How Leaders Come and Go: The Role of Improvisation and the Limitations of Formal Rules
Abstract: In democracies, defined as non-dictatorships with some element of consent in the social and political culture for the selection of leaders, there must be a basis for forced endings during a term of office. Leaders are typically afforded a presumption of continuity in office for a designated duration. The development of unforeseen circumstances may—and on rare but not unknown occasions does—override the expectation of a fixed term of office with an ending defined by a regular process for replacement, such as elections or a system of fixed succession. Some leaders, either because of incompetence or abuse of office, lose the level of acquiescence—plus some undefined quantum more—that was required to attain the office. Formats for early expulsion of heads of state are often prescribed in a written constitution. Improvisation can play a role with heads of state, but those methods can be thought outliers, from assassination as a culturally understood expectation to improvisations using formal powers not designed as constitutional removal procedures. An obvious example is prosecution and plea bargain in which resignation is one price of a bargained plea.
The American presidency is set apart on any account of forced exits. An American President has never been removed from office by the formal constitutional design of impeachment (charging) and conviction (with removal and the option of a formal bar from further service). Nor has any President left office as part of a prosecutor’s negotiation with the incumbent for resignation in exchange for a light sentence. By contrast, the Vice-President has exited office as part of a plea.
This Essay focuses on the disuse of the formal process of removal of a U.S. President and compares it to other, less-formal methods. What does the historical record tell us about formal process as a means for removing bad leaders? Are other leaders removed by formal process? Does improvisation more frequently play a role? Certain examples within the United States, such as governors and mayors, are instructive. Might formal process trigger a kind of institutional dread about the impact on an office, or even on the dignity of the human occupant, that blocks the willingness of those with responsibility to do their formally prescribed job? Is there a cost to a seeming reluctance to deploy formal rules and thus to create a fully developed public record of executive behavior meriting formal condemnation and removal? What is the benefit substituting improvisation for formal processes? Does improvisation provide adequate protection from a corrupt executive in an emergency? Even if the answer is yes to improvisation as rescue in crisis, does improvisation come at the expense of an adequate public advancement and recordation of norms governing leadership positions? Last, do the facts surrounding the resignation of President Richard Nixon count as either formal process or improvisation? What was it? What was its long-term cost? In a development as this is being completed, the indictment of former President Trump adds to the weight of historical concern that the pardoning of Nixon, by a President he appointed, inflicted long-term damage on the rule of law with respect to the presidency. Further, and regarding a development as this goes to print, what might we make of the formal rule in the U.S. Constitution, Amendment 14, Section 3, newly noted by distinguished scholars and an eminent conservative judge, that may on its clear terms render the former President ineligible “to hold any office, civil or military, under the United States?” The postscript to this piece invites readers to visit a forthcoming piece on the "constitutional dread” unleashed by this newly prominent formal provision for showing a former and aspiring president the door marked Exit.
Introduction
For several years, I have thought about and written about votes of no confidence. Michigan State University College of Law, dating back to its urban years in Detroit in the 1980s and going forward into the first decade of the twenty-first century, has experienced a total of three votes of no confidence in its Dean. In all three instances, the Dean stepped down. That history makes this law journal a fit venue for a discussion of my interest in a wider scope of inquiry into the forced departure of leaders from an office before their term has expired. This piece explores an outgrowth of my work on the vote of no confidence and draws on the insights of work by students at the College of Law.
Besides sparking my interest in no confidence votes, the setting of the College of Law helped to widen the focus of my interest in leader removal from votes of no confidence,[1] primarily an oral tradition in certain organizations, to the formalized process for removing a President of the United States. My examination of the constitutional process of presidential impeachment began with my participation in a teach-in held at the Law College on November 18, 2019, to address the first impeachment proceedings against President Donald J. Trump. The concern with impeachment brought me to a comparison of formal written provisions for removal with improvisation by groups positioned to create pressures for removal. Though often effective at achieving a leader’s departure, votes of no confidence usually lack formal authorization in a written document. Hence, improvisation and oral tradition sustain their use.
One means of gaining insight about the comparison is to consider how other leaders attain office and what patterns can be detected in how they face early termination for misbehavior or because of simple loss of adequate support to continue. That look at how leaders attain offices and lose them before the full duration of a term has guided my development of a seminar in Leadership Transition. Presidential impeachment draws the interest of many students in my Leadership Transition seminar. The students and I also explore examples of leaders subject to forced exits by way of coup,[2] trial and execution,[3] prosecution and plea bargaining,[4] parliamentary ouster through improvisation in a clouded legal setting,[5] direct removal by popular referendum,[6] gubernatorial impeachment,[7] and, in the worst case, assassination.[8] The latter was once, according to a historian of civil war, understood as an approved method to defend democracy against monstrous usurpers, where democratic accountability was weak.[9] Where relevant in this essay, I will note insights offered by my students, as I have above in the case of assassination, about other nations and institutions. I have benefitted from students’ insights and varied examples they used to draw comparisons to my overall thesis about the inevitability of leadership transitions. That hypothesis was described in a schematic for my presentation and then in a series of hypothesis developed and presented in my syllabus.[10]
The impeachment teach-in and the continuing interest of my students in impeachment, as well as my examination of the improvisational resort in some settings to votes of no confidence, brings me to the comparison set forth below.
Constitutional Formality, American Culture, and Dread
As I pondered the impeachment of a President, it struck me that a focus on the constitutional arguments that have swirled about each instance of presidential impeachment are, to an unfortunate degree, stale, repetitive, and even provincial to a U.S. culture of lawyer-dominated argumentation.[11] The debates in Congress tend to be unreflective, showcasing lawyering as combat, at worst, or, as something less than best, “blinkered legalism,”[12] in recent years productive of stalemate. Since the constitutional moment in 1974, when the United States Congress achieved sufficient agreement for the Judiciary Committee to produce bipartisan articles of impeachment against President Richard Nixon,[13] no Congress has shown a capacity for political consensus about presidential misconduct serious enough to garner apparent support for Senate conviction and removal.[14] Nor has any President ever been impeached and removed from office after conviction of the magic constitutional offense of “high crimes and misdemeanors.”[15]
Though often effective as phrasemakers, the Founders fell short in their shared hope for their descendants to hold Presidents to account for “the misconduct of public men or abuse of the public trust,” the kind of problem for which Alexander Hamilton, a proponent of a strong executive, argued impeachment should result.[16] Yet leaders in other nations and in organizations of every kind, do fall from favor and face expulsion from an office to which they have an expected right of continuance. His Excellency Benito Mussolini, Head of Government, Duce of Fascism, and Founder of the Empire suffered a vote of no confidence by his hand-picked Grand Council, which included his son-in-law.[17] He was arrested on the say so of plotters and the agreement of the King of Italy. The plotters concluded, in light of his demagogic powers, they had better contain him, despite uncertainty about any authority to take his freedom along with his office.[18] The machinery of the state responded with efficiency, placing him under arrest and moving him to the island of Ponza, above Naples.[19] At the same time, there was a mixture of improvisation and a claim on formality concocted from the need for inspiration and in seeming reliance on remnants of the Italian constitutionalism not fully crushed by the force of the Fascist takeover.[20]
Despite the lack of a removal of Mussolini in formal proceedings fully public and transparent at the time, the government later took legal enactments meant to discourage eventual attempts to rewrite history and glorify Il Duce and the Fascist Movement.[21] By contrast, the one United States President who left office under pressure and in seeming disgrace was eulogized, even lionized, by the sitting United States President at his funeral on April 27, 1994.[22] How unusual is the seeming bulwark that assures U.S. Presidents of a significant guarantee of continuance in office and access to honor after dishonor in office? Might it be the formality of the constitutionally prescribed method for charging, trying, and removing a President? It is certainly not a risk to life such as the regicides and the members of the Grand Council knew they faced, and which was entirely real as a threat.[23] Indeed, formal process can be generally counted on to protect those who act in accordance with prescribed methods from revenge like that extracted from the regicides and from those who ousted Mussolini.
A. The Limitations of Formality for Presidential Impeachment
Formality in a written constitution, as with presidential impeachment in the United States, may block an improvisational path potentially available in the absence of such formality. Formality has the potential to become a barrier rather than a path to accountability for reasons of something, for want of a term in use, we might call “institutional dread.” Though constitutional interpretation of the meaning of a phrase such as “high crimes and misdemeanors” arguably grants a license, and imposes a duty, of generational improvisation, the invitation given by formality allows for rules of engagement and argumentation habits to calcify and become barriers. Formality becomes ritual, and ritual becomes empty. Did the Framers mean to give the nation a design for futility? Or was the formality a charge upon subsequent generations to shape their judgment to meet new forms of presidential danger?
As behavioral boundaries evolve and underlying political norms about permissible boundary transgressions respond, improvisation may well be the mandate of political judgment awarded and even assigned by the Constitution,[24] but counter improvisation evolves to hinder a duty to act—at all.[25] Formal duty reduces the chance for shared resolve and invites stalemate. An apparent result is that the place of the President as head of state, and the formal written constitutional format of the congressional authority, has led to a conceptual and practical block against the application of judgment based on the expectations of the framers that political judgment would be available. There is also simple fear of retaliation by a powerful executive leader able to shape public responses, especially in the era of social media and new avenues for effective use of propaganda.[26] Interestingly, there have been repeated reports of congressional behind-the-scenes acknowledgment that certain members “detest” the conduct of the 45th President and wish him gone but fear possible violence would ensue if their view were public—which a vote favoring impeachment or conviction would necessarily be.[27]
1. Does Formality Induce Dread? An Examination of Nixon’s Impeachment
Putting aside physical and political fear of retribution, I have theorized that there is deep dread of formal acknowledgment by a Senate conviction and removal of President, thus indicating by a formal record that the American people elected an unfit person as President.[28] I have posed the question to classes and others of why Republicans, who claimed to be prepared to convict and remove Richard Nixon as President of the United States in August 1974, preferred to advise him to resign. Typically—indeed without fail—the answer is practicality: why, goes the response, have a process that can be avoided if we know the foreordained outcome? That answer may be obvious as a low order of practicality. But for the maintenance of constitutional norms, embedded in the plan of formal deliberation over deep expectations of conduct by an office thought by the Framers to require accountability to prevent seizure of executive power by self-seeking demagogues,[29] practicality is not a satisfying response. If the constitutional impeachment power imposes even a modicum of the duty Paulsen argues it demands of Congress, practicality suits a journeyman’s workshop for sawing and cutting more than a temple of democracy.[30]
The unwillingness to make the formal, final, historic congressional statement that a President committed deep wrongs points to a confirmation that formal process directed at a head of state can become a weak protection[31] to a nation. Though mandated removal may be a political trauma, with loss of at least the appearance of stable government, on another view, its absence in American history may also be an expression of a constitutional misfire, itself a challenge to stable government. Both scholars and polemicists have named several impeachments that merited conviction and removal.[32] Yet none has occurred in the constitutional history of the United States.
