On Sept. 5, the New York Times published an anonymous op-ed by a “senior official in the Trump administration,” calling into question the president’s fitness for office. The author, call him or her Anonymous, does not mention impeachment, but does speak about another constitutional process: the 25th Amendment, which provides for the removal of an incapacitated president, and which Anonymous dismisses as an overly “complex” process that might precipitate "constitutional crisis."
Anonymous instead touts a very different and entirely ad hoc remedy for the dangers of the Trump presidency: the acts of “unsung heroes” at a senior administration level who “frustrate” the parts of the president’s agenda they dislike and blunt as best they can his worst “inclinations.”
But the scrutiny of a deeply troubled and troubling presidency requires reliance on the standards of judgment, accountability and transparency of a constitutionally prescribed process: impeachment. A formal congressional inquiry into the grounds for impeachment of the president is the constitutionally appropriate response to a president described by Anonymous as possessing “anti-democratic” impulses, not the conduct of covert operations within the West Wing.
The Internal “Resistance” As Response to the Dangers of the Trump Presidency
The op-ed as a justification of a program of internal “resistance” is confused and morally compromised. It grounds its program of internal resistance in an appeal to the national interest, but then seems more narrowly concerned with blunting the presence of deviations from standard conservative Republicanism. These are the money paragraphs, in which the author associates Trump’s amorality with errant political beliefs:
The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making.
Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people. At best, he has invoked these ideals in scripted settings. At worst, he has attacked them outright.
The argument links amorality to the absence of “first principles”—but in the immediately following paragraph, the author identifies this deficiency as Trump’s lack of true “affinity for ideals long espoused by conservatives.” So when Anonymous cites the need to keep the president from making “bad decisions,” it is not clear which ones he or she has in mind. The reader is left with the impression that Anonymous has lost patience with a president’s leadership style largely to the extent that his “half-baked, ill-informed and occasionally reckless” judgments don’t match the internal resistors’ policy preferences. If not, why would the author link decisions reached in this way with the ones that need to be “walked back”?
It would be useful to know of any cases where the president’s decision has been “half-baked, ill-informed” and even “reckless,” but Anonymous and his allies liked the outcome and declined to “walk it back.” The standard for intervention here seems to be largely political, rather than one molded primarily by solicitude for informed, morally grounded and competent presidential leadership.
Also missing is core accountability for the actions taken to effectuate this resistance. The op-ed appeared around the same time that reports surfaced from Bob Woodward’s new book that some officials have snatched from documents from Trump’s desk that they did not want him to sign. Anonymous does not speak to this particular mode of dealing with the president, but it certainly seems possible that this technique might be one among others used in this initiative to "frustrate" the president's agenda. After all, the author speaks about the "great lengths" to which aides have gone to "keep bad decisions contained to the West Wing…" Blocking the president from information, even whisking away materials aides don't wish him to see, certainly seem to be the sort of steps fairly characterized as going to "great lengths" to achieve this goal. One obvious question is how far these resistors are willing to go. Would they alter, not just hide, documents? Lie about facts? Misrepresent recommendations from component branches of the government?
The “great lengths” to which the “unsung heroes” have gone will remain unknown, because they don’t reveal their methods—or themselves. They are free to disclose what they do on their terms, for their own purposes. We cannot know with what authority they speak or what level of seniority they occupy. Other than what Anonymous has produced for public consumption, we have no basis on which to judge whether it is the president's ideological apostasy or his amorality that primarily motivates his and his co-resistors. And Anonymous’s op-ed is far from clear on that question.
Americans could be grateful, of course, for strong opposition within the West Wing to the president’s most dangerous and disreputable impulses and his inclination to adopt poorly informed, reckless policies. The problem is that it’s not clear whether this is the nature of the opposition that Anonymous and his or her confederates are mounting, or whether Anonymous opposes only policies that do not align with his or her preference for a Republican governing program. But it does seem clear that this internal resistance is not a constitutionally sanctioned process—or even, considering the choice to remove materials from the Oval Office without the president’s consent, an ethical or legal one.
The Impeachment Process
Earlier this September, Yale University Press produced a new edition of Charles Black’s “Impeachment: A Handbook,” with substantial new scholarship added by Philip Bobbitt. It is Bobbitt's mission to reclaim for impeachment the status of a legal process, in which constitutional interpretation is guided by careful and rigorously argued attention to text, history, structure, doctrine, prudence and what he calls "ethos"—a concern with the "primacy of the rule of law." His presentation is powerful and convincing. It goes a long way toward rescuing the impeachment process from its marginalization as an exercise in unprincipled assertion of raw political power by whichever party happens to have the votes. Impeachment, Bobbitt insists, is "a matter of decision according to law."
There is undeniably a risk that an impeachment process can get out of hand, overtaken by low motive. The check against the corruption of this process is the requirement that the proponents for a president’s ouster make a public case on the law and the evidence—and those in opposition are under the same obligation. Public opinion is engaged, with inevitable effects on how members calculate the costs and benefits of their final decision on impeachment and, if it comes to that, conviction.
This public accounting doomed the Republican Party’s crusade against Bill Clinton. The House did impeach, and while the Senate acquitted, all Republicans but one voted for conviction, far from enough to meet the two-thirds requirement for ouster. But, in fact, the Senate Republicans were eager to have it all over with. They agreed to a truncated process, with only three witnesses called, and they voted to convict with the knowledge that the president would retain his office and the fall-out would be limited. The excesses of the Starr investigation, the case against impeaching a president for private personal failures and the direction of public opinion had a clear effect on the course and duration of proceedings in the Senate, if not the House.
