14 The New York Review
imagine an executive who would pur-
port to deny the House its power to im-
peach him. I can find no example of any
royal official in England who defied or
denied the impeachment power of the
House of Commons.
The framers did, however, provide
a remedy for a president who refused
to cooperate in an impeachment in-
quiry: impeachment itself. As a matter
of basic constitutional logic, the only
thing the House of Representatives can
do when faced with presidential refusal
to cooperate in impeachment is to im-
peach the president for that same act of
obstruction. The Constitution makes
this possible because it does not specify
any process that the House must use to
impeach, or indeed require any investi-
gation at all before impeachment. The
House’s power to impeach is effectively
absolute. All it takes is a majority vote.
If the House lacked the power to
impeach on the basis of obstruction
of Congress, it is easy to see what the
consequences would be. The president
could impede any investigation of his
conduct initiated within the executive
branch, because the entirety of the
executive branch answers to him. The
view of the Department of Justice is
that the president cannot be criminally
indicted while in office. Even if that
opinion, memorialized in memoranda
by multiple administrations, is consti-
tutionally incorrect, it makes no prac-
tical difference—all federal criminal
prosecutions must be initiated by the
executive branch.^5
A president who cannot be crimi-
nally investigated and also cannot be
investigated by Congress would be ef-
fectively above the law. That is why it is
so constitutionally evident that obstruc-
tion of Congress must be a high crime
and misdemeanor. Denying Congress’s
power to conduct an impeachment in-
quiry subverts the foundation of demo-
cratic government.
Trump’s first public assertion of his
refusal to cooperate with Congress
came in a letter from White House
counsel Pat Cipollone to congres-
sional leaders dated October 8, 2019.
The letter not only refused all coop-
eration; it went so far as to condemn
the House’s impeachment inquiry as
unconstitutional. Perhaps needless to
say, the president cannot be the judge
of the constitutionality of an effort to
impeach him.
The main defense available to
Trump on this charge is that the Su-
preme Court, in the Nixon tapes case,
spoke of a sphere of “executive privi-
lege,” in which senior executive branch
officials under some circumstances
might not be required to answer ques-
tions. The case concerned a judicial
subpoena rather than a congressional
subpoena, but the principle might well
be the same. Trump’s defenders may
say that president must have the legiti-
mate right to go to the courts to chal-
lenge subpoenas against the executive
branch, and that doing so should not
count as an impeachable offense. Ac-
cording to this view, Trump’s directive
to the executive branch and its officials
is not obstruction of Congress, but
rather a justifiable assertion of execu-
tive privilege that should be fought out
in the courts.
No doubt the Supreme Court’s cre-
ation of the doctrine of executive privi-
lege affords a president some latitude
in challenging congressional subpoe-
nas directed at his personal commu-
nications with his senior advisers. But
that is distinctly different from a blan-
ket order to stonewall Congress and re-
fuse to comply with any subpoenas at
all. To begin with, most officers in the
executive branch are not in close per-
sonal contact with the president, and
executive privilege would not apply to
them. As for those to whom it might
apply, they ought to appear before
Congress and refuse to answer any
questions that he or she (or the presi-
dent) believes violate the privilege. As
the federal district court judge Ketanji
Brown Jackson has recently held, there
is no “absolute immunity” for senior
presidential advisers to refuse to ap-
pear before Congress, notwithstanding
Justice Department memoranda to the
contrary.
The upshot is that while it is not ob-
struction of Congress for Trump to
seek judicial review of particular sub-
poenas—or even to assert “absolute
immunity” for senior aides—it is ob-
struction for him to refuse all of the
House’s efforts to investigate him for
the purpose of impeachment. One of
the articles of impeachment against
Nixon was for obstruction of Congress.
Nixon engaged in far less obstruction
than Trump. Despite his refusal to
hand over the White House tapes until
compelled to do so by the courts, Nixon
permitted some executive branch offi-
cials to testify and provided some doc-
uments requested by Congress.4.
If the Senate does not remove Trump,
what will that mean for his presidency,
and for impeachment itself? Although
the word “acquittal” is often used to
describe the failure to reach the two-
t h i rd s vote requ i red to remove t he pres -
ident, that is not the same as a criminal
acquittal, which requires jury unanim-
ity. Nonremoval does not amount to
vindication.
This distinction matters because it
shows that impeachment by the House
is itself a powerful constitutional act.
An impeached president must face
trial in the Senate. (And a Senate that
refused to hold such a trial would be in
violation of the Constitution.) Symboli-
cally, impeachment by the House is the
strongest sanction available against a
president short of removal from office.
It is much stronger than a congressional
censure, both because it is apt to come
with real-world consequences and be-
cause, unlike censure, it is specifically
mentioned in the Constitution.
