If there were any doubt, the president’s speech to the Coast Guard Academy made it perfectly clear: “[Y]ou have to put your head down and fight, fight, fight. Never, ever give up.” But this declaration of total war runs against the grain of American history. We have relied on presidents to stop fighting well before they run out of ammunition – this is the only way we have managed to keep constitutional crises from escalating out of control.
Give Richard Nixon his due. When he left office in August, 1974, articles of impeachment had only just been approved by the House Judiciary Committee; with the November elections looming, it could have taken another year before the Senate would have reached a final judgment. Since the Democrats scored a decisive election victory in November, they would have probably managed to oust Nixon from office – since only six Republicans were required to defect to gain the requisite two-thirds majority. Nevertheless, Nixon’s resignation saved the country from another year of escalating confrontation.
The future looks grimmer this time around. Special Counsel Robert Mueller’s investigation will predictably run into next year. Given Trump’s condemnation of his appointment as a “witch-hunt,” White House staffers will respond with legalistic quibbles when confronting Mueller’s demands for tapes and documents, requiring many rounds of adversarial give-and-take before the Special Counsel can get his hands on all the relevant tapes and documents. By this point, mid-term elections will loom on the horizon – and it is safe to predict that Republicans will remain very strong, especially in the Senate. So even if the House manages to approve a bill of impeachment, the Senate trial in the spring of 2018 may well result in an acquittal – allowing a discredited Trump to continue to the bitter end of his term.
Nixon’s resignation saved the country from another year of escalating confrontation.
Whatever the final decision, the escalating struggle between Democrats and Republicans, Congress and the president, will make it politically impossible to confront the country’s very real problems, and further alienate ordinary Americans from the goings-on in Washington D.C.
Worse yet, it will undermine confidence in the Constitution itself. The last time the Framers laid down the law governing the election and removal of presidents was 1804, when the Twelfth Amendment made a few changes in the original framework of 1787. The draftsmen were living in a very different political universe – where Americans believed that candidates should refrain from personally engaging in the dirty business of campaigning for office, leaving it to statesmen in the Electoral College to judge their merits in a public spirited fashion. Once the winner made it to the White House, the Framers expected Congress to exercise a similarly independent judgment in determining whether a president should be impeached and removed from office.
It was only a matter of time before this eighteenth century vision collided with modern democratic realities. After the Civil War, the impeachment of Andrew Johnson could have readily provoked renewed military violence – except for statesmanlike interventions from both sides. Similarly, the presidential election crisis of 1876 – in which the Democrat Tilden won a clear majority of the popular vote – was only resolved when both political parties engaged in an extra-constitutional compromise which allowed the Republican Hayes to gain the presidency in exchange for the removal of Union troops in the South. (I describe these maneuvers in We the People: Transformations.)
This collaborative tradition continued into the twentieth century. Most recently, the Supreme Court’s unprecedented intervention in the 2000 election could have only been a passing moment in an escalating crisis if Al Gore had “never, ever, give[n] up.” Since the draftsmen of the founding era had not anticipated modern realities, they had stipulated that the sitting vice president of the old administration should preside over the joint Congressional session determining the electoral college winner of the next election. This meant that it was within Al Gore’s power to call a halt when the clerk announced the votes submitted by Jeb Bush’s government in Florida, and propose that Congress designate an independent commission to investigate the matter further.
It was only a matter of time before this eighteenth century vision collided with modern democratic realities.
Although there were precedents for similar actions stretching back to the times of Thomas Jefferson, Gore rightly decided that the time had come to bring the crisis to an end – and allow the Bush administration to confront the unknown challenges of the future without constant reminders of the election fiasco. Indeed, Gore left the country and only returned to give Bush his support after September 11.
We confront a very different prospect this time. With Trump resisting to the bitter end, he will stop at nothing to stay in office. The most obvious scenario involves a terrorist attack. Trump will predictably use the resulting panic as an excuse to order Mr. Mueller stop his “witch-hunt.” If he refuses, he will fire the Special Prosecutor for giving aid and comfort to the terrorists – catapulting the country into the worst constitutional crisis since the end of Reconstruction.
Bruce Ackerman is professor of law and political science at Yale, and served as lead witness for President Clinton at the House Impeachment Hearings.
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