2. Does Formality Encourage Evasion? An Examination of Political Behavior
Evasion: Sidestepping Conflict. A useful term that captures a form of political behavior in the face of a volatile conflict is evasion.[33] The specific example is the decades-long effort by the two dominant political parties before the Civil War to avoid a resolution of the slavery conflict. Joel Silbey explains that “other political impulses” dominated in a nation that saw other matters as “more critical ones facing the nation” by comparison with the sectional conflict over slavery.[34] Practicality might be said to have been the answer for white politicians to the moral and political dilemma of a free nation that contained within it a population of enslaved persons. Addressing other issues was understood to be practical as a political strategy by politicians of both North and South.
If a domain for action to address deep dysfunction in an entity, whether a government or an organization, contains prescribed rules requiring a controverted resolution affecting deep emotions and interests, the instinct can be delay, silence, and evasion.[35] Hope for the rescue of time, or determination to maintain the dysfunction while avoiding catastrophe, can prevail. In the case of an American enslaved population, practicality finally gave way to a catastrophic war, in which one section laid claim to a formal action of constitutional rupture—improvisational formality.[36] Thoughts of leader accountability for a rebellion, potentially in a trial of the person who served as President of the Confederate States, was eventually shelved for fear that a formal resolution by trial posed risks best avoided by evasion.[37] Evasion of the challenge of removing a dangerously bad President may, in similar fashion, mean that the problem of bad Presidents who learn their conduct is immune from a constitutional check through impeachment and conviction (and potential ineligibility to office and criminal liability) becomes lethally dangerous.[38] On the other hand, as Kyle Velte has argued, some legal processes can create social meaning without promulgating a precedent.[39] In the case of a pressured exit that does not go all the way to formal process, the result is, arguably, an unstated but influential social meaning about presidential immunity. In the context elaborated by Professor Velte of “social meaning” created by postponement, the 2023 term of the Supreme Court moved from postponement as a form of cultural influence without a formal and enforceable ruling to a willingness to make law on a deeply contested, salient issue in the cultural divisions of the day.[40] Does that suggest the possible path in which social meaning created by temporizing over leader accountability moves toward a formal resolution, and, if so, what format? Entire immunity? What is the social meaning created by the historical resistance to deployment of the presidential impeachment power to remove a President from office? What formal process might confirm presidential immunity? Might there one day be a confirmation of the impeachment power? Would a criminal conviction of a former President become a new social meaning buttressing the formal constitutional power against presidential misconduct? Is a moment transforming social meaning to formal meaning at hand? Efforts in the House of Representatives seemingly recognize the idea of implicit social meanings as influential and appear to believe such social meanings can be undone to protect against an eventual formal resolve against either the former President or a similar executive.[41] Can they? How?
In the American presidential case, a deep history of tiptoeing and hoping for the best may have run its course in the instance of the failed impeachments of 2019 and 2020, with the problematic undertaking in 1997 of a precursor to the growing incapacity in the national forum of formality to bring constitutional gravity to formalized public discourse. Formality does not, yet, produce removal, but whether used for a bad reason or a good reason, it now produces proceedings that fail as enforcement of norms and as serious constitutional deliberation to boot.[42] The failure is near complete. One of my recent students wrote a paper arguing that the problem is partisanship, a factor that makes impeachment by the House either unserious and partisan, or, if an action by the House is supported by constitutional meaning and evidence of deep presidential misconduct, renders acquittal by the Senate, in effect, lawless for partisan reasons.[43] My claim is more general: formalism calls upon a capacity in Congress to declare a President guilty of offenses against the constitutional order. That capacity has yet to make an appearance in the nation’s constitutional history. Professor Gewirtzman assigns a certain blame to an original loss of nerve by the Founders, as well as their understandable failure of imagination about a distant future. In Gewirtzman’s words, the result of the Framers’ failure to anticipate the powerful presidency of the twenty-first century, along with “Trump-era politics,” has given the nation “an 18th-century governance procedure running up against the reality of 21st-century politics.” On the other hand, perhaps institutional paralysis about a formal process to remove the President has been a political and cultural reality from the nation’s earliest days to the present. There is recognition of the risk of a bad President yet a deeply embedded blockage against the constitutional formal process that would rule this President to be the heretofore-only-hypothetical bad and dangerous executive in need of formal expulsion for “high crimes and misdemeanors.” In early days, the heated language between leading figures, such as Jefferson and Adams, could be understood as quarrels among generational cohorts, who might see deep character flaws and bad ideas in one another but experience it as a family quarrel rather than the risk of executive crime against which Hamilton had warned.[44] Despite Nixon’s exit, no President has been held so constitutionally defective to merit conviction and removal, giving the American presidency, as a formal matter, a record of perfect conduct from the inauguration of Washington to the present day of presidential incumbency. The constitutional process to protect the nation from executive misconduct, a reality that is scarcely unknown to the American executive office, has thus only provided an empty check against dangers which the Founders warned while presenting for the record a story of executive propriety.[45]
3. Do Dread and Evasion Degrade Norms and Create a National Silence?
The case of the never-formally-impeached-by-the-House of Representatives, hence un-convicted-by-the-Senate, and never-prosecuted, but jawboned-out-of-office Richard Nixon is instructive for the way the barrier against formality helps induce a loss and/or degradation of institutional norm enforcement, popular political knowledge, and constitutionally shared rules, since they are neither stated nor enforced. Additional evidence of a general loss of nerve about, in the words of one of my students, “placing a scar on the presidency,” appears in the lack of interest the Judiciary Committee had in pursuing an inquiry into the pardon given by Nixon’s successor, Gerald Ford—an act that fully absolved Nixon of liability for offenses against the United States in the Watergate scandal.[46] The shrinking from formal resolution adjudicating presidential malfeasance ventured more deeply into a dread of inquiry implicating dealings between a disgraced, but unimpeached or convicted President, and the successor that he appointed. Without suspecting impropriety or a seedy “deal,” an inquiry had a serious constitutional purpose—deliberation on the constitutional cost of freeing a President, who resigned for manifest wrongdoing, from all legal accountabilities.
Despite efforts, former Congresswoman Elizabeth Holtzman was unable to persuade fellow members of the House Judiciary Committee to call hearings into the circumstances surrounding the Ford-Nixon pardon decisions.[47] As with the short circuiting of the formal process by the Republican invitation to Nixon to resign and avoid impeachment and trial, the pardon and then the refusal of Holtzman’s colleagues to hold a hearing on the process leading to the pardon left a void in a public record.[48] It also expressed a kind of reverence for the office and perhaps for the human occupant, arguing that relinquishing the office of President was a great punishment and criminal penalties would somehow be a political personal foul. Holtzman argues that much mischief has followed the abdication of public recordation of presidential crime, allowing the lessons of the Nixon crime spree to be blurred and the opportunity to state and polish normative teaching to strengthen subsequent presidential behavioral expectations to be lost.[49]
The example of a preference to have Nixon resign as opposed to impeachers going forward with a Senate conviction, generally taken to be simple common sense, seems to suggest an unease with a full use of formal powers to remove a President. The subsequent pardon, and unwillingness by the Judiciary Committee to seek evidence of any hidden agreements about it made with President Ford, in Holtzman’s view, created long term damage to the nation by creating a double standard for high officials and for everyone else.[50] The congressional stall meshes with the idea that there is unease and anxiety about the full use of formal powers against a leader who holds a high executive office.
Even if Ford’s decision was possibly sound and his judgment good, the nature of the question about the pardon by a named successor of a President forced from office merited the formalizing of a public record by the Congress that had made a record of his misconduct. The moment was of constitutional weight. The preference of Holtzman’s colleagues for official amnesia about the cancellation by Nixon’s successor of presidential accountability to the criminal law was, in her view, an evasion by her colleagues of their shared responsibility. A formal sense of duty, one owed to the future of constitutional government, imposed a mandate to place in the records of American constitutional experience an assessment of how a bad man of Hamilton’s warning was able to leave office without any officially rendered resolution “for the books.”
Concerns over the formal power of presidential pardon, especially in light of uses by later Presidents in dubious ways that improvise under the aegis of absolute formal power, has led to proposals for reform to limit pure presidential license.[51] In a high minded early law review article explaining why the pardon power is a critical form of relief from the harshness, and capacity for error, of the criminal law, Indiana Governor James P. Goodrich warned against failure to respect the function of the pardoning power to check problems in court administration of justice. Referring to the pardon power of an executive as “the most sacred, the most difficult of all, executive functions . . . intended to be used to temper justice with mercy,” Goodrich emphasized its use in aid of those without power or means.[52] He further explained, as to the purpose and need for the pardoning power: “It is most difficult through our local courts and juries to secure the prosecution and conviction of men of high social, financial and political standing who violate the law.” Despite these bracing explanations of where a system of criminal law must call upon the softening touch of mercy, in the matter of an absolute power, Presidents are in the lead against counter moves by general citizen opinion, however well organized, or the clarity of forgotten teachings on the moral purpose of the pardon power.[53] Will Congress ever gather the will to regulate the abuse of the pardon power, or is the design of the pardon power, joined to an unused (unusable?) impeachment power, a flaw immune to any check?
