Current & Future Uses of the Impeachment Power

Edith Harold: Hello everyone and welcome to this Federalist Society virtual event. My name is Edith Harold and I'm an Assistant Director of Practice Groups with the Federalist Society. Today we're excited to host this webinar on Current and Future Uses of the impeachment Power featuring Professor Ilya Somin as moderator and Professors Michael Gerhardt and Keith Whittington as our panelists. Professor Somin is a current Professor of Law at George Mason University whose research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He's authored and co-authored numerous books and articles and his work has been cited in decisions of the Supreme Court and lower courts. Somin has served as a visiting professor or scholar at multiple universities including the University of Pennsylvania Law School, the Georgetown University Law Center, the University of Hamburg, Germany, the University of Torcuato Di Tella in Buenos Aires, Argentina, and more. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School. If you'd like to learn more about today's moderator or speakers, their full bios can be viewed on our website fedsoc.org. After our speakers give their opening remarks, we will turn to the audience for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window and we will do our best to answer as many as we can. Finally, and I'll note that as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. And with that Professor Somin, thank you for joining us today. I'll hand things over to you.

Prof. Ilya Somin: Thanks to the Federalist Society for organizing this event and to all of you for watching, I'm going to introduce our distinguished speakers who are two of the leading experts on impeachment in the United States today. So our first speaker will be Keith Whittington, who is the William Nelson Cromwell Professor of Politics at Princeton University, but he's only there perhaps for just a few more days, and he will be moving to Yale Law School, which as a Yale graduate, I think that's a great gain for the institution. He is the author of "The Impeachment Power", a forthcoming book about, you guessed it, impeachment, which is actually now available for pre-order. He's also the author of numerous other books including "Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present" and "Speak Freely, Why Universities Must Defend Free Speech.

Michael Gerhardt will be our second speaker. He is the Burton Craig Distinguished Professor of Jurisprudence at the University of North Carolina. His teaching and research focuses on constitutional conflicts between the presidents in Congress and he's the author of nine books including three that are about impeachment, "The Law of Presidential impeachment", "The Federal Impeachment Process", and "Impeachment, what Everybody Needs to Know." So hopefully by the end of this event he will have told us everything that all of us need to know about impeachment. I could go on and if I told you about all of their achievements, I could take up the entire time doing that, but I think I should turn over the floor to the speakers. So Professor Whittington, if you could start speaking for 10 minutes and then we'll switch to Professor Gerhardt for his 10 minute opening statement. Thank you.

Prof. Keith E. Whittington: Thank you so much. I really appreciate y'all putting this together and the opportunity to talk about this. I've been writing off and on about impeachment issues since I started working on my dissertation in the early nineties, and I certainly expected that impeachments was never really going to be of much practical interest. I thought it was of some immediate scholarly interest to me, but lo and behold, we keep seeming to be interested in impeaching people and so it's become much more salient than I ever would've imagined. And yet, despite its salience and despite the fact that this generation of Americans has seen more high profile impeachments than any generation before, I still think there's a lot about impeachments that we don't really understand very well, that we still find ourselves puzzling through basic features of the process in ways that I think we benefit from trying to think more carefully about the process and what it can accomplish and what it can't very effectively accomplish.

One of the things I think we should expect going forward is we probably are going to be seeing more impeachments despite the fact we've already seen quite a few. I think that's a bit of a surprise in the sense that after the impeachment of President Clinton, I think it was widely thought that part of the political lesson of that impeachment, if not the constitutional legal lessons emerging out of that impeachment. But the political lesson of that impeachment was that it was a mistake to go after a president of that sword. It would rebound to the detriment politically of the party that was pursuing an impeachment. I think that affected Speaker Nancy Pelosi's own calculations about whether or not to pursue an impeachment of President Donald Trump. Having learned from the Clinton impeachment, this would not necessarily go well for Democrats in Congress, but I think things have changed since the Clinton era in terms of how our politics is organized that creates new incentives that really put a lot more pressure on members of Congress to want to pursue impeachments and to benefit from pursuing impeachments than was previously the case.

In this kind of hyperpolarized age that we work in now, there's much more concern about appealing to the base, much more concern about making sure that your reelection constituency in your own primary is in your corner, that small donor donations continue to flow in who are the most activist and extreme in their own views about what you ought to be doing. And as a consequence, some of the sort of aggregate pressures of politics that push back against Republicans in Congress in the Clinton years in the 1990s I don't think create the same kind of headwinds against impeachment efforts in the current period, instead may incentivize the house members to pursue impeachments, which I think means we need to think a lot more carefully then about how we're going to go forward with the impeachment process. And particularly we ought to be thinking about what's the point of pursuing impeachments in a context in which the house is highly motivated potentially to pursue impeachments, but the Senate may not be very likely to convict.

We've obviously experienced that lately as well, in which these high profile impeachments involving presidents are also very hard as I think we should have anticipated to actually get a conviction and removal in the Senate. But if you go into an impeachment process and think that conviction is highly unlikely, for example, maybe even impossible in some cases, is it still worth pursuing an impeachment and if so, why are you doing it? What's the point? Because the most obvious point of pursuing an impeachment obviously is you think that there's an individual in office who needs desperately to be removed right away. And so we need this process to short circuit our usual calendar in order to remove that person much more quickly. But does it still make sense to pursue an impeachment when that removal is extremely unlikely or even we don't think is going to occur at all?