The meaning of impeachment on
its own, even without removal, is un-
derscored by the fact that removal is
so difficult. By making it possible to
impeach with a bare majority of the
House while requiring two thirds of
the Senate to remove, the framers’
design anticipated the likelihood that
impeachments would not result in
removal. That structure only makes
sense if they considered impeachment
itself to be a sanction. Otherwise they
could have required a two-thirds vote
in the House to impeach, which would
have made it much less likely.Historical experience bears out the
consequences of this asymmetric struc-
ture. Johnson and Clinton both sur-
vived their Senate trials. But both paid a
price for the impeachment itself. John-
son, who missed removal by one vote,
tried and failed to get the Democratic
nomination in 1868, and his historical
legacy, already poor, has been further
impoverished by his impeachment.
Clinton was in his second term, and
so reelection was not an issue for him.
His impeachment, however, harmed Al
Gore, his vice president, who chose to
backpedal from his association with
Clinton and (narrowly) lost the 2000
election. Clinton’s impeachment prob-
ably also harmed the 2016 candidacy
of Hillary Clinton: for example, Trump
attempted to deflect attention from al-
legations of sexual assault against him
by inviting some of Bill Clinton’s accus-
ers to a presidential debate.
Trump’s supporters have made much
of the partisan nature of the current im-
peachment process. They and Trump
can be expected to argue that a party-
line vote in the House should vitiate the
stigma of impeachment. Trump, who
has shown himself impervious to much
criticism that would have affected previ-
ous presidents, may find himself buoyed
by nonremoval. It is even possible that a
Senate vote in his favor might help his
reelection prospects. If that happens,
and Trump is reelected after having
been impeached, he may see himself as
genuinely above the law, a prospect that
is concerning to say the least.
For the long-term strength of the
Constitution and the rule of law, much
turns on the public perception of why
the Senate might choose not to remove
Trump. If the public sees nonremoval
as purely partisan, it would signal that
the Constitution is open to abuse when
a party is more loyal to a president than
to the country. But it would not neces-
sarily change the public’s belief that
impeachment is a serious sanction for
dangerously wrongful conduct.
If the public believes the evidence
against Trump is insufficient, that
would suggest a breakdown in our col-
lective ability to assess facts and draw
inferences. It would not, however,
meaningfully erode constitutional
norms, because it would imply that the
public recognizes the gravity of high
crimes and misdemeanors in general.
From the standpoint of the Constitu-
tion, this would actually be the least
worst perceived basis for nonremoval.
The most dangerous outcome for con-
stitutional governance would be if the
public accepted the facts about Trump’s
conduct but concluded that it was not
impeachable because it was perfectly
fine—business as usual. If the American
people were to “get over it,” as Trump’s
acting chief of staff Mick Mulvaney
advised in a press conference, it would
mean they had accepted the idea that a
president may constitutionally abuse his
office for personal political gain.
At the Virginia ratifying convention,
James Madison explained that no gov-
ernment could “secure liberty or happi-
ness without any virtue in the people.”^6
The passing of the political virtue nec-
essary for constitutional democracy is
terrible to contemplate. But it is not un-
precedented in world history. Q
—December 19, 2019WEEKEND
Some people despise doing laundry, but I don’t
mind it, and I think we can all agree it feels so good
to engage in something you don’t
mind. To have a neutral feeling. My only two childhood
memories are hearing the song EVERYBODY’S WORKING
FOR THE WEEKEND and seeing the bumper
sticker THE LABOR MOVEMENT: THE FOLKS WHO
BROUGHT YOU THE WEEKEND. I gathered
the weekend is the portion of life that is understood
to matter. Now that I’m grown, I know that just means
sex. THE LABOR MOVEMENT: THE FOLKS WHO
BROUGHT YOU SEX. Though of course
there are other things to be enjoyed. I DON’T WANT
TO BE PITIED said my neighbor, after explaining to me
she hated her children—not children in general,
just her own. Her idea of a weekend
is not being pitied. Is someone else having about her
a neutral feeling. Our neighborhood is overrun
with garbage, and the summer makes it reek,
which ruins the otherwise neutral
feeling I have regarding the sun and the sense
of it on me. It’s not that I think of myself as my own
child—it’s more that I think of my body
as an animal that, having been bred with abandon, requires
a human steward, like those dogs that can’t
give birth without assistance, without someone
snapping on gloves and boiling the kettle
and cleaning the cotton sheets like I’m doing now,
clipping them up to dry in the sun. It feels so good.—Natalie Shapero(^5) I addressed this subject in some detail
in “Crooked Trump?,” The New York
Review, May 24, 2018.
(^6) The Documentary History of the Rati-
fication of the Constitution, June 20,
178 8, 10 :1417.