Impeachment vs. Censure: Constitutional Law, Politics, and the Art of the Possible

Brian C. Kalt is Professor of Law & The Harold Norris Faculty Scholar at Michigan State University College of Law

One difficulty in writing about President Trump and impeachment—or about President Trump and anything, really—is that the news cycle has become so short. Events often overtake predictions. We cannot know what Trump and others will do and say between now and the end of the Senate trial. As such, we cannot know how many senators will vote to convict. But at some point, perhaps well before the trial is over, Democrats may conclude that they have no possibility of garnering the two-thirds majority needed to convict.

In the last two cases (Clinton 1998 and Trump 2020), the prospect of certain acquittal did not stop impeachers from pressing on. The current contours of party polarization have lowered the bar for impeachment at the same time they have raised the bar for removal—we live now in an age of futile impeachment. This has not proven to be a good or useful thing. Rather than follow that path yet again if the votes are not there, Democrats should think seriously about embracing censure as an alternative. For Democrats, a successful censure would be more worthwhile than a failed impeachment.

To understand the potential appeal of censure, it is first worth considering the reality of impeachment, and how we got here.

Gerald Ford famously opined that an impeachable offense is “whatever a majority of the House of Representatives considers [it] to be.” Further, he said, “conviction results from . . . whatever two-thirds of the [Senate] considers to be sufficiently serious to require removal.” To many, this sounded like a lawless standard. Rather than focus on the legal definition of “high crimes and misdemeanors,” Ford seemed to invite a political free-for-all in which anyone could be removed for anything so long as there were enough votes.

The actual experience of the impeachment process has been different, especially for presidents. An inverted version of Ford’s formulation has been the rule: an impeachable offense is ONLY what a majority of the House is willing to say is one, and conviction ONLY results when two-thirds of the Senate supports removal. Impeachment and removal are the art of the possible, and with the sole exception of Richard Nixon (who resigned to avoid certain impeachment and conviction), removal has not been possible.

Getting the two-thirds Senate majority needed for removal—never a simple prospect—has gotten harder in recent decades, as Congress has moved from a two-party system to a polarized two-party system, and on to its current two-reality system. Before, a conviction required a sufficient proportion of the president’s own party to agree that his actions warranted removal. Now, before getting to that point, a sufficient proportion of the president’s own party must agree that events even happened as the president’s accusers claim.

But at the same time that removing presidents got harder, impeaching them got easier. There were only two impeachment episodes among the first 41 presidencies. These were serious attempts: President Johnson was acquitted by just one vote, and President Nixon would have been impeached and convicted. After going 2 for 41, though, we have since gone 3 for 4. Significantly, none of these three recent impeachments had a real chance of forcing the president from office. While a two-thirds Senate majority will typically require substantial support from the president’s own party, a simple House majority does not. House majorities are newly willing to embark upon futile impeachments, using their power to declare things to be impeachable offenses without regard to whether the Senate will declare them removable offenses.

Again, there is no way to be sure at this point that President Trump’s impending impeachment trial will result in an acquittal. Acquittal is probable, though, so it is worth further examining just what a futile impeachment entails.

Legally, an impeachment without a conviction has no effect. Impeachment is simply the House’s accusation; the Senate alone decides whether to acquit or convict. The accusation itself has no formal legal consequences. While the Framers considered suspending impeached officers pending trial, they rejected that option. Impeached presidents thus retain all of their powers until and unless they are convicted. (Recently some have theorized that impeachment curtails the president’s pardon powers, but the standard legal view—with which Congress’s actions have cohered—is that it does not.)

Practically and politically, impeachment might make a difference even without a conviction. When President Johnson was impeached in 1868, he recognized that conviction was a real possibility and he scaled back his efforts to obstruct the Radical Republicans’ Reconstruction agenda. His acquittal—by the slimmest possible margin—left him chastened and weakened.

But when conviction is a more remote possibility, an unsuccessful impeachment might not impose any practical or political damage at all. True, those who pursued the failed impeachment can rally around the idea that even an unsuccessful impeachment represents an indelible blot on the president’s record. And the trial itself provides an important opportunity for the accusers to investigate and publicize the president’s misdeeds. But the trial also provides a forum for the president’s team to promote its counternarratives, and acquittal affirms the political potency of those counternarratives.

Fundamentally, a solid acquittal is a political victory for the president. As impeachment loomed in 1998, President Clinton’s Democrats picked up seats in the House, the first time in 64 years that a president had done so in a midterm election. Clinton’s approval ratings remained high throughout the episode. President Trump’s approval ratings were never very high, but they did not appear to have suffered from his first impeachment. If anything, Trump was emboldened by his acquittal—not just because he suffered no consequences, but because he was assured that congressional Republicans had his back.

Remarkably, even a conviction may not amount to much, particularly if the president on trial has already left office. Once an impeachable president’s term ends, the penalty of removal from office is obviously off the table; disqualification from future office is the only possible formal consequence of a conviction. But legally, it is unclear how significant a consequence disqualification is. The Constitution only bars the disqualified person from “offices of honor, trust, or profit under the United States.” This is a legal term of art that excludes congressional office, and perhaps the presidency as well. In other words, if President Trump is convicted and disqualified, he would be barred from such unlikely posts as federal judge, ambassador, and Cabinet member, but he would still be able to run for Congress—and maybe also run for president. The fact that disqualification might not cover running for president has been underreported, but there seems little doubt that Trump would press this legal argument if he were to be disqualified.

