Keith E. Whittington | Vox

Trump’s rhetoric is offensive, but is it an impeachable offense?

2017-08-04T11:40:04-04:00

Not the first president to say offensive things | Photo by Bill Pugliano/Getty Images

President Donald Trump has a rhetorical style seemingly without precedent in the White House. It seemed to serve him well during the presidential campaign, where he could ride free media attention to discomfort and undermine his challengers. It has served him much less well since his inauguration.

The early months of the Trump presidency are remarkable in part because they have been characterized by very little policy action but near-constant scandal. Many of the distractions and missteps of the Trump presidency can be traced directly to the president’s own rhetorical efforts, whether in speeches, media interviews, or early morning tweets.

Both supporters and critics have urged Trump to act more presidential. He has responded by insisting that his “use of social media is not Presidential — It’s MODERN DAY PRESIDENTIAL.” He shows no sign of wanting to pivot to a new personal style now that he has won high office. He is confident in and most comfortable with the rhetorical approach that he has cultivated over a long career as a brand manager and reality TV celebrity.

Some have suggested that he has learned from his friend Vince McMahon, the impresario of professional wrestling, and recognizes that you can win an audience by playing the heel and flamboyantly breaking the rules. The president seems disinclined, and perhaps unable, to shed his old persona and rise to the stature of the office that he now occupies.

The “pre-modern” Trump: Andrew Johnson

If Trump himself is unique in the annals of American political history, the widespread concern with the rhetorical style of the occupant of the Oval Office is not. In particular, Andrew Johnson, who rose to the presidency upon Abraham Lincoln’s assassination, outraged his putative Republican allies with his oratorical antics. A combative disciple of Andrew Jackson, Johnson often seemed most comfortable mixing it up with the crowd with extemporaneous remarks at political rallies.

The president shocked the capital when he emerged from the White House to greet serenaders on Washington’s Birthday and quickly moved past giving the traditional thanks, launching into a fiery speech on the failures of the Reconstruction Congress. Egged on by his onlookers, Johnson wound up calling out congressional Republican leaders by name and denouncing them as guilty as the secessionists in their willingness to “pervert or destroy” the constitutional principles of the American government.

A few months later, the president embarked on his “Swing Around the Circle,” where he tried to rally the voters to replace the Radical Republicans in Congress with legislators more to his liking. Embarrassing figures such as Gen. Ulysses S. Grant who initially accompanied the president onstage for what were expected to be ceremonial events, Johnson prompted laughter from the crowds with his attacks on the congressional Republicans and his promise to “kick them out just as fast I can.” His critics gossiped that the president must have been drunk, but really he was just playing to his populist roots.

Things did not work out so well for Johnson. The Republicans gained seats in the 1866 midterm election despite the president’s efforts, and the Democrats had no interest in adopting him as their own. The veto-proof Republican majorities passed Reconstruction measures over the president’s objections, tied the president’s hands in how he could use the military and executive officials, and eventually impeached him.

The powerful norms of political rhetoric

While there are multiple reasons for Johnson’s impeachment, one infamous feature of the Johnson episode is Article X of the House resolution of impeachment. There, the House charged Johnson with acting in a manner “unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches” by attempting “to bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States” by exciting “the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted.”

In support of this article of impeachment, the House introduced into evidence his stump speeches from the Swing Around the Circle. The vote in the Senate fell one shy of what was needed to convict and remove Johnson, but the senators did not take a formal vote on Article X.

Presidential scholar Jeffrey Tulis deserves credit for putting Article X in perspective in his book on The Rhetorical Presidency. Appreciating the logic of Article X requires a recognition of the informal features of the American constitutional system such as its conventions, norms, or constructions. Presidential rhetoric is relevant to these informal features because, as Tulis details, the classically trained founders were deeply concerned with the problem of demagoguery in popular government, and the set of norms they built up around the presidency emphasized the importance of disciplined ceremonial speeches that contributed to American civic education.