And I think there are some circumstances in which impeachments might still make sense even in that kind of context where you do not expect removal to take place in the Senate, but the house may still think that it makes sense from a constitutional perspective. Again, laying aside in this case, whatever political incentives, it may give you a donor boost or whatever, but just in thinking about the constitutional purposes of the impeachment power, there may still be occasions when it might make sense to pursue an impeachment in the house, even if you think conviction's very unlikely. But it requires I think house members think carefully about why they're actually doing this process, what they're trying to accomplish and doing it. I think partially they ought to be thinking about are there other tools that can accomplish their goals more effectively than the impeachment process? Impeachment may be one method of accomplishing certain political goals, but it's not the only method If you need to remove an official prior to an election, it's really the only game in town, and so you need the tool to be able to do that. But instead what you think is you need to expose wrongdoing by executive officials for example, which I think is a perfectly reasonable reason to want to turn to the impeachment tool, is a way of scrutinizing what some officer has done and whether or not they've engaged in misconduct and try to expose and publicize the misconduct that they've engaged in. We might think that ordinary oversight hearings in the modern era can accomplish that just as effectively as an impeachment hearing per se might. We might also think about impeachments as a mechanism for trying to reinforce existing norms of political behavior on the part of government officials are even more dramatically trying to change the norms surrounding government officials where we think government officials behaving in certain kinds of ways. It's unclear whether or not that's appropriate for them behaving that way or maybe it's even traditional for them behaving that way.

But we think moving forward that's unacceptable. We don't want government officials continue doing that going forward. And you can imagine an impeachment inquiry being part of that process by which we're rethinking how government officials ought to conduct their official business and try to realign incentives for government officials in order to make clear to them that certain kind of behavior is going to be regarded as misconduct going forward and they shouldn't do that in the future. Sometimes you simply need to do that in order to reinforce behavior that everybody already knows is inappropriate behavior. Unfortunately, in many of those occasions where we see somebody engaging in behavior that we already think it's inappropriate and unprofessional for their office, it is possible to get a conviction and removal in the Senate. And so I think we also shouldn't be misled by some of these presidential impeachments to think, "Well, the impeachment power is useless, you can't do anything with it. It doesn't accomplish any purposes."

We've seen many occasions where low level federal judges, for example, have been caught up in corruption schemes or otherwise engaged in misconduct. Everybody recognizes it's misconduct and the house is able to move forward in those circumstances often on a very bipartisan basis. And likewise, you can get convictions in the Senate on a very bipartisan basis precisely because everybody recognizes that the behavior in question is actually misconduct inappropriate for the office holder in question. There's no real political controversy around that and we can still use the impeachment power for those purposes. But you can imagine even in more controversial and contested cases where for example, we're talking about high profile executive officials where we might think that they're engaging in conduct where there's widespread agreement that perhaps it's inappropriate for the office holder, less agreement about what you ought do about it under those circumstances.

So again, imagine the Clinton impeachment scenario in which I think it was widely regarded that President Clinton behaved very badly. The real disagreement was what's the appropriate response given the kinds of actions he's engaged in? And you can imagine an impeachment, even if it's not going to successfully remove the president, you're not successfully going to get a conviction in the Senate, but just going through the house process reinforces the idea that this behavior is wrong and we don't want to see future office engaging in this behavior. We want to create incentives to discourage future office holders from engaging in this behavior so they know it's going to be politically costly if they were to repeat this behavior in the future. And so laying down some markers about what we expect proper and improper behavior looks like is a reasonable use of the impeachment power and sometimes that can be accomplished even if you're just moving through the house process itself.

But I think if you're going to do that, you have to be self-conscious about what you're trying to accomplish, and I think you also have to be careful about how you're doing it because you don't want to send the opposite message, which is that you launch into an impeachment hearing, you wind up politicizing things that previously were a bit of a consensus. You wind up making people think, well maybe it's just a partisan issue and I shouldn't engage in this issue and maybe if I don't get convicted in the Senate, maybe the lesson the politicians learn going forward is this isn't a serious threat and I can engage in this behavior and get off scot free at the end of that process. And so even if you are morally outraged as a member of Congress and think something needs to be done about this government official who in your view is behaving very badly, I think you have to be thinking very carefully about strategically what's the most useful thing to do under those circumstances and will I actually accomplish the objectives I'm trying to accomplish if I pursue an impeachment rather than trying to pursue something else that might similarly send the same message or be more consequential in getting the effects that I ultimately want in the long term.

Prof. Ilya Somin: So our next speaker is Professor Michael Gerhardt. Please go ahead.

Prof. Michael Gerhardt: Thank you Ilya and thank you to the Federalist Society for the opportunity to appear today and thank you to Keith for his always insightful and important insights into the process. So I have nothing to disagree with that Keith has said, though I am going to take a slightly different tack for me. The big question that is really in the background, if not eventually in the foreground when we talk about impeachment is whether or not the constitution matters and more particularly if it does matter in what way. So I want to take, those are the questions I've tasked myself to consider, but I want to suggest four different factors or developments which I think help illuminate what might be the answers to those big questions. The first is, as Keith has already noted, is the difficulty in convicting presidents of the United States in the impeachment process.