4. Is the Fruit of Evasion Poisonous?
Though Richard Nixon remains a figure disgraced in the eyes of many critics, as a President he remains “unscarred” by a formal and completed public record. In his remaining life, Nixon gained a measure of rehabilitation, writing books, enjoying warm welcomes in travels abroad, advising presidents and other figures, and being eulogized in 1994 by President Bill Clinton.[54] In his remarks, Clinton focused on the important principle that Nixon should not be “judged on anything less than his entire life and career,” implicitly inviting treating his crimes while President as of somewhat minor significance in the story of Richard Nixon’s presidency and long political life. The elevation of a lesson about fairness to a person obscures civic lessons about the rule of law and preservation of presidential norms written by the concerted actions of public officials—prosecutors, judges, and members of Congress as well as the press. A story of success was foreshortened as an American quasi-constitutional lesson for the American President of accountability, citizen vigilance, and guardianship. In contrast to the risks of a possible treason trial of Jefferson Davis,[55] formal impeachment of Nixon did not have obvious risks. Aside from the claim of raw practicality, it would seemingly have brought far more value to a historical record than to have posed risk to constitutional debates over such weighty and even dangerous matters as the right of states to secede from the Union.[56] Yet, the impulse to rescue the dignity of one man, twenty years after his forced resignation in disgrace, need not have been made a leitmotif of an occasion on which the memory of a profound constitutional legacy was also at stake. If one may not denounce the departed at his final service, one need not seek to bury a rightly earned disgrace—except to venerate the occupants of high office.
5. What Cost Nixon’s Rescued Dignity?
The Nixon example in the United States suggests the functions of improvisation—solve a short-term crisis—and the risk to long-term norm maintenance and refinement. In particular, the pardon granted to Nixon, after the formal impeachment power was laid aside, arguably inflicted long-term harm on the character and conduct of those occupying the presidential office. The pardon power is both formal, granted by the Constitution, and subject to improvisational use, and misuse. In the Nixon case, Nixon survived, left office on his own motion, and escaped prosecution by maneuvering through a combination of the formal and improvisational. The authority of the special prosecutor was on paper formal but also fashioned as a new tactic for insulating the Department of Justice from political interference and was not yet embedded in law.[57] The practice of giving special counsels formal authority in law was even contestable as a constitutional matter.[58] The hearings in Congress were formal and the result was an intermediate conclusion in committee that Nixon had violated his oath of office and should be removed. That formal process was short circuited when Nixon was encouraged to resign, and he did. Then, after having said that he would not pardon Nixon until there was an indictment, Ford preempted the use of further formal but discretionary powers by prosecutors (formal powers as partial improvisation) by pardoning him preemptively. The pardon power involves political judgment and is hence subject to a wide range of uses and lacks constraint by formal rules. It has become arguably problematic in combining the non-reviewability of a formal constitutional power with the absence of rule-of-law constraints. Indeed, the norms around it involving process have no formal standing and were entirely ignored in the last days of the Trump administration. While the Nixon downfall may have been thought to create new protections against executive misconduct, it did not reckon with somebody in the mold of Trump. A President like Trump presumably would be fine with the process that Nixon endured because such a President would not have resigned and would have organized the Republican Party to protect him from impeachment, conviction, and removal. And a brazen executive, were there one with a previous life of having escaped legal problems as a regular part of business, would have assumed he or she could overcome any prosecution with a variety of political tactics. Further, the Nixon example, barely imagined by the Holmesian “bad man” as disgrace but as escape and restoration, demonstrated the seeming immunity of a President or former President from accountability, especially in light of Nixon’s ultimate escape from the arm of the “sheriff.”[59]
For a President who wishes to be freed from the usual claim on him (or her) of maintaining a reputation for basic ethics and morality, Nixon as an executive role model provides a plan for a getaway. So, in the case of our presidential format for accountability, to maintain a semblance of constitutional standards for restraining a corrupt executive, the dread of using formal process poses a threat to the constitutional order and to the democratic commitments of a free people. Nonetheless, in the end, even though improvisational short-term solutions are not an ideal held out in theories of power and its oversight, they arise and persist as an inevitable response by a free and engaged citizenry to the problems associated with allocating power to leaders and restraining it by formal rules. Always subject to attack as illegitimate, the test for any instance of improvisation to oust a leader is fit with a culture and the overall support among both other leaders and the general population subject to the power of the leader. The risks of misuse by a “cabal” or even mistaken use on the basis of wide agreement are present, but the possession and exercise of formal power by a leader and his supporters are also not guarantees of propriety, moral soundness, or even consistency with cultural precepts embedded in political traditions and constitutional provisions of a nation.
B. Other American Examples: The Limitations of Formality for State Processes
Many states have procedures for impeachment or removal of state officers, providing potential to compare how state chief executives fare vis-a-vis the complicated and formal removal processes for the United States President.[60] A common state removal procedure is recall by popular vote.[61] Removal by popular vote seems simple and fair—in some sense the process is a perfect match for how the governor attains office.[62] But design choices are not straightforward, rendering formality complex and not at all simple.[63] State constitutions also contain provisions for impeachment.[64] Attempts at removal by plebiscite, i.e., recall, are rare, as are attempts at impeachment and removal.[65] But governors do leave office for bad behavior. Let us look at how they more often decide to go.
1. State Formality: An Examination of Design Challenges
Because of a recent effort to remove the governor of California with the relatively easy trigger for a voter petition to mandate a removal election, recognition arose that removal design can be flawed but an ideal trigger is not obvious.[66] Before the voting, the supporters of the governor expressed alarm that the formal removal process could result in a governor’s replacement by a process that would yield an absurd result—ouster of a popular governor in favor of a person elected as a replacement on the same ballot for removal, but with far fewer votes than were cast for the governor’s retention.[67] Despite alarm about an arguably flawed design of the recall process, the governor prevailed.[68] The incident, however, illustrated the difficulty that formal process is hard to design and can become perceived as dangerous and even akin to unmanaged democratic excess—the charge generally made against certain techniques reliant on improvisation, such as organizational votes of no confidence.[69]
Further evidence of institutional dread is that formal process for recall or removal of governors or other state officials (but see use for local officials) generally lie idle, while forms of improvisation have some use. A recent Pew Research Center study found that “only 21 of the nearly 2,400 people who have served as a state governor since U.S. independence have resigned under pressure such as after a criminal conviction or . . . under threat of imminent impeachment.”[70] Forced removal is less common: “Eight other governors have been impeached and removed from power, while two others have been recalled by voters.”[71] Nonetheless, failure to use formality, and even a relative rarity of pressured resignations, may bring minimal loss in less lofty governmental environs than the presidency. Bad leaders leave, either early or on schedule, and normality returns—whatever counts as normal for a governor in the state. Practicality really delivers the answer—practicality is practical, sometimes. States do not generally want for historical records, at least in a degree of media coverage and perhaps court records, affirming the norms of governing.[72] There is sufficient news coverage to leave some document of the reality: a leader committed known wrongs and was forced out of office as the remedy, or the state waited out a scheduled departure. The accountability was sufficiently public to confirm certain behavioral boundaries and to hint at the norms with wide support. The kinds of wrongdoing by a governor are often from a limited menu of temptation and corruption. The failure to make a formal record is of less import than in the case of a President whose acolytes seize room in an incomplete formal record to “interpret history as they wish it to be.”[73] The pattern becomes one of occasional gubernatorial downfalls understood as commonplace human frailty and disgrace, with little long-term significance to friend or foe.[74] The stakes are not of presidential heft.
2. Impeachment Tennessee Style: Improvising a Coup and Calling It Constitutional, and Maybe It Is?
Imagine that the relevant political “establishment” agrees on a need to eject a governor of one of the states in the United States. For example, consider an emergency so severe a governor poses an immediate danger to public safety. Suppose also there is not time to bring a criminal charge as well as no time before disaster to kickstart formal state processes for removal. Suppose the emergency is so severe that evasion will not relieve the immediate danger. If formal process cannot be effective to remove the danger posed by a person’s remaining in office another day, how could improvisation substitute for the limitations of formal design to deal with a corrupt and dangerous chief executive? The known practices, such as prosecution and plea bargain, require time. Moral suasion without the leverage of a threat carries little weight—indeed none. Open knowledge of dangerous wrongdoing is not sufficient to trigger criminal process in a posture to demand the bargain of resignation in exchange for leniency by a prosecutor with a charge ready to go. Such a fact pattern might seem to leave no recourse, except the obsolescent resort to assassination. And that recourse is no recourse. It is not moral. It is not practical. It is out of the question. It is not the culture in the United States today for removing a bad leader.[75]
As it happens, one American state experienced this precise problem. And the local political culture responded with an astonishing improvisation. With mere days left in his term, Governor Ray Blanton engaged in conduct that followed an earlier scandal over pardons granted in suspicious circumstances.[76] The pardon that got the attention of a bi-partisan Tennessee political establishment involved a Blanton supporter who had been found guilty of killing his ex-wife and a male companion. With reason to believe Blanton had a full ink pen ready to issue more pardons in his waning term, perhaps to include the assassin of Dr. Martin Luther King, local political actors improvised at warp speed. The result was “impeachment, Tennessee style.”[77] In rapid and creative consultation by Democratic leaders (Blanton was a Democrat) and with incoming Governor Lamar Alexander, a Republican, the “state fathers” turned to the Tennessee Constitution in what must have been an intensive constitutional seminar. There was no formal process within the body of the document for rapid fire impeachment process. Indeed, the Constitution was plain: “[t]he governor had the sole power of pardon,” and the only process for removal was impeachment, a tedious process not equal to the moment of existential crisis.[78] Formality might have seemed hopeless, but a drafting glitch buried in the constitution came to the rescue. Someone somehow recalled, or discovered, that the Tennessee constitution contained an ambiguity relating to the timing of gubernatorial transition.[79] Therein lay an opening for improvisation within the provisions for formal constitutional process. The day on which the new Governor, Lamar Alexander, could be sworn in by the officials whose action would be accepted as effective was simply made to come early. And so it was. The solution was, in its way, all but the kitchen sink: formal, improvisational, practical, and astonishing. And pretty good. Bad, dangerous, corrupt pardons stopped. Normal conduct by the Tennessee governor resumed. Blanton cried innocence, eventually suffered prosecution and prison, tried a comeback, and ended his life as a car dealer.[80]
For many years, the story lay in yellowing newspapers, pre-internet, and—though part of political lore—lacked a merited comprehensive account. Finally, Vanderbilt University Press published a book to do the event justice, and, in its way, to do democracy a larger justice. A book helped preserve knowledge about a dangerous leader and the extreme but sound solution of a political class acting with fortitude, speed, and imagination. In a foreword, journalist John L. Seigenthaler captured the importance to democratic memory of making a comprehensive record:
The individual stories of those government officials involved in the coup—each account unique, but all of them intersecting—were scattered like disconnected pieces of a jigsaw puzzle on the table of history until the author conceived this book. Perhaps because it happened so quickly, and without major disagreement, protest, or dissent, this truly historic moment has been buried in the public mind. In unearthing the drama in gripping detail, Keel Hunt assures that the ‘dark day’ will be remembered as a bright one in which conflicted politicians came together in the public interest.[81] Note the concern with preserving a public, definitive record of severe misconduct and the nature of the remedy.
