February 11, 2021
Stanford constitutional scholar Jack Rakove discusses second Trump impeachment trial
Stanford scholar Jack Rakove reflects on the start of the unprecedented impeachment trial of a former president and discusses the importance of seeing this case to its end even if few experts doubt the final outcome.
By Ker Than
While it might be tempting to compare the second impeachment of President Donald Trump to past U.S presidential impeachments, including Trump’s first, in order to predict how this one will conclude, history suggests any such exercise would be futile, according to Stanford U.S. historian and constitutional scholar Jack Rakove.
Jack N. Rakove (Image credit: L.A. Cicero)
“At least from a historian’s vantage point, it is difficult if not impossible to derive a coherent theory or doctrine about how impeachments should operate,” Rakove said. “Each one has its own political dynamics that tend to overwhelm our desire to treat impeachment as the equivalent of a legal problem.”
Here Rakove addresses what the Founders wanted to safeguard their fledgling nation against when they created the impeachment process; unpacks the meaning of the “high crimes and misdemeanors” charge against Trump; and explains why he thinks the articles of impeachment are a useless element of the Constitution when presidents are concerned.
Rakove is the William Robertson Coe Professor of History and American Studies, Emeritus, and a professor emeritus of political science in the School of Humanities and Sciences. His research focus includes the origins of the American Revolution and Constitution, the political practice and theory of James Madison, and the role of historical knowledge in constitutional litigation. He is the author of eight books, including Original Meanings: Politics and Ideas in the Making of the Constitution (Alfred Knopf, 1996), which won the Pulitzer Prize for history.
What did the Founding Fathers intend when they created the articles of impeachment? What were they afraid of, and how is that fear reflected in the proceedings we see today?
Any time we think about the origins of the two impeachment clauses (Art. I, Sect. 3; Art. II, Sect. 4), it is important to recognize what a novel institution the presidency was. None of the framers of the Constitution could readily predict how the whole system of presidential election would work. They were uncertain whether the presidential electors would be able to make a decisive choice, or what would happen if a contingent choice of the president had to be made by the House of Representatives. Given that uncertainty about the political sources of presidential power, it made sense to create a mechanism that would make it possible to remove a president when circumstances warranted. Impeachment was the remedy they adopted to deal with especially controversial behavior.
But there was another reason why the framers were drawn to the idea of impeachment: Their political thinking was driven, even dominated, by an abiding fear of corruption, unbridled ambition and unchecked power. They actively worried that presidents who would individually possess the entire “executive power of the United States” would act corruptly, for selfish advantage or traitorous motives.
Was there anything of note for you in the single article of impeachment against President Trump?
I think the penultimate paragraph is a masterpiece of prosecutorial precision and constitutional principle. On various occasions I have written about the presidential election of 1800-01, which we routinely celebrate as the nation’s first peaceful transfer of power after the hotly contested political strife of the 1790s. It would never have occurred to me, a practicing historian for a good half-century now, that I would ever witness an American election where this fundamental principle would be threatened. There is no other way to characterize the events of Jan. 6, and the two months leading up to them, as anything other than a fundamental threat defying and undermining this essential element of democratic governance. The conclusion to the article of impeachment captures this succinctly.
President Trump is charged with “high crimes and misdemeanors” for inciting the mob that assaulted the Capitol. What does this phrase actually mean?
The phrase originated in 14th-century English history, and would easily have covered many of the impeachments that were part of the stuff of the great 17th-century constitutional quarrels between Stuart kings – the first monarchs of the United Kingdom of England, Scotland, Wales and Ireland – and their parliamentary opponents, when impeachment was at its heyday. The framers knew that history very well, and they had no further need to discuss exactly what they thought “high crimes and misdemeanors” would mean in the new American republic.