Johnson’s rhetorical style was a shocking departure from those norms. Johnson took to the hustings not to uplift and educate citizens, but to rally partisans with fiery rhetoric. Ben Butler, one of the leaders of the impeachment effort in the House, later credited Johnson’s speaking tour as precipitating the president’s impeachment because it “disgusted everybody.”

From the perspective of 19th-century presidential norms, Johnson’s behavior was obviously incompatible with the dignity of the office, and ultimately with the safety of the republic. Johnson did not appreciate the difference between how an up-and-coming Tennessee politician should carry himself in public and how the president of the United States should present himself to the people. His contemporaries, at least among the political elite, tended to agree with Butler’s assessments, and for decades after the Johnson impeachment, presidents strove to conduct themselves in a manner closer to George Washington’s example than to Johnson’s.

Trump’s rhetoric and populist norm-breaking

President Trump pushes against the boundaries of modern norms of presidential rhetoric just as much as President Johnson did. Trump has carried the boundary-pushing style of his campaign into the White House. Just as Johnson converted ceremonial events into partisan events and shamelessly used the props of the presidency (such as the appearance of Gen. Grant) to advance his personal cause, Trump has done the same.

Just in the past few days, President Trump has violated norms of presidential behavior by urging military personnel to “call those senators” to support his legislative agenda, by criticizing his predecessor to an assembly of Boy Scouts, by exhorting an audience of local police to get rough with suspects, and by luridly denouncing to an Ohio audience the “criminal aliens” and “animals” who would “slice and dice” American teenage girls unless his administration were adequately empowered to take action to protect the nation. While Ohio Gov. John Kasich might lecture that such “coarseness is not acceptable,” some voters at least think he “has set the exact tone I was looking for.”

What happens next?

The question for the political system moving forward is whether Trump’s rhetorical posture will be an exception or a bellwether. Will we “normalize” Trump by following his example and shifting our informal constitutional conventions of how we expect a president to conduct himself in office? Or will we discipline Trump by rejecting his behavior as unseemly and dangerous?

For the congressional Republicans of the Reconstruction Era, impeachment was one tool for rejecting Johnson’s attempted effort to remake the informal norms surrounding the presidency. As Sen. Charles Sumner pointed out to his colleagues during the impeachment trial, the president’s behavior “is without example,” and Congress had a “duty [to] make a precedent” to “counteract” its effect. The impeachment alone, like a resolution of censure, was ample demonstration that everybody was “disgusted” by the president, and future presidential aspirants made clear that they would not follow his example. They would instead seek to restore dignity to the office.

Impeachment is a blunt instrument for restoring dignity to the presidency, but current political leaders must likewise decide whether to isolate or emulate the president. Similarly, voters will no doubt have their own chance to affect the reconstruction of our political norms when they decide which candidates to support for office. Will it be disqualifying if a candidate makes fun of the disability of a reporter or the ethnicity of a judge, or will such rhetorical strategies be rewarded on the campaign trail?

Constitutional norms and populist pressures

Constitutional norms are most often constructed and maintained by political elites, not average voters. Will today’s elites ostracize or embrace politicians who follow Trump’s example? Will they lend political resources to and bestow honors and responsibilities on such politicians, or will they cut them off and leave them to their own devices? Will political leaders and civic organizations follow Gen. Grant’s example and refuse to dignify Trump’s events by appearing alongside him or providing him a platform for his rhetorical excesses? Will presidential aides stand by and even justify the president’s words, or will they distance themselves from it and even resign?

After Trump’s most recent rhetorical volley, political and social leaders have begun to push back. Police officials and the acting head of the Drug Enforcement Agency have publicly rebuked the president. The Boy Scouts issued an apology for Trump’s behavior at their Jamboree. Republican senators have begun to openly criticize the president’s rhetoric.

Four or more years of Trump’s tweets and speeches might well tend to inure our political culture to what might once have seemed beyond the pale of presidential rhetoric. It will likely require conscious and concerted effort to push back against the president’s norm-busting behavior and to insist that he be treated as the exception, not the rule.

Will the 25th Amendment save us? Lessons from the nation’s first impeachment trial.