At the presidential level, the mechanism left by the Framers as a formal process for protecting the nation from a demagogue and developing a deeper statement of constitutional norms for the nation’s chief executive arguably has not served national history as well. After January 6, 2021, the political class of the nation did not coalesce to take a decisive response comparable to the work done by the Tennessee political class. Though the vote came after the danger from the occupant of the office of President had subsided by the expiration of one President’s term of office and the inauguration of a successor, the danger represented by conduct—if left unrebuked and the author of it left eligible for return to office—had not abated. In fact, that danger was sufficiently appreciated that seven Senators of his party voted to convict Trump.[82]
Notably, the man who took office early in Tennessee to protect Tennessee from a dangerous use of the pardon power argued in 2021, as a retiring United States Senator who was elected in 2002, there was nothing for which he or his colleagues had a responsibility to make a record and establish a principle of constitutional weight.[83] A coup-ish solution to a crisis back home in Tennessee was one thing, but a constitutional process to make a permanent statement about constitutional bedrock was too much formal constitutional work at career’s end for a Tennessee gentleman. In some respects, the front end and the back end of Governor and later Senator Alexander’s career shows the appeal of improvisation, even extraordinary improvisation, and the dread of a formal process involving a “scar” on the President. Strike the King, kill the King, but do it in secret after sunset and write about it later?[84]
II. The Genius of the English Modus Vivendii: Form Without Formalism, and Cultural Management of Improvisation to Keep England Proper and Mainly Stable, and Leaders Accountable (Somewhat)?
English history contains a long-term story of forms of improvisation to keep leaders in check, along with pomp and circumstances to surround the monarchical heads of state with mystique. Even today, the coronation of King Charles III attracts wide interest and anticipation.[85] The touch of divinity clung to royalty until King Charles I attempted to invest it with a vitality that exceeded what British sentiment would accept in the seventeenth century.[86] As England gradually developed an understanding of the rights of English people as well as the representative component of freedom, ideas about accountability began to form.[87] Judges in England devised uses of impeachment to restrain officials acting in roles over which the King had ultimate oversight. Professor Frank O. Bowman III captures the evolutionary feature of English practice around monarchy and accountability. “Impeachment was invented and wielded by the British Parliament through centuries of difficult evolution from absolute monarchy toward the parliamentary democracy that was beginning to take shape in the 18th century.”[88] The English worked to combine loyalty to the King with checks on “the king’s human instruments.”[89]
A. Feeling Their Way: Early English Work Arounds When the King Was (Kind Of) Divine
Bowman introduces the idea of creativity by the English in a project fashioned to shape England’s “constitutional future.”[90] Creativity, with evolution, is improvisation with a loosely coordinated plan among disparate actors following an emerging tradition. Parliament slowly improvised, sometimes merely to remove a miscreant and sometimes to shape a constitutional vision.[91] This creativity may have laid the groundwork for further creativity that created a form of continuing improvisation, managed by English norms shaped to allow for accountability without too much of it coming from the “wrong” elements of society.[92]
During the period of English revival of impeachment as a tactic by Parliament to hold Kings in check by trying their functionaries, the King’s very person—his earthly embodiment as a human being—encountered something still disputed as to what to call it. It was not a workaround of impeaching the King’s functionaries but a direct seizure and trial of the King for treason. Was it a fair trial in a legitimate Parliament? Was it an illegal attack on one man’s rights and something far worse than either formal process or improvisation against a bad leader? Did the English people, or some part of them, take ideas about accountability and theories of the people’s rights too far?[93] How did improvisation work out in the long run, whatever one might conclude about what to call the short term and what to think of it?
B. King Charles I: Deference in Decline
In a breakdown of English deference to the King, a civil war in England resulted in the trial and execution of King Charles I in proceedings hastily devised by a Parliament that had been “improvised” into what was called the Rump Parliament.[94] Disagreement about the formal bona fides of the trial as credible formality and due process persist to this day.[95] Those who tried the King were in constant internal negotiation over the propriety of claiming formal authority to try him on charges of treason, and some of the group withdrew entirely from all association with the “regicides” as the process moved forward. The aftermath of his execution found him treated as a martyr in a widely popular set of writings called The Eikon Basilika: The Pourtraicture of His Sacred Majestie in His Solitudes and Suffering.[96] Richard Nixon never rose to the level of sanctification.[97] Charles gained a firm hold on martyrdom, though not his head, with his last words on the scaffold, “I go from a corruptible to an incorruptible crown: where no disturbance can be, no disturbance in the world.”[98]
As to the long term, a recent well received book argues that the episode was part of a seventeenth century in England of ferment, an emergence of a more widely shared literacy, new political classes claiming Parliament as their “institutional voice,” and “even . . . control over the royal succession.” In a sweeping interpretation, the author argues that the events of the seventeenth century, including the trial and execution of King Charles I and much ideological dispute set the stage for a world of new political voice and forms of experimentation and change. The source was the English capacity for improvisation around shared cultural instincts, one energized and given long life by the events of the seventeenth century.[99] In the words of an insightful review, “With the eclectic, wide-angle vision of the new social history, Healey shows that ideas and attitudes, rhetoric and revelations, rising from the ground up, can drive social transformation.”[100] These readings of the century, of which the King’s trial and execution was the showpiece, are consistent with the theory that improvisation can overcome formality and, in some instances, yield long term goods in excess of what strict adherence to formality can provide. Yet, neither formality nor improvisation guarantees sound results, in the short term or the long term. Formality tends toward stultification, and improvisers may or may not be in possession of the bona fides of necessity and wide support, or merely poseurs claiming a high democratic purpose against “a regime.”[101] Ambiguity cannot be banished, yet choices and assessments are ever present. Neither approach is a guarantee of sound results, and both can be used by imposters for causes without merit. But failures of formal process to address leadership emergencies leaves a role for invention.
C. King Edward VIII: Politics Overcomes Deference
Kings evolve, just as do the English people. The next King of England in line for trouble chose the wrong consort and scandalized the still proper English. He is thought to have enjoyed café society more than the dull days of kingly work. In the early twentieth century, to his good fortune, when Edward went astray from deep English norms in his intention to marry an American, twice-divorced woman, there was no thought of beheading him after trial. Rather, true political improvisation came to the rescue in meetings held by the King with the Prime Minister, Stanley Baldwin.[102] Informal pressure and wide consensus among the relevant “players” needed for the King to retain the cultural acceptance that they and Edward the besotted lover believed he needed to abdicate the throne.[103] Improvisation enabled the idea of monarchical stature and continuity to be protected. The cultural memory became a King’s decision to abdicate in favor of marriage to “the woman I love,” and not of formal process that might “scar” the monarchy for all time. The departure of the King became a story of sentiment’s hold on a royal’s heart in preference to wearing a worldly crown. No bloodshed was needed. To wit, “The King has abdicated and left London for Paris and marriage to Wallis Simpson. God save the King.”
D. Prime Minister and Parliament as Democratic
In Parliament today, a ministry can be undermined by the failure of the House to support important policies or acts of the ministry. The meaning given to particular defeats can be subtle and determined by the importance of the policy, the significance attached to a given vote by those acting in opposition, and the persistence of parliamentary rejections of ministry actions. But when the question is clearly engaged in a manner that communicates a loss of confidence, the results are decisive. The leader resigns.[104]
The parliamentary vote of no confidence is a story of English improvisation within a culture of formal ceremony and deference to leaders but underlying capacity for innovation in support of democratic values of representation and accountability. It did not arise as a formal rule proposed and enacted as a parliamentary regulated process. Rather, members of Parliament devised it against opposition from those in Parliament and supportive of authority as top down in the person of a monarch. Notably, at one time in the evolution of Parliament as a body representative of the English people, the Prime Minister was closely aligned with the King and as such referred to in usage as the King’s First Minister.
For that reason, if members of Parliament developed a process by which the body could force the ouster of the Prime Minister, it would have significance for the deference due to the King as sovereign, and for the progress of Parliament towards functioning as a democratic institution as well as a governing body.[105] First referred to as Sandys’ motion,[106] the practice was improvised in 1741. The then King of England, George II, viewed the leader in Parliament as his representative. He, and those supportive of monarchical authority, considered efforts in Parliament to oust the leader as a near treasonous affront to Kingly prerogative.