Because the impeachment process is a constitutional legal process, there are arguments that proponents would not make, just as there are defenses that the president’s supporters would not offer. In the case of Donald Trump, a Republican weighing a vote for or against impeachment would not refer specifically to the president’s fidelity to conservative ideological commitments. So crass a political rationale for overlooking high crimes and misdemeanors would never sell. The question before both the House and the public will be Trump’s fitness for office, judged by standards that Bobbitt identifies as the product of constitutional thought, experience and reasoning.
The crucial checks against political mischief in impeachment proceedings are the requirements for constitutional argument and transparency of process. Not so in the world of Anonymous, where politics dominates the entire enterprise, the modes of operation are hidden from view and claims are selectively leaked—or anonymously published—without supplying the public with the information needed to test them.
Impeachment and the Demagogic Presidency
In the case of Donald Trump, the questions of leadership style that would be central in an impeachment process are ones Anonymous says nothing about. The op-ed makes no mention, for example, of the president's flouting of norms and legal standards insulating the Department of Justice from political interference. The president seems prepared to refuse his cooperation in a legitimate ongoing criminal investigation, but there is no word about that from Anonymous. The writer says nothing about the president’s threats that the Justice Department might bring cases against his political adversaries. Anonymous speaks in general terms about Trump’s anti-democratic behavior, and stops there. This critique is quickly lost in the complaints about the president’s failures to hew consistently and in principled fashion to “ideals long espoused by conservatives.”
Almost two years into the Trump presidency, a pattern of behavior has emerged that no reasonable observer would conclude might change. There is no reason to believe after all this time that the president is acting only on fleeting impulse when he complains bitterly about his lack of control over the Department of Justice; pushes his senior staff to shut down an investigation affecting him and his family; derides his attorney general for complying with recusal rules and goads him publicly to initiate prosecutions of political adversaries; insists on personal loyalty from senior law enforcement; and, proclaiming the absolute character of his pardon power, exercises that authority for political purposes, announcing his intention to do so at political rallies. This is a course of conduct to which Trump is committed. It is a—if not the— defining feature of this presidency.
It is a demagogic presidency, exhibiting all of these behaviors associated with the classic demagogue that the founders were so concerned about: the relentless pursuit of self-interest whose methods include a wanton disregard for the truth and contempt for legal institutions, processes and constraints. Does this leadership style present a case for impeachment?
The most rigorously argued, historically based standards strongly indicate that it does. For example, Bobbitt defines an impeachable offense as “a crime against the perpetuation of the order and ethos of the State.” Cass Sunstein would frame it in similar terms: an “egregious abuse of official authority.” The case for impeachment may well expand with further developments in Special Counsel Robert Mueller’s ongoing investigation in the Russia matters. But as Bobbitt notes, the issue before a Congress considering impeachment is whether a president has committed a “wanton constitutional dereliction captured by the high Crimes and Misdemeanors, not whether [his actions] conform to the prohibitions contained in a criminal statute.” (Alan Dershowitz would disagree, claiming that a punishable criminal offense must first be established—but he stands mostly alone, outside the mainstream of constitutional scholarship and thought.)
A question certain to arise in an impeachment inquiry is the significance to be attached to any difference between the ways this president speaks and presents, and what he actually does. Bobbitt argues for the importance of distinguishing between the president's language and his actions, with impeachment properly directed, for the most part, only to the latter. He offers the example of a president who incites violence. Whether incendiary speech is impeachable might depend on “the practical effects of such incitement and whether they put the country at risk of civil conflict.” A president might be removed “after a historic tragedy,” i.e. after the words had proven to have the effect of contributing directly to violent behavior.
But the facts—including context and circumstance—give life and direction to impeachment inquiries, and Bobbitt and other commentators concur that there are circumstances in which words do matter. For example, following Black, Bobbitt and Cass Sunstein agree that a president who announces that he will pardon any police officer who kills in the line of duty, regardless of circumstance, has committed an impeachable offense. The offense occurs with the announcement: Congress is not required to wait for the concrete harm that is certain to follow.
A president’s words may lead to impeachment by another route: material deception of the public on matters related to his or her official duties. Sunstein puts it straightforwardly: the category of impeachable offenses includes “lying to the Congress and the American people.” There is, of course, precedent for this form of constitutional dereliction: The House of Representatives voted an article of impeachment directed at Richard Nixon's lies to the American public about his early responses to the Watergate crisis. Bobbitt acknowledges that what the Congress has done in past impeachments constitutes precedent for future law-based impeachment arguments.
An impeachment inquiry governed by consideration of the law and precedent, and guided by serious argument, is what the Constitution calls for in addressing a demagogic presidency. The emphasis is here is on "inquiry." That's how the process begins in the first instance, with the House examining the standards that would apply and then amassing the evidence that supports, or doesn’t, the application of the standard to the particular case.
This is how the House of Representatives proceeded in 1974 in the impeachment inquiry opened on Richard Nixon. It is the precedent that a future House would be wise to follow in the case of Donald Trump.
But nowhere in the Constitution’s provisions are there references to the protections afforded by a self-appointed cabal within the White House, its membership unknown and its motives unclear, acting to keep the president under control. Anonymous fails to see that, unlike resort to the impeachment process, internal “resistance” by “unsung heroes” is a constitutionally irresponsible choice. This peculiar undercover-operation approach can only fuel or sustain, rather than contain or resolve, crises arising from a president’s ”anti-democratic” impulses and actions. It is long past time to overcome undue anxiety about initiation of an impeachment inquiry. It is also not too early for Americans to worry about a secret society putting itself in charge of keeping the demagogue in check while maximizing the political benefits of keeping him in place.