I think there are two big reasons for that. There could be more than that, but two particularly important reasons for us to flag. The first is the Constitution itself. The Constitution makes removal of anyone who's convicted in the impeachment process only possible if you get at least two thirds approval in the Senate. Given the high stakes in presidential impeachment trials, it's highly unlikely you're going to get at least two thirds approval in any circumstance to convict a president no matter what that president did. Our paradigm case here is Richard Nixon. Nixon works as a paradigm case because there were a number of different factors then that made it possible, but none of those factors exist today. One of those factors was the possibility of bipartisanship. Another factor was a belief in the process that extended beyond just political or partisan concerns. And that belief in the process I think has really been weakened a great deal.

But another important factor is the rise of political party fidelity. We know political parties are important and they're not the kind of thing the framers perhaps did not, they didn't spend enough time thinking about, but in the context of impeachment, attachment to political party can be determinative. And so if the president has members of his party in sufficient numbers in the Senate, all the President has to do to avoid conviction is keep those members organized. And that's exactly what we saw with Clinton. And so also what we saw both times with President Trump, it didn't matter what the merits of the case happened to be, what mattered is could they keep their fellow partisans together? And the answer has been yes. So it's going to be very hard moving forward given the hyperpolarized atmosphere Keith described to expect party members to throw their president under the bus.

What made Trump's second impeachment trial perhaps interesting and significant is seven members of his party crossed the aisle to vote to convict him. That's the largest number of people from a president's party to vote to convict a president in an impeachment trial, but it still fell 10 votes short, and so the future doesn't look particularly good when we consider how those factors which make conviction nearly impossible work together against conviction. The second big, I guess, development which makes impeachment of presidents in impeachment trials difficult, if not impossible, is the advantage I believe that the presidency has in the process and it's an advantage over Congress. One is the President still has the bully pulpit and therefore the President's message can get out more clearly. But keep in mind also presidents have an interest and their lawyers have an interest in trying to define the process, particularly the standard for impeachment that works to their advantage.

So with Andrew Johnson, his lawyers argued for example that there has to be an actual crime in order for there to be an impeachable offense and in order to justify a conviction that worked really well for them because Johnson wasn't really being accused of having done something criminal with Bill Clinton. His argument was, "Well, not all crimes are impeachable." That worked really well for Clinton because he might've committed a crime, but it wasn't considered to be serious enough to rise to the level of impeachable offense. With Donald Trump when we look at the first impeachment trial, the charge there was obstruction of Congress as well as obstruction of justice. One of those obstruction of justice could be a crime, but Trump argued that wasn't going to be possible because he's the president of the United States and the President basically is the law and he can't obstruct himself, so to speak. At the same time, Trump argued against obstruction of Congress charges. There's nothing criminal there.

By the way, he also argued if there is something criminal, why not try that first? Those different arguments gave, let's say cover for Republican senators to vote to acquit in the second impeachment trial of President Trump. The argument was that he had incited an insurrection. The house managed to craft its one impeachment article in a way that tracked the criminal elements of incitement, of insurrection, and therefore what Trump's lawyers did in the trial was to argue that those elements weren't satisfied. All of that obscured the fact that you don't need a criminal offense in order to actually have committed an impeachable offense. But the arguments the President makes are not made to help people understand the process better. They're made to obviously make it more difficult for them to be convicted. On top of all that the President has the Justice Department filled with lawyers, not to mention the White House counsel's office filled with lawyers, most of whom, if not all of whom are vested in keeping him in office.

That means you get a lot of legal arguments coming out from a lot of different people on the executive side that in some respects, overwhelm whatever the congressional arguments have to be. So that complicates if not prevents impeachment conviction in the Senate. The third factor, as Keith has already suggested, is politics. The political stakes in the presidential impeachment are enormously high. They're probably the highest that are ever faced in an impeachment trial, but the politics of maintaining a president in office because of other reasons why we want that president to be there are going to overwhelm whatever the politics might be that could provide some kind of consensus in favor of impeachment. So the politics turn out to be relatively shortsighted and self-serving on the behalf of the President's fellow partisans, and that politics is extremely entrenched insofar as the President's party is concerned. A fourth development, however, is that in spite of all the things we've just said, I think impeachment still matters and therefore the Constitution can still matter and a couple of different ways.

One is, as Keith has already pointed out, with respect to impeachment proceedings against lower court judges, we should note those do happen. The only people actually convicted and removed from office have been lower court judges. That's in part because they don't have a lot of constituents. Their political power is close to nil. However, Supreme Court Justice might actually be somebody that politicians in Congress have a great deal of interest in keeping an office, and therefore there's almost nothing that would move those members of Congress to vote to convict again. Having said all that, it's still important to recognize a couple things. One is that an impeachment of a president or an impeachment of anyone still hurts. It is not something presidents like to have on their legacy. So Bill Clinton is still probably not happy even though he was acquitted that the first line of his obituary is going to say that he's the second president of the United States impeached.

We know Trump didn't like having been impeached once or twice because he said to his fellow partisans in the House, "Impeach Biden to get even." So it obviously had some effect on him that made him unhappy. That's some evidence that impeachment can matter. The other thing we might want to pay attention to, and this will just be the last point I made make in the beginning, is not to overlook the impeachment of President Biden's Secretary of Homeland Security. It took a lot for the House to put together a majority in favor of Alejandro Mayorkas' impeachment. It took two votes and it only passed by a single vote, and it didn't include all Republicans in favor of the impeachment. That may be in part because Republicans were beginning to think maybe this is not going to be the political fiesta we had hoped it would be. In addition to that, there may have been views that there are other issues of greater concern, and this is a waste of time.

