otherwise be removed if they refuse to resign.
Executive branch officers can simply be fired or, in the case of the president and vice president, turned out of office at the next election.
Nonetheless, it was the possibility of presidential misconduct that motivated the drafters to include the impeachment device in the Constitution in the first place.
Alexander Hamilton anticipated that the prosecution of misconduct of public men will agitate the passions of the whole community.
The prosecution of the “misconduct of public men . . . will seldom fail to agitate the passions of the whole community, and divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Opponents of a presidential impeachment are likely to characterize the effort to truncate a presidential term as a “coup.”
The rhetoric of impeachment as coup reflects a real sense that the premature removal of a president is a particularly serious move.
Congress has long recognized that impeaching a president is a more significant step than impeaching a judge.
By entrusting the impeachment power to an elected body, the framers were ensuring that political considerations would be at play in any impeachment.
Although the constitutional framers anticipated that a presidential impeachment would stir partisan passions, they still hoped that Congress, and particularly the Senate, could act as a deliberate body capable of judiciously evaluating charges of misconduct.
If Congress is simply a pass-through for the opinions of the general public, then presidents might feel that a Congress controlled by the partisan opposition is doing little more in an impeachment than taking advantage of a partisan tool to attempt to unseat a president who could not be defeated at the ballot box.
Notably, although the impeachment power is viewed through a partisan lens, it is not broadly regarded as beyond the pale.
There are a variety of circumstances in which Congress might pursue a presidential impeachment, and the circumstances might matter for how we think about the charge of an impeachment overturning an election.

A. Charges and Standards

Legislators contemplating a presidential impeachment are not asked to make an open-ended decision about who they think would make the best president.
The Constitution empowers the House to impeach and the Senate to convict only upon demonstrable evidence that the president has engaged in misconduct.
The standard of misconduct that the Constitution provides is neither detailed nor specific.
The impeachment power charges the members of Congress with the responsibility of performing a more specific task than the Electoral College charges the presidential electors with performing.
The House and Senate are not asked to contemplate whether a candidate is qualified or fit to be president.
The House and Senate are asked to perform a more fact-based inquiry (did the president commit specific alleged offenses?) and a more limited evaluative inquiry (does the alleged misconduct rise to the level of an impeachable offense justifying removal?).
The significance of this limited constitutional role assigned to Congress by the constitutional drafters might become particularly weighty if we were to try to expand the scope of impeachable offenses.
Then-House minority leader Gerald Ford infamously suggested in 1970 that impeachable offenses were simply whatever a majority of the House wanted them to be.
For Congress to contemplate removing a president on the basis of such a loose standard as “whatever” the House wants invites the complaint of a coup and undermines the ability of the House to resist the claim that it is simply seeking to overturn an election.
The closer the standard for impeachable offenses is shifted toward a general consideration of individual fitness and competence or quality of policy preferences, the more it mirrors the choice being presented to the voters at an election and the more it suggests that Congress is merely reevaluating the decision that the voters made.
The rhetoric of a coup against the president implies some form of lawlessness in toppling the legitimate head of state.
Congress is sheltered from such a charge precisely by being able to say that their act of impeachment is lawful in that the Constitution both provides for and constrains such a power.
It is similarly the menace of a lawless Congress that Alan Dershowitz exploits to argue for the possibility of judicial review of the decision to impeach and remove a sitting president.
We should be able to distinguish true lawlessness from mere interpretive disagreements and avoid demonizing antagonists in ordinary constitutional disputes as being not merely wrong but also lawless and illegitimate.
There are imaginable circumstances in which a presidential impeachment might look like a coup, but there are few realistic scenarios in which the House would pursue such an impeachment and the Senate would convict on the basis of it.
*There are imaginable circumstances in which a presidential impeachment might look like a coup, but there are few realistic scenarios in which the House would pursue such an impeachment and the Senate would convict on the basis of it.