E. Literary Improvisation
At the time, laws forbade printing of a transcription of debates in Parliament. To fill that gap, English literary improvisation came to the rescue in the person of Dr. Samuel Johnson. Dr. Samuel Johnson prepared and published, in two issues of the Gentleman’s Quarterly, debates about a no confidence motion in “Lilliput” that used names devised for recognizable figures and made arguments like those that were in circulation about the novel suggestion of a request that the King no longer take advice from Walpole. (As noted above, the arguments against such a demand were like those in the recurring yet repeatedly improvised-on-the-spot script in today’s response to no-confidence votes. Improvisation produces repetition in new times and places). Votes of no confidence thus began in improvisation against a claim of top-down monarchical authority, exercised through a parliamentary leader. Over time, it evolved into a quasi-formal understanding that functions in a constrained and relatively predictable manner within the practice in England of observing unwritten constitutional traditions.[107]
F. Convention Guides But is Not a Formal Rule
Thus, by 1892, the motion of no confidence was an accepted part of parliamentary government in Great Britain.[108] The Todd & Walpole volume on parliamentary government in England referred to the House of Commons as “constitutionally competent” to make a statement of “partial disapprobation” of the ministry or a “general want of confidence” in the overall conduct of the administration.[109] The need to affirm that Parliament members could control their leadership reveals the overhang of traditional monarchical prerogative and the ability of the English culture to adjust practical understandings without formal constitutional action. The object of a “direct vote of want of confidence”[110] was understood as a deficient leadership, with the deficiency assigned implicitly to the personal features of the leaders—a factor in group dynamics that does not readily reduce to a formal rule. It was “a procedure for the removal of an obnoxious or an incapable ministry.”[111]
Its special characteristic, within the constitutional understanding, was that “the House declares that it has no confidence in an administration, without assigning the reasons for such declaration.”[112] No need for a reason is at least one essence of improvisation with a kernel of democratic meaning. It was clear by 1892 that the lack of reason for the vote was a critical distinction compared with other means of terminating an officer. Expelling a leader without a reason was a strong medicine, but it was one part of the constitutional arrangement. Lack of confidence, as a matter of linguistic logic, does not require a stated reason. Once announced by a body with the claim on voice comparable to the House of Commons, it is a fact that cannot be disputed. By comparison, a child’s vote of no confidence in a parent carries little weight, if any. Of course, one source of dispute about the modern vote of no confidence in universities and non-profit groups is the claim on voice by the group, and the nature of hierarchical authority asserted in opposition to group voice.
Nonetheless, in a further example of the English genius for improvising without imposing formal process, expulsion without a reason was understood to be reserved for only extraordinary necessity, or, in the words of the treatise, “for great occasions.”[113] The discipline on its overly casual use was the responsibility for dissolving Parliament and the possible obligation to help form a new ministry, at the request of the sovereign.[114] There was also the risk that the ministry might survive a defeat, if the opposition were unable to form a government; the result would be damage to the position of the opposition.[115]
To summarize, the legitimacy of the procedure became established and so reported in the late nineteenth century. At first the claim that a minister acting for the sovereign no longer enjoyed de facto authority, because the House could withdraw it, was seen as an attack on the constitutional framework. The original theme, advanced by Robert Walpole, held that the authority of the sovereign required that the leader in Parliament chosen by him should be unquestioned, except if there were specific grounds of chargeable criminality.[116] Dr. Johnson’s report reveals the lines of argument in the parliamentary debate and memorializes the beginning analytic treatment of the function and forms taken in votes of no confidence.[117] It shows the recurring nature of the arguments about leadership within a setting that contains a cultural tinge of democratic norms yet harbors uncertainty about how hierarchy can co-exist with member or citizen power. In its nature, improvisation lacks the certainty of formal rules.
III. Improvising Formality: The Rump Parliament in England and the Grand Council of Italy
Historical analysis of two instances of leader removal through mechanisms formally part of the state governing apparatus and directly involved in removing the leader through those institutions of governing authority provide a glimpse at the use of formal positions by improvisation. Pressured resignation by outside pressures, as from a prosecutor or political figure, is outside this category of “improvising formality.” These two examples were discussed briefly above.
The first is the forced exit of Benito Mussolini from power in Italy. He was first made Prime Minister in purportedly normal, albeit novel and controversial, fashion by the King’s asking him to form a government. The King was Victor Emmanuel III, who became King on the assassination of his father, King Umberto.[118] Victor Emanuel III assumed the position reluctantly. Generally seen as retiring, the new King determined to avoid interfering in political life. Nonetheless, he became concerned about political instability in Italy.[119] Conveniently, Benito Mussolini was a member of Parliament. The circumstance that prompted the King’s action was a march on Rome that Mussolini was in the process of using to create an atmosphere of violence.[120] Over time, Mussolini transformed the position of Prime Minister into a near dictatorship by inserting himself at the top of a government that overtly incorporated his Fascist Party as part of the governing structure. One of the structures he created was called the Grand Council, which was inserted above Parliament as a kind of uber committee over Parliament.
A. Imprecision in the Formal Structure of the Italian Government
Of importance in understanding the constitutional provisions around which Italy was governed after its emergence as an independent state and then during Fascism is the examination of the constitutional monarchy of Italy.[121] The monarchy came into being out of a sense that it was needed as the glue required for a united Italy. The process creating the Italian monarchy was hasty in light of differences over the choice between democracy or constitutional monarchy.
Giuseppe Mazzini, whom historian Denis Smith calls “the greatest patriot of all” in the “Risorgimento,” which enabled Italy to form an independent nation, “would have much preferred the establishment of a democratic republic” rather than “a monarchist victory” but concluded that “a monarchical Italy was better than no Italy at all.”[122] The Constitution “was devised in a hurry” in 1848 for the small kingdom of Piedmont-Sardinia, and agreed to by the then King with reluctance. Simply “taken unchanged” in 1861 for the unified Italy, it drew on models from Belgium and France.
The result was “insufficient precision,”[123] a factor that in some respects doomed Italy to a period of formality ragged at the edges and subject to spontaneous variation concocted on the fly and under pressure. There was a tension between “residual powers of the monarchy and some limiting rules, as well as practical needs for a Parliament to function, such as a prime minister.[124] That ambiguity and comfort with ongoing adjustments to address perceived practical needs for law-making and other authoritative decisions by Parliament, yet joined to the residual powers of the King, set the stage for a normally passive King to take unexpected actions that have left him in historic disrepute as the “Fascist King.”[125] The King’s first action that undermined normal (non-Fascist) constitutional government occurred in 1922 when he overruled the unanimous cabinet and failed to sign a decree announcing martial law.[126] Again in 1922, when the King invited Mussolini to form a government, he acted against the unanimous advice of his ministers.[127] Further, Mussolini had the allegiance of “only 32 fascists out of over 500 deputies in Parliament and boasted of committing terrorist outrages.”[128]
The events surrounding the King’s actions turning the government over to a fascist Mussolini were, to some observers, “more like a royal coup d’etat.”[129] Historian Smith’s partly narrated and partly analytic account characterizing the King’s actions places emphasis on the unusual, solitary, guarded, and unpredictable, nature of the King’s behavior.[130] Yet given the “insufficient precision” of the Constitution, was the King’s sudden edict a claim on formal power or a desperate turn to improvisation, or was it a monarch’s coup d’etat?
Arguably, it was a bit of both, as had become an Italian habit in light of the constitutional irresolution at the beginning of the state. For years before the King’s sudden change of practice, the blurry edge between the formal and the made-up means that Italian ministers had “gradually shifted the balance of power in their own favour, so changing ‘constitutional’ into an approximation of ‘parliamentary’ government.”[131] The working practices thus arose because at the time the constitution was adopted, “a small group of enlightened politicians needed [constitutional monarchy] . . . to preserve national unity; . . . as a check on irresponsible monarchist action; . . . as a barrier against republicanism and the minority of radical democrats in parliament.”[132] With the King’s action, improvisation and enlightenment parted ways and moved into a world in which working understandings had little to offer as a guide to legitimate process, however embedded in the formal law or makeshift usual practices of Italy, before and then during the Fascist period.
B. How They Did It: Removing and Arresting Mussolini
Christopher Hibbert provides a readable source for the story of Mussolini’s removal from power and subsequent arrest and confinement.[133] First, King Victor Emmanuel formed tentative plans for arresting Mussolini, thought with concern about “unmanageable opposition . . . from Mussolini’s supporters.”[134] This time, after having acted without support to name Mussolini prime minister, the King delayed taking action on his own in order to allow for action by the Grand Council by vote of no confidence. As those planning the vote to remove Mussolini at a meeting of the Grand Council met to anticipate the aftermath of the vote, they shared nervousness about what measures to take to prevent Mussolini from organizing forces to regain power and to take revenge on those who would vote to oust him at the meeting. They agreed on a sense that if he resisted being removed from office “we’ll have to arrest him.”[135] They also agreed to the importance of a written order from the King for Mussolini’s arrest. The desire for a written order from the King, who would not hold such powers in a typical parliamentary democracy, demonstrates a grasping for formal process as a garb in which to clothe improvisational actions combining traces of formal authority from remnants of the democratic institutions available at hand, as well as the residual monarchical claim on a legitimate role. It was a cobbling together of the previous practice of a mixed monarchial and parliamentary arrangement. After a visit with Mussolini and upon seeing a field marshal awaiting a meeting with Il Duce, one of the plotters asked for “two hundred police to be hidden in different parts of the building” where the Grand Council would meet.[136] Though state power can be thought to arise from the control of fire power, it is not part of regular constitutional process to anticipate a need for opposing armaments stationed near the official setting for decision. Indeed, the proximity of the “constitutional” process for removing Il Duce from power to violence is apparent in the later musing by one plotter to the effect that “a sudden colpo di stato” would have been better.[137] “Though the words were not uttered, the Duce was under arrest and was hurried away with an armed escort . . .”[138]
C. Did the Grand Council Have Authority to Vote to Oust Il Duce
The tradition of the no confidence vote in a Parliament is of an action by the whole body, and in many such bodies, a vote of no confidence is understood to require that the losing target and their government resign. Thus, whatever one might view as the constitutional status of the Grand Council, the vote by its members was an imperfect fit for the tradition of votes of no confidence. Hence, the vote arguably resembles such a vote by the professional staff of a nonprofit institution or the faculty of a university.[139] In effect, the Grand Council itself was an improvised body with a debatable claim on constitutional standing, primarily created to consult with “Il Duce.” The use by its members of that presumed formal inclusion in Italy’s constitutional structure to vote no confidence in Mussolini was an improvisation on top of a structure successfully inserted by Il Duce into the formal process of government. As noted above, it lacked the authority to remove Mussolini directly but was able to use its formal standing in the government as a mechanism to create a symbolic demand for Mussolini’s removal.[140] The improvisation around formal bodies also involved the plotting that improvisation can require. The King had foreknowledge of the plan and had concluded it was time to remove Mussolini, whom he believed had become more dangerous to Italy in power than he had been when the King feared him as the leader of a violent faction.[141] The King had mastered improvisation.