So in the Senate, the trial of Alejandro Mayorkas lasted about a minute, and that's because as experts and I should say the House Republicans own experts all agreed there had not been evidence that Mayorkas had actually committed an impeachable offense. That's a problem if you're trying to arrange for a conviction. And if the Republicans own experts and many of the Republicans own members agree, there's not an impeachable offense here, that trial's going to move like lightning, and that was the fastest impeachment trial we've ever had in American history. It lasted about two hours. So I think all that suggests to me that actually the process though it's not perfect by any means, still can matter and still matters to some of the members of Congress because they don't want to be ultimately, I think, on the wrong side of history. Yes, there political reasons to go after Alejandro Mayorkas and Biden, but if you're going to lose that battle, that means that Biden wins and it also means that Mayorkas may prevail even though they might be injured or hurt a little bit in the process. That may be a good place for me to stop.

Prof. Ilya Somin: Okay, so I'm going to give each of you an opportunity for a minute or two to briefly respond to the other if you so wish. So I guess we'll go in the same order. So Keith, if you'd like to speak for a minute or two, and then Michael, if you want to, Keith, please go ahead.

Prof. Keith E. Whittington: Yeah, no, I agree with all those points there. I think they're great points about how to think about the process, and I particularly like putting on the table this question of what does the recent history of Impeachments tell us about whether or not the constitution still matters, at least in this context. And I think that completely played out maybe in a couple of different ways. They're a little different than how Michael raised it, but I think can build on that point. One is we might think, and it certainly, I heard plenty of people saying this after the Trump impeachments failed to get conviction in the Senate was, well, if he can't impeach a president for engaging in this kind of behavior, then doesn't that mean presidents can just be lawless and there's no constraints anymore on presidential power. The constitution's lost if we've lost this tool. And of course I think that's overstated. And partially though it's an important lesson, think about why it's overstated. The framers might've imagined actually the impeachment would in fact be a really important vehicle for trying to defend constitutional boundaries. I think we've discovered over the course of American history, it's not nearly as important as they might've thought it would be for serving that purpose in part for various reasons. But among those reasons is in part because of the rise of judicial review that if we think presidents violate the law, if we think presidents violate the Constitution, our first instinct is not going to necessarily be to impeach them. Our first instinct's going to be file a lawsuit, and often that's effective and actually bringing them back to heal reconstituting the rule of law against those violations. And so it's not necessary to remove an officer because of those kinds of violations.

So I think in part there's an encouraging lesson there that may be, even if the impeachment power is not as effective or as useful as some might have hoped, it doesn't mean all is lost relative to the meaning of the Constitution. But to get a little closer to the point that Michael was raising, I think about whether or not the Constitution might be meaningless in this context, you worry a lot that maybe members of Congress don't take their constitutional responsibilities seriously when engaging in impeachments. And it's part of what attracted me to thinking about the impeachment power in the first place because it is one of these opportunities where Congress is really all on its own in thinking about what its constitutional responsibilities really are, what the text to Constitution means in this context, how to implement, enforce it. Courts are not going to come in and save them if they make mistakes in this regard. And I think Congress often does take those constitutional responsibilities extremely seriously. 

But I think we've seen in the context of these very high profile political impeachments of presidents in particular, that it's really hard for members of Congress to balance what they perceive as their potential constitutional obligations and what the Constitution might require and their political incentives in those particular moments, particular moments. And I think there is always a real risk that members of Congress will not do their full duty to the Constitution either in trying to genuinely interpret what the Constitution requires and act accordingly to fulfill their duty as they understand it in these moments, just because they see it as too politically costly to do that. And that's always a risk with constitutions and elected officials that if it's too politically costly to actually do what the Constitution says, there's often going to be a temptation to not do what the Constitution says. And the impeachment is not the only context in which that arises, but I think it may be a particularly visible context in which we see it arising. And so it requires a lot of pressure from the other side then to really tell members of Congress that even if it's inconvenient to do what the Constitution requires, they nonetheless should be faithful to thinking carefully about the Constitution in these moments and making a judgment that into account what they think the Constitution means and requires and what's best for the constitutional system and not just what's best for their immediate career.

Prof. Ilya Somin: Professor Gerhardt?

Prof. Michael Gerhardt: Again, I agree with what Keith has said, so I just have two points. The first is, and again, this kind of echoes Keith's point that he just made, impeachments do not happen in a vacuum. So when you've got an impeachment of a president's cabinet member for example, there's a lot of other stuff going on. We've got to think about what may be the competing legislative priorities at the time. What's the partisan makeup of Congress? That's all going to matter. And also what's going to matter is whether or not there are these other lawsuits which actually may either take the wind out of the sails of an impeachment or perhaps help move it along. Famously, the Watergate tapes case, a unanimous opinion, ordering Nixon to comply clearly gave momentum to a process that was already unfolding, at which point Nixon had to recognize, oh, he's now got two branches coming after him, not just one.