2017-05-18T17:50:53-04:00

Judge John Pickering, first person impeached and removed by Congress.

Concerns about the workings of the Trump White House have led some to turn to one of the most obscure provisions of the US Constitution in search of a path forward. This is a bad idea. In particular, Section 4 of the 25th Amendment has been getting recognized more and more, I notice.

Added during the presidency of Lyndon Johnson, the amendment lays out procedures for succession of the office of the president. Section 4 specifically contemplates the possibility of involuntary succession of the office, or “contested removal” of the president. It empowers the vice president and a majority of the Cabinet to declare that the president “is unable to discharge the powers and duties of his office” and transfer those powers to the vice president. If the president objects, the office returns to the president unless Congress affirms that the president is unable to assume those duties by a two-thirds vote of both chambers.

This is a high hurdle, as it should be. The procedure for involuntary succession is harder to invoke than the impeachment power, since it requires the agreement of the vice president and members of the Cabinet (who have no say in the impeachment process) and a two-thirds vote in the House (whereas impeachment only requires a simple majority in the House). On the other hand, the Constitution gives little hint of when a contested removal would be warranted.

While the standard for impeachable offenses in the Constitution is not very specific, the standard for involuntary succession is even less specific. The Constitution provides no guidance on what it would mean for the president to be unable to discharge the powers and duties of the office, and it does not require any kind of trial in Congress to fairly evaluate whether the declaration of unfitness is true.

Some have touted the 25th Amendment option as the proper vehicle for removing Donald Trump from office on the grounds that he is generally unfit for the presidency. This is very similar to the argument that some activists made to the Electoral College when encouraging pledged presidential electors to refuse to cast their ballots for Trump. I thought that lobbying effort was a dangerous mistake. It does not work much better in the context of the 25th Amendment.

Despite ethical rules against doing so, mental health professionals have asserted that Trump is “too mentally ill” to discharge the powers and duties of the office. It has become commonplace to declare that Trump is “actually crazy.” Ross Douthat has argued in the New York Times that Trump is like a child and a “child cannot be president.” This would avoid forcing members of the Senate to declare that Trump is guilty of committing high crimes and misdemeanors, when many argue that the president is not bad-intentioned or ruthlessly abusive but simply careless and incompetent to shoulder the burden of exercising the office of the presidency.

The concern about the inappropriateness of the impeachment power under such circumstances is a real one, and it is not the first time that we have struggled with that problem. In the very first Senate trial of an impeached federal officer, the senators worried that they were being asked to convict someone of a crime when it was unclear that the officer was capable of committing a crime. Federal Judge John Pickering was a New Hampshire Federalist, whose odd behavior on the bench came to the attention of the new Jeffersonian majority after their smashing electoral victory of 1800.

The Jeffersonians were already upset with the federal courts, which they viewed (with good reason) as deeply partisan and actively hostile to the newly elected Democratic Republicans. They were primed to fight back, and they did. Shortly after taking office, they repealed the Judiciary Act of 1801, throwing a number of Federalist judges who had received “midnight appointments” off the bench. The Jefferson administration refused to deliver the commission to the office of justice of the peace to William Marbury, who had received his appointment before Jefferson’s inauguration. Ultimately, the Jeffersonians brought impeachment charges against Associate Justice Samuel Chase, who had been a particular thorn in the side of the Democratic Republicans before the election. Before doing so, however, they impeached Judge Pickering.

In hindsight, some saw the Pickering impeachment as a test run for the Chase impeachment and perhaps a wholesale cleansing of the federal courts, but Pickering posed a somewhat unique problem. Although the record is not entirely clear, there was general agreement that Judge Pickering had become mentally unfit to perform his duties as a federal judge. Perhaps he was descending into senility and madness. Perhaps he was just suffering the effects of alcoholism. Whatever was wrong, it could no longer be kept hidden, and it was affecting his work.