The second example of “improvising formality” is the trial and execution of King Charles I. If I may be indulged, one means I took of assessing the legality of the trial under fully formal rules was to do ChatGPT queries asking whether King Charles I received due process before he was adjudged guilty of treason and executed and whether the Rump Parliament that set up the trial body was a legitimate legislature. It is beyond the scope of this Article to go through all the arguments and counter arguments, but notably all answers generated by ChatGPT generate conclusions of ‘it’s debatable.’ Likewise, ChatGPT also provides answers concluding with some version of, “you decide” in connection with the removal of Mussolini.[142] The complication in Italy between clear legal authority and the improvisation most associated with violence and lack of a legal basis is well expressed in a review of a recent book about Mussolini’s daughter, Edda. The reviewer writes, “Technically the council was a consultative body and its vote was entirely legal, but it was a coup nonetheless.”[143]
IV. A Special Complication: Leaders’ Efforts to Evade Term Limits
Indeed, further complicating the picture, rulers also find ways to improvise and to defeat formal rules, such as a constitutional limit on service. One tactic used by an energized people who believe there's a problem of leadership that becomes autocratic, and/or corrupt, is term limits. In the United States, a sufficient consensus that Franklin Roosevelt’s election to four terms was excessive brought about the adoption of the Twenty-Second Amendment to the United States Constitution establishing constitutional limits on presidential service.[144]
Such alterations of the formal rules are intended to become permanent solutions to the problem of leaders seeking permanent rule. Yet leaders have their own ideas of improvisation. A review of both successful and unsuccessful attempt by leaders to evade term limits recently found that efforts at evasion are common.[145] Tactics vary and success is not assured, with about one-third failing.[146] The striking conclusion of the study, shown below, is consistent with a view that wide citizen engagement in support of a given work-around for removing a leader is recognizable and a source of its bona fides. From the opposite angle—blocking improvisation by a leader attempting to remain in office past term limits—citizens are the guardians of democratic regularity. The study authors write of the failed attempts by leaders to evade term limits:
Importantly, in the vast majority of these cases, they failed because the attempt encountered widespread popular resistance. By contrast, courts were mostly ineffectual in halting evasion attempts. This finding contradicts much of the existing literature on this subject, which has emphasized the potential role that courts can play in enforcing term limits, and thus in safeguarding states against democratic erosion. If anything, our survey reveals that courts mostly do the opposite: validate the president’s attempt to remain past his term. For those who seek to enforce constitutional term limits, this finding implies that building broad resistance movements might be more effective than putting faith in courts.[147]
We see then that the capacity of leaders to turn to improvisation to avoid abiding by formal checks on their maintaining power for long periods does not delegitimize the ultimate genius expressed by citizens or other elites who gather forces to demand and achieve a leader’s exit from power and office. Rather, “broad resistance” works as a validation of citizen engagement against bad leaders’ remaining in through their term of office, or their attempted entrenchment past term limits or defeat for election. Neither formality nor the adoption of improvisation by leaders intent on unchecked power forecloses a need for creativity and innovation drawing on wide consensus to forge a replacement for prescribed leader-removal processes that have fallen into disuse from distortion of their meaning or simple loss of will.[148] The example of how citizens’ creativity is the backstop—nor formal court guardianship—to undo overreach by leaders who defy a formal rule intended to prevent entrenchment is a useful example of the function of workarounds when formal rules fail.
V. Pre-Conclusion Summation: The Problem of Impeachment Anxiety in the United States and the Most Recent Former President
Formality in a written constitution, as with presidential impeachment in the United States, may block the improvisational path available in the absence of such formality, yet constitutional interpretation of the meaning of a phrase such as “high crimes and misdemeanors” arguably impound a license, and a duty, of generational improvisation. As behavioral boundaries evolve and underlying political norms about permissible boundary transgressions respond, improvisation becomes the mandate of political judgment awarded and even assigned by the Constitution.[149] Yet the place of the President as head of state, and the formal written constitutional format of the congressional authority, has led to a conceptual and practical block against the application of judgment based on the expectations of the Framers that political judgment would be available.
I have theorized in this Article that there is deep dread of formal acknowledgment by a Senate conviction and removal of President on the conclusion that the American people elected an unfit person as President.[150] I have posed the question to classes and others of why Republicans, who claimed to be prepared to convict and remove Richard Nixon as President, preferred to advise him to resign. A resignation is not a constitutional removal, and we have no story of enforcing our constitutional safeguard against “demagogues and tyrants.” Why do we not?
Typically, the answer is practicality: why have a process that can be avoided if we know the outcome beforehand? Yet the unwillingness to make the formal final historic congressional statement that a President committed deep wrongs to the nation that mandated removal is, in my view, a constitutional loss of nerve and a confirmation that formal process directed at a head of state—the American head of state—is a weak protection.[151] Further evidence of a general reluctance to rule a top leader unfit is that formal processes for recall or removal of governors or other state officials generally lie idle, while forms of improvisation in the form of prosecutions and plea agreements do lead to resignations.[152] The loss by failure to use formality may be minimal in less lofty governmental environs. Bad leaders leave and normality returns.
Practicality really is the answer where the stakes seem low. States do not generally want for historical records affirming the norms of governing. There is sufficient news coverage to leave some document of the reality: a leader committed known wrongs and was forced out of office as the remedy. The accountability was sufficiently public to confirm certain behavioral boundaries and to hint at the norms with wide support. As I was writing an earlier version of this Article, the improvisational solution to a perceived constitutional failure of the formal process to convict and remove, let alone bar, President (now former President) Trump for “high crimes and misdemeanors” began with the first of several prosecutions. At this point, they are a post-hoc substitute for what a conviction and removal might have achieved to end the saga of Trump as a dominating figure by ending his presidency and thereby making formal the existence of the “guard rails” against behavior violative of the “public trust.”[153] Now, strangely, such prosecutions were contemplated by the Framers as the kind of continuing exposure a President would have after impeachment, conviction, and removal from office. Article I, Section 3, Clause 7 of the Constitution states:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law. That exposure by the one President forced from office was preempted by a presidential pardon when President Ford concluded that the nation could not handle the spectacle and division a criminal trial of a former President would present.[154]
Today, there is no political avenue to prevent prosecution of a twice impeached but never convicted President. At least two state prosecutors are presented with evidence of criminal wrongdoing by the former President in their jurisdiction and have, depending on one’s view of prosecution, either the duty to file criminal charges in light of known evidence of conduct in their state or, in the alternative, the discretion to proceed on their own judgment and view of the prudent exercise of prosecutorial power.[155] No new administration in Washington would have the power to issue preemptive pardons, though a new administration could end federal criminal prosecution of the former President. Hence, improvisation as retrospective constitutional guardianship seems set for a rigorous test in the years to come. The use of criminal prosecution is partly driven by the failure of the second Trump impeachment, which occurred on January 13, 2021, only one week before he was scheduled to leave office.[156] The trial in the Senate occurred after President Biden had assumed office.[157] The nature of the offense charged—incitement of insurrection—provided support, if he were convicted, to bar him from holding future office.[158] Although a majority of the Senate voted to convict, there was not the supermajority required for a conviction. Thus, Trump remained free to run for office and is doing so, with much interpretation arguing that his purpose is to escape criminality liability.[159] The result of the sequence—escape from conviction and disqualification from office and criminal indictments, both state and federal, with more predicted, has brought about the spectacle of a presidential campaign, at least partly launched as a form of defense against imprisonment.[160] The urgency many have expressed over the need of criminal enforcement is partly driven by the former President’s escape from impeachment conviction that would have disqualified him from “any office of honor, trust or profit under the United States.” There is no past script to suggest whether the pending prosecutions are mainly a substitute for the failure of conviction in the Senate or an expression of the oft-stated principle that “no one is above the law.”[161]
Preliminary evidence of post-hoc use of the criminal law to substitute for formal processes that would have ended the saga of an American figure of uniquely divisive and disruptive capacity is not encouraging in terms of filling a gap in the articulation and advancement of constitutional standards of conduct by an American President. It is not possible to continue updating this Essay to assess the outcome in terms of perfecting the constitutional order that has seemed under deep strain in recent years. Time will reveal the constitutional work that post-hoc criminal process can do, or not, to strengthen ideas of accountability and protection from dangerous political figures that the Framers hoped the presidential impeachment provisions would provide. The jury is out; indeed, many juries await their turn at constitutional extemporization.
VI. Conclusion: The Habits of Freedom
A recent book about the role of the “deep state” in saving the nation from reckless conduct by former President Trump concludes with an insight on the nature of the protections afforded, or not, by the formal protections thought to be embedded in the Constitution.[162] Congressman Jamie Raskin, formerly a professor of constitutional law, has argued that checks and balances is not a deep concept within the Constitution.[163] That is, the check on misuse of government power is not about institutions blocking one another. Critically, “in a democratic society people are the check and the balance—the idea of a civic equality and each person having a voice in government.”[164]
The dispersion of power among citizens who recognize a duty to democratic institutions creates protection (some) against the failures of formal design.[165] Within the premises of constitutional formality, the people improvise. Formality fails to follow a neat path to cleansing the political process of risk and corruption, but creativity by citizens in many roles fills the gap (some). That gap-filling process does not replace all that a robust adherence to formal cleansing would provide. The rules are not crisp at the edges, and public understanding of what is good and what is bad falters. Wrongdoers endure some degree of public dishonor, and their bad deeds are prevented or softened while the record of their wrongdoing remains clouded. The failure of formality prevents the construction of sturdier constitutional precepts that demark limits on the use of power. Yet the spirit of democracy survives in the dispersion of fealty to democracy among persons located at pressure points that allow for checks on abuse by officials, even the President.