That's a problem. The second related point is I think we can find some indicia of the effectiveness of impeachment from what presidents choose not to do. So. For example, Nixon thinks about not complying with the Watergate tapes decision, but ends up complying that decision in part was shaped by his lawyer's recognition that had Nixon chosen not to comply. It's just another ground for impeachment. Trump thinks about firing Robert Mueller, but his counsel says, "Don't do it because you'll get impeached." So Trump doesn't do it. And part of the, I guess one problem recognizing that President's decisions not to do the things may be evidence of impeachments effectiveness is we don't know all the things they've chosen not to do. Building a public record on that is a very difficult thing to do, but it may help us to understand why when we get in the middle of these presidential impeachments, people look back and say, well, why wasn't Wilson impeached for the Red scare? Why wasn't Roosevelt impeached for let's say, lying to Congress about getting weapons to England? We can think of a lot of things presidents do that are not great. We can think of a lot of things that presidents do that are really bad, but impeachment does not always come up in those cases. And I think it's partly because there are other competing factors, and when we recognize other competing factors, there may be other ways to hold the President accountable for the misconduct without bringing out what one famous commentator described as the "one hundred ton gun" of impeachment.

Prof. Ilya Somin: So we have a number of questions in the queue, and I'll start off with the first one, which comes from Professor Josh Braver of the University of Wisconsin, my co-author in a forthcoming article, albeit not one about impeachment, he asks, can you explain why there was so much resistance among House Republicans to impeaching by Alejandro Mayorkas considering all the incentives for Republicans that Keith laid out like small donors? Wouldn't it make sense to do it and then just let the Senate acquit similarly, why the resistance among House Republicans to impeaching Biden? Isn't it just good meat for their base? So I think since this question comes out of points that Keith made, I'll throw it out to him first, but obviously Michael, if you wish to comment as well, you can, Keith, go ahead.

Prof. Keith E. Whittington: Yeah, no, I think the impeachment of Mayorkas is interesting in this regard and I don't have a really great answer except that the impeachment charges per se didn't seem to get that much political traction. And so the amount of political upside to continue pursuing it, especially for those who are in more swing districts, didn't seem to be that big and that probably undercut some of the movement that we might've otherwise have seen. It also struck me that at the time some Republican members of Congress started to see this increasingly as a distraction, which goes again to this question about what's your best approach to dealing with the problems that you see? And if part of what you want to do is highlight problems at the border, highlight what you think of as executive branch misconduct and lack of efficacy in dealing with problems at the border, is the impeachment the best vehicle for doing that or are you actually going to wind up muddying your message and building up sympathy for the administration rather than actually building support? For the larger point, it seemed like the Republicans were really more interested in which is to get people to pay attention to the border. And so it struck me that the impeachment as it was playing out and as it was developing, was not serving even the political purposes that people might have imagined it serving. I think likewise with Biden, it's easy to imagine that Republicans would be very happy to pursue an impeachment if they could find the right charge to do it. And again, the question in part is can they find a sufficiently plausible hook to impeachments to make the process seem like a reasonable one to the average low information voter who's only barely paying attention? You need a narrative around that. You need a set of facts around that that you think are going to be compelling because ultimately one thing about having an impeachment process occur within an elected legislature is it's inevitably political.

And one of the things that makes it inevitably political is it means that people who are involved in process house members in this case thinking about whether or not to impeach in the first place, ultimately have to go back to their constituents and explain what they did and have to explain this was a good decision I made either to pursue the impeachment or not to pursue an impeachment as the case may be, it was the right decision. Here's why. And we underestimate sometimes that politicians are thinking about, "Can I explain this to my constituents?" and if I can't come up with a good explanation that my constituents are going to buy on this, I don't want to take that vote and I don't want to pursue that process. And so I don't think the Republicans have yet managed to figure out as much as they might like to what the right narrative is to be able to actually impeach Biden such that they can then take it to their voters and say, I did the right thing here and I was fighting a good fight even if we lost at the end of the day, even if the vote isn't successful in the House or even if it doesn't lead to conviction in the Senate.

Prof. Michael Gerhardt: Great points that Keith makes, I just want to add a couple thoughts. The first is that with me Mayorkas, it was I think pretty obvious from the beginning that it was an impeachment in search of evidence. And so the whole point of trying to go after Mayorkas was to go after Biden's immigration policy, and it was not easy to figure out how can we dress that up as a kind of legal or constitutional argument that somebody's committed an impeachable offense. Think about it this way. In the trial, had there ever been a trial, the way the Republicans wanted to conduct it, the subject would've been Biden's immigration policy. It's weird to put a policy on trial, and I think that just became more than the partisan hope could carry. And I think that same problem torpedoed an attempt to impeach Biden because once again, one of the arguments against Biden is, oh, his immigration policy and apparently anything his son ever did. Now that becomes complicated in practice as Keith was suggesting.

