Presidential impeachments are about politics, not law – Updated by Julia Azari May 15, 2017, 11:20am EDT


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I’m starting to feel left out because I haven’t published a Saturday Night Massacre/Nixon/impeachment take yet. (Seth Masket and I did write this piece on constitutional crisis…) Heavy hitters in the constitutional law world are clearly thinking about the possibility that last week’s events will mark the beginning of the end of the Trump presidency. But despite the fact that the i-word has been trotted out, there’s been less said about the two presidents in American history who actually went through the impeachment process, Andrew Johnson and Bill Clinton.

This absence isn’t that surprising. The Clinton and Johnson impeachments are widely recognized as bogus — trivial acts of political vengeance. Challenging these distinctions requires heavy normative judgments. I won’t shy away from these, but that’s not the purpose of this post. Instead, this would be a good time to ask why this constitutional mechanism has been employed so sparingly and under such controversial conditions — and what this implies for Trump.

Most of us learn about Johnson’s impeachment as a case of partisan politics run amok. Most of the 11 articles of impeachment dealt with the violation of the Tenure of Office Act, which was probably unconstitutional anyway. An additional article of impeachment charged that Johnson had shown disrespect to Congress by engaging in “utterances, declarations, threats and harangues” that demeaned the office and failed to respect the separation between the branches — that is, giving speeches about his conflicts with Congress. It’s not exactly a charge that resonates with modern audiences, although it does make one wonder what the congressional Republicans who impeached Johnson would make of Donald Trump’s tweets. We’ll never know, but just for the record, I would watch that time-travel sci-fi movie.

Johnson came only one vote away from removal in the Senate. None of the Senate Democrats — Johnson’s erstwhile party before joining the Union ticket in 1864 — voted to remove him, but a few Republicans defected. On a biographical note of my own, I remember learning about the deciding vote — Edmund Ross of Kansas — as a sort of tale in political courage. Ross knew the charges weren’t serious and ultimately sacrificed his own career to vote the right way. In her short book about Johnson, historian Annette Gordon-Reed offers a different view:

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