“High crimes and misdemeanors” is a narrower phrase than “malpractice” or “maladministration,” two other phrases that had been proposed by the Founding Fathers. It implies a harm greater than neglect of duty or gross incompetence – charges that one can readily level against Donald Trump. The implication remains that some concrete harm has been done to the body politic or the constitutional system. The perpetrator could be subject to later legal prosecution, but the immediate concern was to have a basis for removing the offender from office, so that the commission of the harm will end. If the motive or consequences seemed grave enough, it would be perfectly plausible to disqualify the perpetrator from holding any future public office.
How does this impeachment trial compare to past presidential impeachments, including Trump’s first impeachment?
I testified in the House Judiciary Committee hearings on the impeachment of Bill Clinton that took place in November 1998. One point I made then, and still believe, is that it is hard to develop any coherent doctrine of presidential impeachments. The individual cases are too idiosyncratic in their facts to be easily compared. Andrew Johnson should certainly have been impeached for his active efforts to subvert the Reconstruction of the South after the Civil War, which I always told my Stanford students was the greatest tragedy in American constitutional history. But the source of his eventual impeachment in 1868, which narrowly failed conviction, was constitutionally problematic – a trivial footnote to Johnson’s greater failure.
Richard Nixon’s impeachment proceedings and resignation prior to trial made perfect sense. He was obviously complicit in an obstruction of justice, following the Watergate burglary. On the other hand, Bill Clinton’s impeachment made little sense at all. It originated in an incident that took place prior to his presidency, and eventually involved testimony relating to his sexual relations, which are necessarily a private act. Trump’s two impeachments, like Nixon’s, also make perfect sense. The first one manifestly involved an act of bribery, which the impeachment clause explicitly invokes; the second one manifestly involved a high crime and misdemeanor because it actively sought to subvert not only a presidential election but the authority of the constitutional system.
Few experts think Trump will be convicted this time either. If the outcome is already a foregone conclusion, is the impeachment trial still useful from a constitutional or historical perspective?
It is useful insofar as it is likely to demonstrate that the impeachment clauses simply do not work and have become a useless element of the Constitution, at least as far as they relate to the president.
Taking a truly long-term view, one could conclude that the framers of the Constitution (1) borrowed a procedure from English history that, in its 17th-century heyday, was a highly politicized process; (2) applied it to the novel institution of the presidency because there was so much uncertainty about how that office would function and because they shared the reigning 18th-century assumptions about the corrupting nature of power; but (3) also left it to posterity to determine, in a small set of idiosyncratic situations, whether this device for the removal and disqualification of elected officials would actually work. The short answer seems to be that it will not – though as a historian I will patiently wait to see what happens. The House impeachment managers have some time to adduce an enormous amount of damning material, so we have to wait to see what effect its presentation will have.
What will you be looking out for as the case proceeds?
The most important question, and arguably the only real one, is whether Republican senators take seriously their duties to the Constitution, which they have solemnly sworn to preserve, protect and defend.
One is skeptical, but as a historian, in my later years, my philosophical position is that we should never predict what the next day will bring. The charges leveled against Trump do not seem to pose an ambiguous case, but we could make the same statement about the circumstances in the first Trump impeachment. So perhaps that means the real problem that confronts us does not revolve around the efficacy of the impeachment clauses but pivot instead on the true nature and character of the Republican Party.
Is there anything else you would like to add?
There is one last historical explanation that bears mentioning here. Of all the major differences between our political world and that of the framers, the most important, I believe, pivots on the modern professionalization of political careers and the intense desire of incumbents to secure reelection, term after term after term.
James Madison hoped that members of Congress would serve more than one term and develop into skilled legislators, but he correctly expected that most members would rotate in and out of Congress. Read through his essays in The Federalist, especially those devoted to Congress, and you will see that Madison makes only one passing reference to the idea that the desire of Congress members to be reelected would have some impact on their behavior. But he never would have assumed that this desire or ambition would become the independent variable that would control congressional behavior. By contrast, any political scientist operating today would make that desire the dominant factor in explaining congressional behavior. The sad fact of American politics today is that we have produced a class of politicians whose fear of being “primaried” or of not serving yet another term has reached the point where our whole constitutional system is endangered because they are unwilling to elevate their constitutional duties above their political ambitions.