One thing about an impeachment against the President that I think needs to be required in order for it to even have legs and get off the ground is it's simple to understand. The narrative that Keith talks about is it's got to be digestible, it's got to be something very easily explained. And if you say, "Well, Mayorkas is not enforcing immigration law the way we like", okay, well let's see if we can think of a good answer to that, well antidote to that. Well, maybe an election could be a pretty good place to fix that. And the same with Biden. If you think if you just don't like Joe Biden rather than make up stuff, why not just say you don't like Joe Biden and you're going to vote for somebody else? And I think that those two impeachments kind of fell apart in part because even the people who wanted the impeachment couldn't keep their team together. Keep in mind the witnesses kind of went rogue and they started saying, "Oh, you've got no case." Ken Buck, a very conservative Republican, said, look, I think this is a waste of time. We should not do this. When you've got that kind of let's say dissent, it hurts the narrative and the narrative is never simple or clear cut or even supported by the facts with either Mayorkas or Biden.

Prof. Keith E. Whittington: I should just add I guess on this, what they guy almost expected there was going to be more of an impeachment effort about what surrounding Biden's student loan cancellation policies, where there is a narrative there to tell about violating the rule of law and violating statutes in order to pay off potential constituents before an election. And especially with Biden trying to design that or the Biden administration trying to design that program initially to shield it from any kind of judicial scrutiny, it was easier to make the case as well that there's no solution here except to go after the office holder rather than take it to court, for example. And I think to some degree, the courts have bailed the Biden administration out on this by creating more obstacles to some of those cancellation policies, enforcing the administration to go back to the drawing board on some of those and might have taken the wind out of sails a little bit about what might otherwise been more of an impeachment issue.

Prof. Michael Gerhardt: And if I may add to what Keith just said, one of the original purposes of impeachment was that it was designed to go after misconduct that the law couldn't really address. And the impeachments we've been talking about so far are situations in which the law either could address it or an elections could address it, but that's not what impeachment is designed to do. So for example, a classic instance of impeachment misconduct insofar as the framers are concern would be if a president lied to the Senate in order to secure a treaties ratification, you can't go to court to fix that. Election's not necessarily going to fix that. Of course removing the president would facilitate that, but impeachment ends up being ideally designed for that because this is an abuse of power that isn't addressable through other mechanisms.

Prof. Ilya Somin: So we're going to move on to the next question, which comes from an anonymous audience member. This one perhaps a little bit simpler. Will the Supreme Court's decision on immunity increase the use of impeachment? Of course, we don't yet have the Supreme Court's decision on immunity. Perhaps the two of you can tell us what the impact might be depending on what the court might do.

Prof. Michael Gerhardt: Should I jump in first?

Prof. Keith E. Whittington: Yeah, if you have thoughts, I'm thinking,

Prof. Michael Gerhardt: Let me make a quick phone call. No, I'm just kidding. I think in that circumstance what we've got is a situation in which the court's opinion certainly could result in a need or an incentive for impeachment to address things. The way to put that I think is the broader the court defines the president's official duties, the more the court is basically saying the only way you're going to get at that is either through an election. Keep in mind, reelected presidents are not subject to election. Again, it's no coincidence that Clinton and Nixon were basically facing impeachment in their second terms. And then with regard to that particular circumstance with the broader, the official duties of a president are defined by the court, the narrower the mechanisms for addressing presidential accountability for the particular misconduct becomes

Prof. Keith E. Whittington: Yeah, that seems right potentially that depending on how the immunity decision is written and comes out, it's possible it will wind up telling us there's no other means of address for these issues and it sort of channels things into the impeachment procedure. The other possibility I guess associated with that is if you wind up with broad immunity from the president from later legal liability for misconduct in office of various sorts, perhaps it incentivizes presidents to behave badly in office to engage in conduct they otherwise wouldn't have engaged in because they're fearful of being held legally liable. That seems to be part of people's thinking about what they think is at stake in the decision like this. I have to admit, I'm quite skeptical that presidents will alter their behavior one way or another depending on how this immunity issue comes out. I don't think this worry about future legal liability weighs very heavily on the part of presidents. And so I doubt that you'd wind up with an immunity decision, for example, really incentivize presidents to go out there and engage in all kinds of real misconduct that then encourages Congress to say, "Oh, wait a second, now we've got a string of really abusive presidents we have to reign in because the Supreme Court has unleashed them through the immunity decision." So my suspicion is the effect here will be fairly small.

Prof. Michael Gerhardt: If I may add to that just a little bit, it is just the simple fact that lawsuits take time. And so if you're going to challenge something the president's done in court, you're not going to get any answer to that for at least a couple years. So generally speaking, the case is going to move very slowly through the legal process, in which case, whatever the complaint is, it's just kind of lingering there. And maybe it's the kind of complaint that by lingering there hurts the president's reputation or popularity to some extent, but that's the worse of it. The longer the case takes in court, the better off in many respects the president is because it doesn't affect his daily decision-making.

Prof. Ilya Somin: We have more questions. Here's one from another prominent legal scholar, Professor Harry Pullman. He asks, "If impeachment is yet effective, not so much as a way to remove officials who have engaged in misconduct but rather to reaffirm the standards of conduct that are expected as Keith said, or to deter presidents from engaging in more misconduct than the otherwise. We have engaged in, as Michael Gerhardt said, then why do so many constitutional commentators complain that the country continues to move in a direction of an imperial and unaccountable presidency?"