The clearest effects of an ex-president’s conviction, then, would be more practical ones. Becoming the only president ever convicted in an impeachment trial would be a significant blot—much more significant than being on the list of presidents who were impeached and acquitted.

Impeachment also serves an important deterrent function for future presidents. Convicting an ex-president for misdeeds committed toward the end of his term applies this deterrent effect all the way to January 20. This is a particularly important feature for impeachable offenses relating to the election itself.

Perhaps most of all, though, impeachment serves an accountability function: bad acts must have consequences. This seems to be an important motivation for Democrats in President Trump’s case. Even after he has left office, Democrats do not want to have allowed Trump to claim, deceptively but with impunity, that he won the election “by a lot” and had it stolen by fraud. More to the point, Democrats feel the need to respond to the attack on the Capitol—insurrectionist rhetoric is not an appropriate tool to use in an interbranch struggle; impeachment is.

These practical consequences of a conviction are enough to warrant going forward with impeaching an ex-president. But this takes us back to the inverse-Ford formulation. If a president or ex-president is acquitted, then he is not being held accountable. His actions would have been done with impunity. His successors will not be deterred from repeating his impeachable-but-not-convictable actions.

Enter censure.

At the outset, some might argue that censure is unconstitutional. But we can expect (based on the experience of the Clinton impeachment) that those who prefer impeachment will be the ones pressing that argument. They will be prone to reject the idea of censure for the sensible strategic reason that censure offers an escape route to members who are skittish about voting to convict. This is another reason why Democrats will not want to turn to censure until and unless an impeachment conviction looks to be out of reach.

Censure has no formal legal effect (having binding consequences is what would make it unconstitutional, impeachment being an exclusive mechanism). Resolutions in the House and Senate—or from the two together, as a concurrent resolution—can express non-binding opinions about anything, including the sense of the chamber(s) that a president has done terrible things that deserve a rebuke.

President Jackson was censured by the Senate in 1834 for overstepping the constitutional bounds of his powers. While the action had no binding effect, it stuck in Jackson’s craw until three years later when the Senate, now having a healthy Democratic majority, voted to expunge the censure. Three subsequent Congresses passed resolutions reprimanding other presidents (though all used hedged language that avoided the word “censure”).

Because it has no legal effect, censure is a weak substitute for an impeachment conviction. Again, if Democrats think that they have any chance of getting a conviction, they would have little reason to abandon that course. But censure is a great substitute for a failed impeachment, which also has no formal legal effect. All other things being equal, success is better than failure.

The real benefit of censure, though, is that all other things are not equal: censure would likely garner more Republican votes than would impeachment. While censure and failed impeachments may only have practical or symbolic effects, the practical and symbolic effect of a stronger, more bipartisan vote is substantially weightier.

If history is any guide, President Trump’s second impeachment trial will feature a lot of Republican hedging. Many Republican senators—probably most—will say some version of “What the president did was wrong, but . . .” There will be a lot of “buts” to choose from. Some will argue that people who have left office cannot be tried. Some will argue that people who left office can be tried but should not be. Some will argue that what the president did, while troubling, does not rise to the level of an impeachable offense. Some will argue that disqualifying someone from running for president is too undemocratic of a remedy.

Censure sweeps those “buts” off the table. The only question would be whether what the president did was wrong. To be sure, not all Republicans who say “What the president did was wrong, but . . .” in an impeachment case would necessarily vote for censure. The whole point of their hedging in the impeachment case would be to avoid having to make the difficult choice between condemning and backing Trump. Forced to make that choice, many Republicans would still find it a difficult one. It is easy to imagine large numbers of them choosing to back Trump. But they would have made a clear, binary choice.

This end result would be useful if there are not enough votes to convict Trump in an impeachment trial. To the extent that Republican would-be acquitters are willing to support censure, censure would be a stronger and more consequential rebuke than a failed impeachment. To the extent that Republican would-be acquitters oppose censure too, they will have been more clearly identified and (if their numbers are small enough) isolated.

The current impeachment efforts against President Trump are driven by Democrats’ desire to make Trump pay for what he did. A failed impeachment would not make him pay. A successful censure, by weakening the position within the Republican party, could.

But there is a more fundamental purpose here than just helping one side or hurting another. At a critical moment in the nation’s history, in the wake of a literal assault on our republican democracy, voters need to know where their legislators stand.

There are two questions for members of Congress to answer here. First, do they think that President Trump did anything wrong? Censure will allow a clear answer to that question; impeachment will mainly just cloud it.

Second, if President Trump did something wrong, what should we do about that? The answer a failed impeachment gives is: Nothing. The answer censure gives is: Say so. That might not sound like much, but at this moment of deep division, it could mean quite a lot.

3 thoughts on “Impeachment vs. Censure: Constitutional Law, Politics, and the Art of the Possible

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