Impeachment 101: Why, When, and How the People Can Fire the President

Getting rid of the President is a popular subject these days. And Sunstein's advice on the subject can show us the protocol — and the history — behind firing the most powerful man in the free world.

Cass Sunstein: Impeachment it turns out was a very central part of the Constitution of the United States meaning it’s obscure, people don’t know about it, but it probably was necessary for the Constitution actually to be ratified by the American people. You can see the impeachment clause, and I’m going to explain its content in a moment, but you can see it as part of the American Revolution itself in the sense that the revolt against a king who was a leader who had authority over 'We the People' was incomplete if we didn’t have a mechanism by which we could get rid of our leaders, including the president, which was a way of ensuring we didn’t have anything like a monarchy.

Now the way impeachment worked is that in the early American colonies before America was America we started impeaching people who were following orders from the king. And what that meant was that an abusive authority would be called out by some legislative assembly and in the initial phase what would happen would be there would just be a vote that the person had abused authority and then if the thing fell to completion, and this goes back to England, there would be a trial. And in the trial the person would be convicted of the offense for which impeachment was had and if convicted the person would be removed from office. So to bring this back to the American structure as it developed after the Revolution and after the Constitution came into place, and this was thought through with such care in Philadelphia when the Constitution was debated, the idea was that if there is a high crime and misdemeanor, and we can talk a bit about what that means, or if there’s treason or bribery then the House of Representatives by majority vote can impeach the President, the Vice President, Supreme Court justices, members of the cabinet. And what that means is there’s a kind of official judgment that the person has done something very, very bad and after that the proceeding moves to the Senate, which is acting like a court and which decides whether to convict, which means to remove the person from office. The House makes the impeachment vote by a majority vote. That doesn’t mean anyone has to leave office. It then goes to the Senate, which if it votes by a 2/3 majority to convict on the ground on which the let’s say President was impeached then the person is, as they say about baseballs that are hit very hard... the President is gone. 

Yes. Because the word 'high crimes and misdemeanors' seems to mean kind of felonies, high crimes and misdemeanors, the normal current reader would think oh is there a crime? If you go back to the 18th century it’s actually a lot more inspiring than that and kind of fitting with a system that’s committed to self-government. So if there’s a crime, let’s call it jaywalking or shoplifting or not paying your income taxes, that’s not a high crime or misdemeanor in the constitutional sense. What is meant by high crime and misdemeanor is an abuse of official authority and shoplifting or income tax evasion that’s a crime, it’s not an abuse of official authority. If the President of the United States, let's suppose, decides I'm going to pardon every police officer who shot an African-American, that's not itself likely to be a crime. The President has the pardon power, but that is definitely an impeachable offense. In fact James Madison spoke of abuse of the pardon power as an impeachable offense. If the President of the United States decides I’m going to go on vacation in Paris for the next six months because it’s really beautiful, that’s certainly not a crime, but it’s an impeachable offense that’s an egregious neglect of the authority of the office. So abuse of the authority of the office if it’s egregious, pardon power for example would be one, if the president starts invading civil liberties in a terrible way by locking people up for insufficient reason, by going crazy in terms of security measures at airports and borders — and by going crazy I’m using that as kind of a legal term of art — really exceeding the bounds of the reasonable, that is not a crime but that is an abuse of authority and there we’re right back in the impeachment clause, which is I think first and foremost a way of preserving our rights and liberties and a way of calling out an authority who has invaded them. Think now about what the American Revolution was fought for. 