“Belief in constitutional democracy itself is the sustaining ethos.”[166] The formal Constitution is a plan for normal operation, but in the absence of specifics about rules of behavior among those responsible to execute formal design, volunteers for a role as protectors assume responsibility to check violations of deeply shared understandings about power. Improvisation thus becomes, and did in truth become, a critical path to protecting both institutions and the nation from an authoritarian leader. Yet in these confrontations, bad leaders twist the formal rules to claim to be acting within their powers in the public interest, while those seeking a remedy proceed under the banner and the inspiration of democratic, rule-of-law commitments. Pressured improvised exits do no more, when they occur, than end the power of the bad leader to act under false claims about the formal role. Removal ends the immediate problem but leaves a limited legacy.
Those who improvise at the level of presidential misconduct rely on the values embedded in the constitutional and cultural commitments to democracy and to formal lines of authority, but they understand that formal process is often weak when the threat is high. If formal lines are failing in the unalloyed form embedded in written allocations of power, improvisation comes to the fore. The Select Committee[167] was a form of improvisation using formal offices but innovating to expose bad conduct by the former President during his term of office and to attempt, using tactics borrowed from experts on production of “content” and narrative, to leave a record supported by the formal role in a congressional committee structure and made vivid by innovative presentation. Improvisers innovate within a system of law and proceed in gray areas where the authority is limited but there is a forum for their voice, their commitment to their role responsibility, and their oath to the nation. They creatively supplement formality when it fails, as it is prone to do. Political actors combine formal station with the instincts of the average person to fulfill the duty of citizens to activate democratic voice as insistence on accountability.
Besides the work of persons in the Trump administration—some political appointees and some employees of departments members of Congress thus played a role with improvisational elements. Both author Rothkopf and one Congressman recognized how improvisation was folded into the use of formal powers. For example, Representative Ted Lieu described the congressional power of impeachment as a form of improvisation for the purpose of communicating to the citizenry knowledge that would not normally penetrate the overload of information that blocks intensive awareness by citizens of serious presidential misbehavior.[168] Though it was not possible to achieve conviction, the impeachment power served a function that was a hybrid of formality and improvisation.[169] It sent a message to Americans who were not attentive to politics but who came to understand from the use of the impeachment power, even without a conviction, that United States democracy was under stress. That message created public recognition within the meaning of Abraham Lincoln's statement about public sentiment. “With it nothing can fail, without it, nothing can succeed.”[170]
Sentiment, if not crushed in the many settings today where citizens directly confront claims of power, is a pervasive element of democratic ethos. In Russia today, that sentiment is fragile and of uncertain weight.[171] Silence is safety, no matter the provocation.[172] In a still vibrant nation committed to democracy and freedom of conscience, each individual has some role in many settings to protect the element of those values and commitments that are placed at risk or under stress. Each person has some ability to improvise and to calculate methods by which to protect the entire body politic. From top to bottom, from the presidency to the many non-profit institutions with missions to serve the public, citizen courage, commitment, and imagination are all key protections of American democracy.[173] The assignment to the citizen’s voice and judgment, wherever they find themselves and whenever they see democratic principles at risk, is the core role assignment in a system apportioning power to the people of the nation.[174]
Creativity and fortitude pair with democracy in this understanding of improvisational protections against abusive deployment of raw power. Citizens informed by a democratic ethos and an understanding of their many pledges as citizens supplement the blockages against robust use of formal process at the highest level of government and in the training grounds of day-to-day venues for a shared culture. Further, such commitments and characteristics are at odds with a social impulse to personalize organizational loyalty as something owed to the leader rather than to the norms of the organization or the values to which the American political system aspires. The moral and ethical error is basic even if culturally powerful.[175]
Improvisation is thus a necessary supplement to formal procedures. Neither formality nor methods devised for the moment of danger is guaranteed to produce a sound result. In many circumstances improvisation may predominate and produce long term innovation and change. It also is a check, when emanating from a widely shared “public sentiment” on undue deference and loyalty a leader by courtiers or a political class fearful of making a formal rebuke of a leader such as the American President. Improvisation in the place of full deployment of formal processes can produce a long-term failure by a governing system to produce normative authoritative statements about a constitutional framework or simple corrupt behavior by the executive.
Is there an ideal mixture? There is no abstract answer but rather assessments in the short term of necessity, with evaluations and debates over the long term about what might have been. Thus improvisation is neither inherently unsound nor illegitimate. Formality lends a sense of order and propriety in a system grounded in law. Yet it can also perpetuate danger and dysfunction by manipulation and atrophy. Improvisation can solve a short-term problem, sometimes lead to long-term creativity and change, and, in other instances, perpetuate failures in norm enforcement and articulation. Systems function with some portion of each, with no prescribed recipe for measurement.
Political bodies may become paralyzed, for an array of reasons such as unwillingness to overcome the deference they believe one owes to a leader to whom formal process has awarded great power or the raw fear of a ruthless leader’s retaliation against the open processes required for legal removal proceedings. The formal processes may have been rendered empty by the intrusion into the structure of governing by the leader’s courtiers or outside forces (sometimes a camarilla[176]) with financial or other power. Cliché may overcome constitutional provisions for removal: “You must not undo an election.”[177]
Once again, even though bad leaders can improvise, the legitimacy of top-down substitution of “fake” formal law for the genuine article has a shelf life ultimately limited by the incapacity of the ruler to maintain the façade that inventions of his inner circle are valid rules of the game. That capacity often will meet an engaged citizenry with a superior capacity to claim a legitimate say in preserving the health and vitality of a nation’s core commitment to a constitutional order. The failures of formality, in whatever guise, need not be the last word on the destiny of a nation in possession of a democratic culture and blessed with a population prepared to defend it.
VII. The Dread Continues: Editor’s Introduction to the Postscript**
Professor Kuykendall has posed several timely and novel questions: how do American politicians remove bad leaders, why is it typically through informal improvisation, and what is the effect of that? Currently, those hypotheses are being put into the perfect—yet harrowing—modern experiment through calls to disqualify Former President Trump from ballots by invoking an oft-forgotten constitutional clause. Some scholars are saying that the Fourteenth Amendment, Section Three, explicitly bars the former President from office due to his activity inciting insurrection.[178]
Professors William Baude and Michael Stokes Paulsen came out swinging, arguing that this clause poses a duty on any officials to not place Trump’s name on any ballots.[179] But some of those officials that Baude and Paulsen call to action, for example Michigan Secretary of State Jocelyn Benson, have openly stated that it should not be up to them but rather the courts’ decision.[180] And thus, several court cases have begun.[181] Professor Kuykendall having her say: They have done more than begun. They have provided responses that are intriguingly supportive of my thesis in this Article. To be continued in the forthcoming piece our editor describes below.
As demonstrated in this Article, the United States has historically been unable to handle formal removals of Presidents. Professor Kuykendall having her say: I agree it has been demonstrated. Why would American officials keep avoiding it? Professor Kuykendall having her say: A condition diagnosed as Constitutional Dread? Would applying an overlooked, Reconstruction Era clause create absolute chaos in our divided society? Would it bring about a terminal case of Constitutional Dread, a psychological state leading to a general collapse of the nation’s hold on constitutional sanity? The United States has skirted formal procedures for removing Presidents every other time, giving solemn and high-minded sounding officials reason to do it again. Professor Kuykendall says: Yes, there has been an outbreak of solemnity such as we rarely are privileged to behold. More to come in the promised next entry in what will be only a short series on what our national nerves can handle. How much solemnity can we handle, and will it help us?
As Professor Kuykendall began to read the writing on the wall for the constitutional clause, being that pesky editor, I urged her to write a continuation of this piece. Why bury such a timely application of this Article’s thesis? This Article’s premise is not complicated, but the presently proposed application is challenging in today’s climate. Yet, has the political temperature ever been more well suited to this cold plunge? “Read your crystal ball for us,” I begged Professor Kuykendall, “what is happening?”
Please, follow up with this Article’s Postscript: Constitutional Dread, Meet Fourteenth Amendment, Section Three: Halloween Funhouse or the Rule of Law? The sudden entry of the Fourteenth Amendment, Section Three, into our political and constitutional discourse has thrown us into a high-speed collision between an apparent formal rule mandating disqualification of a twice-impeached, four-times indicted former President on the verge of nomination by his party for return to the presidency and our American unease with and resulting evasion of any such constitutional provision forbidding future service by a (present or) former high political executive. The discussion and analysis of aspiration and angst in courts, magazines, newspaper editorials, podcasts, social media, and any place citizens gather for civil and plenty of fraught and sometimes, Professor Kuykendall argues, overwrought debate will be published here soon on the Michigan State Law Review’s Online Forum.[182]
Footnotes
*Mae Kuykendall, Professor of Law, Michigan State University College of Law. I’m grateful to the MSU Law Review for asking me to contribute a piece to the Forum and then for tolerating my asking them to edit a longer piece than usual for me to develop thoughts about my long-term interest in How Leaders Come and Go. As I mentioned in the piece itself, my students in a seminar called Leadership Transition have also tolerated my interest in the subject as I have explored “forced leader exit” over time. For this piece I’m particularly grateful to Professor Hildur Hanna, librarian par excellence, who provides moral support and editorial intelligence on a regular basis. I also wish thank Elizabeth Karen Reinhart, a friend that I made on Facebook, which goes to show that Facebook has value. She has carefully proofed it more than once and given me important feedback on thoughts that needed better development and expression. I am deeply grateful. Professor Brian Kalt is good about alerting me to scholarship I must consider, though any gaps in important “but sees” is my responsibility alone. Finally, I’m grateful to all the writers of books who have helped to educate me about certain other nations, as well as our own, and their sometimes-bad leaders. I hope their books are never suppressed because all of them are important, even if they contain differing perspectives and views.
[1] My interest in votes of no confidence arose from my direct experience in a vote of confidence against the Dean of the Law School in 2006. I had listened to my colleagues recount their experience in the late 1980s with such a vote against then Dean of Detroit College of Law along with lingering trauma from the response they faced from the Board of the Law College. Before the third vote of no confidence in which I had a direct involvement, one had occurred without great conflict because, despite displeasure at the governing bodies of the time (the MSU President and the still independent Board of Trustees), the Dean departed without rancor and with a personal sense of grace and humility. The one that sparked my continuing interest created long-lasting tension and effects that are discussed as one case study, among three others, in a book draft for Cambridge University Press.