B. Succession

Congress is empowered to remove a president and disqualify him or her from future office, but not empowered to choose a successor.
The impeachment power would be markedly different if, upon the conviction of a sitting president for an impeachable offense, it directed Congress to immediately select his or her successor.
The Constitution provides that the sitting vice president succeeds an impeached president upon conviction by Senate trial.
Today, the vice president is chosen as part of a party ticket to serve alongside the president pursuant to the Twelfth Amendment.
The vice president is not a partisan rival or the runner-up in the presidential election.
The vice president is a non-presidential candidate selected by the president and the president's party as the president's successor should the president be unable to serve his entire term of office.
Rather than undoing a presidential election, an impeachment and conviction simply trigger the further consequence of the electorate’s own choice.
If the office of the Vice President were to be vacant and the established rules for succession were to pass the office of the president down to an opposition leader, then Congress might more plausibly be said to have the power to overturn the will of the electorate.

C. Mandates

The political authority of presidents has been more variable than the baseline authority provided by the constitutional office would suggest.
The political context in which an individual assumes the presidency matters, with some presidents finding themselves severely hampered by a hostile climate and other presidents finding themselves able to lead a vigorous political coalition.
Moreover, presidents have long claimed additional political authority resting on claims of an electoral mandate.
Would Congress face a larger legitimacy problem if it sought to impeach some presidents as opposed to others?
Perhaps charges of a congressional coup against the president would ring particularly hollow if the president in question had little political authority.
Nonetheless, some presidents are uniquely vulnerable to being toppled by a hostile Congress.
In particular, presidents who come to office by unconventional means might not merely be lacking the kind of electoral mandate that Franklin D. Roosevelt or Ronald Reagan could boast but might be suffering from a legitimacy deficit of their own.
Perhaps vice presidents who inherit the Oval Office outside of a national election of their own have a more limited claim to the office if Congress threatens them with impeachment.
Each can claim some democratic legitimacy. Each was elected, not appointed, to the presidency.
The stakes of pursuing their removal are necessarily different and higher than they would be in the case of a judge or an appointed executive officer.
At the same time, no president is immune from being held to account by impeachment.

D. Timing

We still must face the fundamental concern that led the framers to include an impeachment power in the constitutional text in the first place.
Four years is a long time to trust a single individual with substantial power, and things can go wrong before the next election cycle in a system of fixed terms of office.
If nothing new has happened, then impeachment becomes hard to justify.
But the impeachment device would be pointless if it could not be used against any new misconduct by a president simply on the grounds that the president’s character and disposition was known to the voters at the time of election, and so any future bad behavior had to have been baked into the election results.
Impeachments that are initiated immediately after an election or immediately preceding one might face a particularly heavy burden to demonstrate that they are justified.
If the House were to launch an impeachment inquiry the day after a new president is inaugurated, it would be reasonable to think that the House bears a heavy argumentative burden to demonstrate that it is doing something other than simply rejecting the election results.
Somewhat differently, if the House initiates an impeachment in the shadow of an upcoming presidential election, it bears some burden of explaining why the misconduct at hand cannot be adequately addressed at the ballot box.
If impeachment and removal are a political remedy to a certain kind of serious political problem, then there is always a need to assess whether they are an appropriate or necessary remedy for the immediate problem.

Conclusion

If the Constitution were being drafted today, it is unlikely that we would include all the same mechanisms of indirect democratic governance that the framers did in 1787.
Nonetheless, some mechanisms of indirect accountability might be useful and justifiable.
In particular, a device for impeaching and removing an elected leader for specific acts of misconduct would seem to serve a function that the people cannot readily perform themselves.
The record of presidential conduct is hardly unblemished, but the electoral check has generally been thought adequate to discipline and to replace the chief magistrate.
The more legislators attempt to expand the scope of the impeachment power in order to attempt to remove a president that they find disagreeable, the more they encroach on the proper realm of those constituents.
The constitutional remedy of impeachment is sometimes necessary and remains justifiable, not when legislators believe that the voters have made a bad choice, but when they believe that a president has begun to abuse his office in identifiable and intolerable ways.
That presidential impeachments are difficult or controversial or rare does not mean that they are illegitimate.
We have multiple means to hold presidents accountable for their actions, and the impeachment power is one of them.
The American system is one of constitutional checks and balances, and not just one of democratic elections.