Prof. Keith E. Whittington: I think part of the reason why is because we don't use the impeachment power enough. I actually think that if Congress threatened to impeach presidents more often and they actually pursued some impeachments more often for good reasons, if they just pursue half impeachments that are not well justified, I think it will weaken the tool in general. People will not take it very seriously. The messaging associated with impeaching a president will not be taken very seriously, so it won't accomplish those ends. But if you have good reasons for impeaching a president, good constitutional reasons and you are able to build that case and explain it to the public and pursue it, I think then you can make it more politically costly for presidents to behave badly and that will have some consequences about how expansive the presidency is. I mean the other of course background of this about why the president is so imperial in general from this perspective is partially because Congress has facilitated a great deal of this by passing these very broadly worded statutes that creates a great deal of discretion on the part of presidents more broadly. And so one of the challenges, whether we think about it with or Biden and the immigration policy or even the student loan context is then you're stuck with this question and really trying to parse these very broadly word statutes and say, well, did the president or Mayorkas actually have the power to do this thing that we think is very abusive? And it's not actually easy to tell in a lot of these circumstances because there's a plausible legal argument to say, well, Congress invested us with a lot of authority to make these decisions. And so it makes it harder to pursue an impeachment if you actually wanted to do that because it's harder to show they actually were abusing or seizing power they didn't actually have. And it goes to the point that in the background, Congress is busily empowering the president to make all kinds of choices because Congress would rather have the President making the controversial calls rather than Congress have to actually make an immigration policy, for example.

Prof. Michael Gerhardt: I agree completely. I do think that if you remove impeachment or having impeachment as a check or for that matter, if you remove impeachment as a check, lemme rephrase that. If you remove impeachment as a check that may facilitate or help sort of nurture the presidency into an imperial office, but I think it's already moving in that direction because of all the delegations Keith just described over the 20th century and even into the 21st century, the presidency has grown stronger in part because Congress has allowed it to grow stronger, and that's just separate from impeachment. I don't know that impeachment is going to have much effect on the growth, maybe even the inevitable growth of the imperial presidency. And just on top of all that, I think Americans, I don't know that I have the data to back this up, but I think that Americans by and large are more comfortable with the President doing things than Congress doing things. And of course presidents can move faster than Congress can move, and that may be one reason why people like the President better than Congress. But if people like the President better because the President moves faster, facilitated by Congress, that's not going to change because of impeachment.

Prof. Keith E. Whittington: And one of the truly remarkable things after the Trump administration is that you didn't have a similar sort of response on the part of members of Congress to rethink some of the delegation of power to the White House and to the executive branch that you saw after the Nixon presidency where you had a serious move in Congress to say, we need to re-empower Congress because too much has slid over to the executive branch and real efforts Then to try to figure out how do we restrict that, which say we're not entirely successful doing. It's a very hard task to try to do because they didn't want to give up all kinds of things in the process, but there was at least an interest in doing it. One of the amazing things about the Trump presidency and now the Biden presidency is there's lots of members of Congress who want to complain about those presidents and how they exercise discretion, but very little interest in actually redrafting statutes to say maybe we need to give the president executive branch less discretion moving forward so they don't make some of these decisions that we don't like down the road. Even on relatively small things like how easy is it to build a border wall, for example, Congress appears to have a very hard time saying, well, even that bit of discretion, we want to pull back in a very serious way to make it harder for presidents to engage in that behavior that we're going to call it misconduct when they do it, but we're not going to take any statutory steps to try to make it less likely.

Prof. Ilya Somin: I would note on the border wall question, the NDAA of 2021 actually does close the particular loopholes that Trump tried to exploit. There was an argument whether those loopholes existed in the first place. I think maybe they didn't, but Congress did fix that. But your larger point I'm sure is correct that there's a lot of discretion that Congress has made little effort to fix.

Prof. Keith E. Whittington: Yeah, no, I agree on both points in both. The loophole I think was legally dubious in the first place that the administration had exploited, but Congress even then moved remarkably slow about trying to tighten it up to make it less likely to be used that way in the future.

Prof. Ilya Somin: Yes, we have further questions. We'll try to get to as many as we can in the time available. The next question is, I am interested to hear the panel's thoughts on impeachment and the political questions doctrine. Are there any instances where the political questions doctrine would not prevent review of an impeachment case? Justice suitor's concurrence in Nixon versus United States mentions if the Senate were to do a trial by coin toss or convict because the person is a bad guy, this is the case of Judge Walter Nixon, a lower court judge rather than President Richard Nixon who should not be confused. So the question is sort of about whether there are any limits to the doctrine that matters related to impeachment are political questions that courts are not supposed to review.

Prof. Keith E. Whittington: So I have a chapter in the book now available for pre-order that talks specifically about political questions. I think both as a doctrinal matter, there's good reasons to think that the courts will stay out. I also think as a pragmatic matter, it makes sense for the courts to stay out. So if you have a Senate for example, willing to convict people on the basis of coin tosses or because we think this is a really bad guy holding the office, if I was the Supreme Court justice, I would not be quick to want to jump into that and think somehow I will be immune from being the next person who's going to get the coin toss after the president on this front. The Senate has gone that rogue, the court's probably not going to have the capacity to do much about it. And so it makes a lot of sense I think for the Senate, for the court to stay out of this except potentially on some very marginal issues on the sides and procedural issues associated with the impeachment power that perhaps Congress is more willing to tolerate judicial interventions. And it's notable that some state courts have been more interventionists on the impeachment power than we've seen the federal courts be on this front. But I'm quite skeptical that we'd ever see the US Supreme Court being willing to make a significant decision constraining Congress's authority under the impeachment power.