I’ve spent a lot of last months in the 18th century and the people back then were on the impeachment issues and presidential authority issues they were off the charts good. In the debate in Virginia on whether we should ratify the Constitution, one really learned person said, “We cannot ratify this Constitution. And the reason is the pardon power.” And it was urged by the skeptic, the President could participate in something really sinister with one of his advisers, then his advisor is in legal trouble and then the President can pardon the person for engaging in illegal or corrupt activity that the President initiated. How can we allow a constitution that has that in it? That’s a fair question and it was stated with great precision as an objection to the Constitution as I recall by someone who had actually signed the Declaration of Independence and I know that person was at the Constitutional Convention and refused to embrace it. James Madison very quietly responded, and he said, “I think the gentleman has overlooked something,” isn’t that a sweet way of responding to someone when the stakes are super high whether we’re going to have a Constitution. “The gentleman has overlook something,” and then Madison explained, “If the President uses the pardon power to shelter someone who’s done something terrible there’s something available in the Constitution, impeachment.” And Madison actually did his interlocutor one better, the interlocutor was saying, “If the President advises something terrible and participates in it and then pardons the person, isn’t that awful?” Madison said, “Yes that’s awful and that’s impeachable,” but Madison’s words seemed to go beyond that to say if you pardon someone who’s done something terrible, one of your own people, that’s itself a legitimate grounds for impeachment, which suggested that abuse of the pardon power, in the words of James Madison, “That’s an impeachable offense.” And with respect to the meaning of the Constitution, it is hazardous to argue with James Madison.

The beauty of the impeachment mechanism is its connection with the principle that we have a republic and not a monarchy, which means it puts 'We the People' in charge. That means that in vocation of the impeachment mechanism, whether it’s a Democratic President or a Republican President, really depends on 'We the People'. So if you think of examples there was some interest under President Bush and President Obama some interest in impeaching them. But I think thank goodness we the people, even if we didn’t like either of those presidents, didn’t think there was an impeachable offense. Under President Nixon, by contrast, and I believe very unfortunately under President Clinton because he didn’t commit an impeachable offense, but under both of them there was a public demand for getting rid of them on the ground that President Nixon had abused his presidential authority to cover up crimes and also had himself use presidential authority to invade civil rights and civil liberties. That got people, whatever their political affiliation, sufficiently charged up that they either were willing to go along with those members of the House of Representatives who wanted to impeach Nixon, or they fueled that. In the Clinton case there was a thought, and again perjury and obstruction of justice, which were the charges against President Clinton, there’s nothing good about them they’re very bad, but they weren’t in his case impeachable offenses under the Constitution. Nonetheless people were charged up. A lot of people were charged up.

So whether the President is a Democrat or a Republican, whether it's President Trump or in the future some left-of-center President, if people think that there's something that really is beyond the pale and that's not the Constitutional test but it's a kind of colloquial way of getting at the Constitutional test, beyond the pail of legitimate uses of authority then we the people we’re the boss. So the question who’s the boss? The first three words of the Constitution say it, we the people and the impeachment clause kind of makes that real.

It's hard not to write about the laws of impeachment without invoking the current POTUS, Mr Donald J. Trump. A former reality-star with no governing experience, Trump has set foreign relations into a panic with his rage-fueled Tweeting habit. In almost every public moment since the election (and before it) — from his talk about grabbing women by the genitals to mocking a disabled reporter to suggesting the 2017 Puerto Rico hurricane wasn't a "real" disaster — he's offended the majority of Americans. But with a House and Senate both solidly inhabited by the Republicans (for now), today's politicians are having a hard time getting the ball rolling on impeachment. Cass Sunstein walks us through how it could come to be. And it's a lot easier than you might think. Cass Sunstein’s research is cited in The Influential Mind: What the Brain Reveals about Our Power to Change Others byTali Sharot.

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We don't have to tell you what it feels like when you don't get enough sleep. A night or two of that can be miserable; long-term sleeplessness is out-and-out debilitating. Though we know from personal experience that we need sleep — our cognitive, metabolic, cardiovascular, and immune functioning depend on it — a lack of it does more than just make you feel like you want to die. It can actually kill you, according to study of rats published in 1989. But why?

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The study, from researchers at Harvard Medical School (HMS), is published in the journal Cell.