Assessing the character and competence of candidates is the central thing that voters do in a representative democracy

Pickering had a distinguished career and had served for several years on the federal bench without incident, but as the new century dawned his behavior was becoming increasingly erratic. His family depended on his judicial salary, however, and the local Federalists did not want to create a vacancy for President Jefferson to fill and so refused to encourage Pickering’s retirement. Other judges took over most of his duties, but the repeal of the Judiciary Act removed that option.

Before long, Pickering was delivering drunken, intemperate political rants from the bench, and soon the administration was hearing complaints from constituents in the judge’s district. The Democratic Republicans were reluctant to put Pickering’s mental condition in the record, and so tried to focus their attention on his actions. The Federalists were implacably opposed to any effort to remove Pickering from the bench.

Jefferson posited that Pickering’s “intoxication” was a sufficient cause to sustain an impeachment, but at least one Jeffersonian senator worried that “I know of no law that makes derangement criminal.” The judge’s son sent a letter to the Senate pleading that his father was “insane, his mind wholly deranged, and altogether incapable of transacting any kind of business which requires the exercise of judgment, or the faculties of reason.” He concluded that the judge therefore was “incapable of corruption of judgment, no subject of impeachment, or amenable to any tribunal for his actions.”

According to Pickering’s friends, there was no constitutional mechanism to remove a mentally unfit judge from office. The congressional majority did not think that was a viable possibility if the constitutional system were to be functional. The Jeffersonians eventually swallowed their doubts and convinced themselves to focus on Pickering’s evident drunkenness and inappropriate behavior and ignore his alleged insanity. Pickering was removed from office, but no one felt very good about it.

For those who believe there is something desperately wrong with the current president, they face a somewhat similar dilemma as the senators confronted by the spectacle of a demented judge. The 25th Amendment offers a tempting way to escape that conundrum, but history has tended to endorse the approach taken by the Jeffersonians in the Pickering case.

There are evident risks to opening the door to using the 25th Amendment to remove presidents on the basis of general concerns about unfitness or mental instability. One does not have to read Michel Foucault to recognize that there is a long history of using the discourse of mental illness to discipline unapproved and unconventional social behavior. It is one thing for the Cabinet to declare that a president in a coma is unable to perform the duties of his office; it is quite another for it to declare that the president is too ill-tempered, absent-minded, morose, anxious, narcissistic, undisciplined, or just plain stupid to perform those duties.

Assessing the character and competence of candidates is the central thing that voters do in a representative democracy. They undoubtedly make mistakes in making those assessments, but in a popular form of government they are entitled to make those mistakes. Empowering a set of political elites to overturn the judgment of the people on the question of the general fitness of an elected official takes a large step toward autocracy and is all too reminiscent of the privilege claimed by generals in polities subject to repeated coups.

If there is good cause to remove a sitting president who is capable of objecting to his removal, then the only proper course of action is to build the case that the president has committed impeachable offenses

The 25th Amendment option only has any real critical purchase when the alleged evidence of the president’s disability consists of a set of discrete and identifiable actions that amount to not just embarrassments, misjudgments, or policy errors but abuses and offenses that are inconsistent with the requirements of the office. In other words, the 25th Amendment option only becomes credible when the president has committed impeachable offenses. If there is good cause to remove a sitting president who is capable of objecting to his removal, then the only proper course of action is to build the case that the president has committed impeachable offenses and removal is essential for the health of the republic.

The precedent set by the Pickering impeachment is that the House and Senate should not focus on the motivations and causes of bad behavior by federal officers nor concern themselves with the state of mind or mens rea of the officer. An impeachment is not a criminal trial, and Congress is not concerned with punishing the guilty. An impeachment turns on an assessment of whether an officer has committed offenses that are fundamentally inconsistent with the expectations of the office and pose an ongoing threat to the office and the republic.

Impeachment procedures require that the members of Congress build that case in public and advance their claims in the face of a vigorous defense and in a fair hearing, and they require senators to enter a verdict under oath to do “impartial justice according to the Constitution and the laws.” If a president is to be removed from office because of his actions, then impeachment is the constitutionally prescribed.

Keith E. Whittington is the William Nelson Cromwell professor of politics at Princeton University and currently director of graduate studies in the department of politics. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in US History.