Prof. Michael Gerhardt: I think the coin toss example is ultimately not a very hard question for what, because of what Keith just said, members of the House, members of the Senate will make their decisions based on whatever they're going to make them on, and it could be as dumb as you could possibly imagine, but that's not going to be subject to judicial review after all these members of Congress are among other things politically accountable for their arguable mistakes. I think the harder case is if the Senate tries to claim that it convicted a president, but it didn't necessarily pass that two thirds approval threshold, in other words, the violation of an explicit safeguard, then it becomes much more like Powell v. McCormick and I think therefore it becomes more likely there could be judicial intervention. That's the kind of question that keeps me up late at night.

Prof. Ilya Somin: So I think we have time for perhaps one more question and so we'll go with this one. Thanks for the insights on the impeachment powers. My question is how do you think the next potential impeachment, if any, will occur? I think something that wasn't discussed as the role of the judiciary, if the executive has a majority of justices that will align with his political philosophy, could that also affect the impeachment process? I think the vast majority of Americans would see it as a political fiasco given the stakes in partisanship in our government.

Prof. Keith E. Whittington: Well, yeah. So I guess as I just said, I think it's unlikely the courts would intervene in an impeachment. So I agree, I think people would likely see as a fiasco, although again, it's a question about the relative trust in different institutions at different times, right? You can imagine the Senate behaving so badly that people sort of want the court to rescue the country from a terribly behaving senate depending again on the relative trust of the two institutions in the particular moment. So it's hard to say from that front as to where next impeachments will come from and where they're going to go. It would not surprise me if we see more presidential impeachments in the intermediate future, if not the immediate future at least. And likewise, it wouldn't surprise me. We don't see further effort to think about trying to impeach executive branch officials in some fashion and it wouldn't shock me. I think especially if the Democrats when big majorities in the two chambers, if somebody doesn't start thinking about trying to impeach some conservative federal judges, including maybe even some Supreme Court justices in our current political environment, that just seems like a potential place people will go.

Prof. Michael Gerhardt: So I agree with Keith's last point, so I won't name anybody in particular, but I think if I had to guess where impeachment might go next, it might be focusing on Supreme Court Justices. As far as presidents go, I think it's, it's going to become harder for a successful impeachment to get started or mounted against the next president. I'm not saying it's impossible. It may be a little harder. And I say that in part because the examples, the small set of data we have with the Biden and Mayorkas cases demonstrates that even when there's this hyper partisan divide as Keith described, and as we all know, it still didn't result in a conviction and it barely amounted to an impeachment. And I think let's not lose sight of the fact it took a long time for House managers to get named after the Mayorkas impeachment, I think in part because they couldn't agree on what they were going to argue in front of the Senate.

The lesson therefore could well be, well, if we're going to go after the President or a high ranking official like the Attorney General or Supreme Court Justice, we've got to have something concrete and now they may be able to come up with something concrete, but in the absence of that, I think impeachment not going to be the first thing they think about. Last but not least in my experience, and I could be wrong, I don't think Congress exits an impeachment process at the end of it with an increased appetite for impeachment. My experience suggests that members of Congress dislike it. They don't like having to go through it, and particularly after Clinton and Trump one and Trump two, I don't think there were many people in the house or particularly in the Senate who came away thinking "That was really fun. Let's try and do that again." I think it was probably the opposite.

Prof. Ilya Somin: We have only a minute or two left, so I'll give each of you a very brief opportunity to sum up any points to you might care to sum up, and then we will conclude I think once again Federalist Society for organizing this and all of the attendees for watching.

Prof. Keith E. Whittington : No, I just say this was great. I really appreciate it. We covered a lot of important issues, got nice questions. As always. There's more that could be talked about. There are really important continuing issues about what counts within the scope of the impeachment power, for example, that it will never be done with, but they're important things to think about, especially when Congress is actually thinking about whether or not to impeach somebody important, to actually try to think about what's your theory of the impeachment power and what do you think is actually an impeachable offense.

Prof. Michael Gerhardt: I'm going to end with two points. The first is to thank Ilya, the Federalist Society, and Keith for the opportunity to do the program. It's really a great honor and I appreciate it very much. The second point is, I think something lawyers should be thinking about in the future is how little traction the explanation of impeachment law has had in the United States. We went through Nixon, then we go through Clinton, then we go through Trump twice at the end of it. It seemed like with each of these circumstances, everybody had to relearn the so-called Law of Impeachment, and they still get it oftentimes not correct, and so I think it's something that is a reflection of the hyper-partisan political divide. We've got Some people just don't want to get the law right, or they don't care about getting it right. But as lawyers, I'm going to venture to say, and Keith, I think of as a super lawyer, but as lawyers and a super lawyer, I think we care about the rule of law and we care about trying to understand the law as best we can without making stuff up. And I think we should think about, okay, why is it on a matter that's so high profile? There's still not as much traction insofar as understanding the process is concerned. That's something I think we all need to work on.

Prof. Ilya Somin: Thank you both for your insights and thanks again to the Federalist Society for organizing this event.

Edith Harold: On behalf of the Federalist Society, I want to thank Professors Somin, Whittington and Gerhardt for the benefit of their time and expertise today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website fedsoc.org or follow us on all major social media platforms to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.