An unexpected culprit

The new research examines the mechanisms at play in sleep-deprived fruit flies and in mice — long-term sleep-deprivation experiments with humans are considered ethically iffy.

What the scientists found is that death from sleep deprivation is always preceded by a buildup of Reactive Oxygen Species (ROS) in the gut. These are not, as their name implies, living organisms. ROS are reactive molecules that are part of the immune system's response to invading microbes, and recent research suggests they're paradoxically key players in normal cell signal transduction and cell cycling as well. However, having an excess of ROS leads to oxidative stress, which is linked to "macromolecular damage and is implicated in various disease states such as atherosclerosis, diabetes, cancer, neurodegeneration, and aging." To prevent this, cellular defenses typically maintain a balance between ROS production and removal.

"We took an unbiased approach and searched throughout the body for indicators of damage from sleep deprivation," says senior study author Dragana Rogulja, admitting, "We were surprised to find it was the gut that plays a key role in causing death." The accumulation occurred in both sleep-deprived fruit flies and mice.

"Even more surprising," Rogulja recalls, "we found that premature death could be prevented. Each morning, we would all gather around to look at the flies, with disbelief to be honest. What we saw is that every time we could neutralize ROS in the gut, we could rescue the flies." Fruit flies given any of 11 antioxidant compounds — including melatonin, lipoic acid and NAD — that neutralize ROS buildups remained active and lived a normal length of time in spite of sleep deprivation. (The researchers note that these antioxidants did not extend the lifespans of non-sleep deprived control subjects.)

fly with thought bubble that says "What? I'm awake!"

Image source: Tomasz Klejdysz/Shutterstock/Big Think

The experiments

The study's tests were managed by co-first authors Alexandra Vaccaro and Yosef Kaplan Dor, both research fellows at HMS.

You may wonder how you compel a fruit fly to sleep, or for that matter, how you keep one awake. The researchers ascertained that fruit flies doze off in response to being shaken, and thus were the control subjects induced to snooze in their individual, warmed tubes. Each subject occupied its own 29 °C (84F) tube.

For their sleepless cohort, fruit flies were genetically manipulated to express a heat-sensitive protein in specific neurons. These neurons are known to suppress sleep, and did so — the fruit flies' activity levels, or lack thereof, were tracked using infrared beams.

Starting at Day 10 of sleep deprivation, fruit flies began dying, with all of them dead by Day 20. Control flies lived up to 40 days.

The scientists sought out markers that would indicate cell damage in their sleepless subjects. They saw no difference in brain tissue and elsewhere between the well-rested and sleep-deprived fruit flies, with the exception of one fruit fly.

However, in the guts of sleep-deprived fruit flies was a massive accumulation of ROS, which peaked around Day 10. Says Vaccaro, "We found that sleep-deprived flies were dying at the same pace, every time, and when we looked at markers of cell damage and death, the one tissue that really stood out was the gut." She adds, "I remember when we did the first experiment, you could immediately tell under the microscope that there was a striking difference. That almost never happens in lab research."

The experiments were repeated with mice who were gently kept awake for five days. Again, ROS built up over time in their small and large intestines but nowhere else.

As noted above, the administering of antioxidants alleviated the effect of the ROS buildup. In addition, flies that were modified to overproduce gut antioxidant enzymes were found to be immune to the damaging effects of sleep deprivation.

The research leaves some important questions unanswered. Says Kaplan Dor, "We still don't know why sleep loss causes ROS accumulation in the gut, and why this is lethal." He hypothesizes, "Sleep deprivation could directly affect the gut, but the trigger may also originate in the brain. Similarly, death could be due to damage in the gut or because high levels of ROS have systemic effects, or some combination of these."

The HMS researchers are now investigating the chemical pathways by which sleep-deprivation triggers the ROS buildup, and the means by which the ROS wreak cell havoc.

"We need to understand the biology of how sleep deprivation damages the body so that we can find ways to prevent this harm," says Rogulja.

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