[2] Two books provide novel coup analysis. Edward N. Luttwak, Coup d'État: A Practical Handbook (1968) (cynical how-to account of coups in nations that lack a mass democratic culture); Samuel E. Finer, The Man on Horseback: The Role of the Military in Politics (2002) (balanced treatment of role military might play in a healthy democracy, with chapters on their political strengths and on their political weaknesses for a role in governance). A recent book attempts to argue why a military coup can help restore democratic rule but the book has not attained the stature of the two older treatments of coups. Ozan Varol, Paperback The Democratic Coup d'État (2017). One student explored Varol’s idea of a democratic coup. Presler Maxius, Democratic Coup D’état: Oxymoronic Name, Accurate Description (unpublished student paper) (on file with Author) (arguing that, “A coup d’état is no one’s first choice, but the truth is that a coup d’état can be democratic.”). The defense of democracy from dictatorial regimes thus commands cautious support of a tactic more commonly associated with authoritarian rule. If nothing else, theoretical interest in a military coup as a source of democratic recovery illustrates the strength of the search for a solution to problems of dangerous or oppressive leaders.
[3] King Charles I claims pride of place in a story of misfortune, to wit, his exit by virtue of playing a losing hand (and losing his head as well) to a population aroused by a congeries of “beefs” about religion, taxes, the rights of Parliament to a share in power, war-making by a monarch, and control over land. See infra text accompanying notes 94–101. The issues and the players were sufficiently complex that treatments differ to this day on what exactly happened. The short story is that a war between the King and an army attached to Parliament went a little farther than most English may have had in mind. Most accounts agree that the King was politically maladroit. The final act in a complicated story was the trial by a “rump” Parliament of a King in a trial of dubious process in a body of questionable standing. The “regicides,” meaning those who presided in the trial and signed the death warrant of the King, claimed the right of the English people to impose death for the crime of treason, for which the King was adjudicated by them as guilty. A good readable narrative account of the conflict and its resolution in the beheading of the King is Charles Spencer, Killers of the King: The Men Who Dared to Execute Charles I (2014). No treatment is definitive, however. Spencer worked to tell a tale but not to do a deep analysis of the forces that brought the King to trial and execution or the long-term significance of the episode to English law and politics. Historians seek to reach well-sourced archival analysis and interpretation of the meaning of the episode as a sociocultural account of English political development. See infra text accompanying notes 94–96. Lawyers seek an assessment of the authority of the body that tried the King, as well as an interpretation of how much due process the King received. Lawrence MacLachlan, The Trial of Charles I (1649), Famous Trials UMKC Law (2017), http://law2.umkc.edu/faculty/projects/ftrials/charlesIlinks.html.
[4] The most prominent case in the United States of a leader’s exit as part of a plea bargain with prosecutors is the forced exit of Vice President Spiro Agnew in 1973. Richard Cohen and Jules Witcover, The Investigation and Resignation of Vice President Spiro T. Agnew (1974). Spiro Agnew is buried with almost no fanfare, S. Coast Today, https://www.southcoasttoday.com/story/news/nation-world/1996/09/22/spiro-agnew-is-buried-with/50638728007/ (last updated Jan. 10, 2011) (describing funeral with “no ex-presidents and almost no news media coverage,” but with a 21-gun salute by a combined military honor guard).
[5] Benito Mussolini was ousted in a vote of no confidence by a group he had created called the Grand Council. In 1943, the King of Italy acted on the vote to relieve Mussolini of his position at the head of the Italian government. The no confidence motion could emanate from the Grand Council as the voice of Parliament, even though it only came into existence through actions taken by Mussolini. For an analysis of the authority of the Council in the processes of government in Italy as well as its formation, see Eloise Ellery, The Constitutional Status of the Fascist Grand Council, Current Hist. (1916-1940) Vol. 29, No. 5, Feb. 1929, 865–67. The Council was first a body of the National Fascist Party (1924) and later became a state body (1929). While it was generally seen to have the authority to recommend the removal of the Prime Minister (Mussolini), there was a sense that when it acted, it was only a recommendation to the King. The form of the Grandi's Order of the Day was a call to restore the normal functions of government, with the Fascist overlay. See generally Gianfranco Bianchi, 25 Luglio: crollo di un regime (U. Mursia 1989) (discussing the Grand Council’s role in a Fascist government); Paolo Nello, Un Fedele disubbidiente: Dino Grandi da Palazzo Chigi al 25 luglio (Il Mulino 1993) (stating the Grandi’s Order of the Day, which called to restore the government with Fascist oversights). For further discussion, see infra Part III.
[6] History and Use of the Recall in the U.S., Nat’l Conf. of State Legislatures, https://www.ncsl.org/elections-and-campaigns/recall-of-state-officials (last updated Sept. 15, 2021) (describing rarity of success of recall to remove governors but suggesting more success against local officials).
[7] Becky Little, 8 US Governors Who Were Impeached and Convicted: There have been 15 impeached governors in U.S. history, but only eight were convicted of their crimes, (Aug. 16, 2021), https://www.history.com/news/us-governors-impeached-convicted-left-office.
[8] One student wrote a paper arguing that in certain cultural/political settings, assassination is an accepted means of ending the reign of a bad leader. Sidra Alam, Recent Assassinations Around the World: An analysis of the causes and effects of assassinations in the United States, the Indian Subcontinent, and Africa (unpublished student paper) (on file with Author). According to Ms. Alam, “Fundamentally, though assassinations can be viewed as isolated acts perpetrated by lone wolves in the United States, in other parts of the world, assassinations can be expected as a reaction by the people who believe that their leader should not represent their country any longer.” Id.
[9] Jeremi Suri, Civil War by Other Means: America’s Long Unfinished Fight for Democracy 16 (2022).
[10] The schematic for the course is available on request.
[11] A nearly unavoidable early citation in an article suggesting that improvisation has advantages over formally embedded rules for forcing early exit of a political office holder (or other leader) is the statement of Alexis de Tocqueville that “[t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Alexis de Tocqueville, Democracy in America 99 (George Lawrence, trans., J.P. Mayer, ed., 1969). Lending support to the observation is the claim by Senators before an impeachment trial that they must avoid public commentary because they will be sitting as a jury. Ursula Parano, Senators cry “juror” to avoid impeachment questions, Axios (Oct. 28, 2019), https://www.axios.com/2019/10/28/senate-impeachment-jurors-jury-trump-trial. In truth, the role of the Senate in impeachment is that of active public citizens fulfilling a duty of deliberation and judgment through active participation as legislators charged with protecting the public trust. Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment (2018). The devolution of impeachment trials into legalized lawyer-driven debates positioning Senators as passive listeners/jurors fulfills the de Tocqueville observation but fails the design of the impeachment safeguard by eighteenth century statesmen.
[12] Bob Bauer, Donald Trump: A President’s Words Matter, Part II: Impeachment Standards and the Case of the Demagogue, Lawfare (Oct. 11, 2017), https://www.lawfareblog.com/presidents-words-matter-part-ii-impeachment-standards-and-case-demagogue (anticipating possible need to impeach Donald Trump for deception sufficiently serious to merit ouster without proof of a crime).
[13] H.R.J. Res. 370, 98th Cong. (1983).
[14] As is explained below, the common understanding in Congress was that Nixon would have faced impeachment and conviction had he remained in office. See infra text accompanying notes 46–50; Carroll Kirkpatrick, Nixon Resigns, Wa. Post (Aug. 9, 1974), https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm (describing Nixon’s announcement that he no longer had “a strong enough political base in the Congress” to continue in office and noting Nixon’s failure to acknowledge having committed impeachable offenses).
[15] U.S. Const. art. II, § 4.
[16] Brenda Wineapple, The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation 229 (2019) (describing Hamilton’s general logic in rejecting the need to predicate impeachment on an indictable offense).
[17] See infra text at notes 138–42 for a discussion of the complications of assessing the precise formal rules established by the Italian constitution at the time Italy became a unified independent nation (including the rules understood by elites during the period before Fascist rule) and at the later period during which the Fascist party had become a part of the ruling structure of the nation. It should be noted, however, that at the same time, the exit had a strong element of improvisation, albeit not without some reliance on interpretations of formal aspects of the Italian constitutional framework still considered to be intact under Fascist rule. See text infra notes 100 to 105 for a discussion of the process issues around the removal of Mussolini from power. R. J. B Bosworth, a major scholar on Mussolini, notes that the Grand Council actually passed a resolution “to restore military command to the King,” making it “unclear how many realized they were provoking his [Mussolini’s] fall and that of the Fascist regime.” R. J. B. Bosworth, Mussolini 324 (2010) [hereinafter Mussolini]. This kind of ambiguity adds improvisation on top on improvisation, as imperfect clarity in the action of the Grand Council became the makeshift basis for the ouster and arrest of Il
Duce.
[18] See Christopher Hibbert, Mussolini: The Rise and Fall Of Il Duce 166–67 and 190–91; infra text at notes 120–27.
[19] Though Mussolini was confined on Ponza for only ten days, the island has attracted tourism from the association with Italy’s Il Duce. Silvia Marchetti, Ponza: Beautiful island where Mussolini was held (Feb. 1, 2016), https://www.cnn.com/travel/article/ponza-italy-mussolini/index.html.
[20] See Mussolini, supra note 17. And see infra text at notes 130–38.
[21] These measures have been of limited utility. The first enactment was the Legge Scelba, or the Scelba Law, enacted in 1952 to forbid “apologias” for the Fascist regime. Two subsequent efforts were undertaken as a means of protecting Italy from a resurgence of fascist sentiment. In 1993, the Legge Mancino was passed to suppress the exaltation of fascism and to outlaw hate speech. A third effort was made in 2018 to crack down on fascist propaganda but the draft bill failed to pass both houses of Parliament and did not become law. For an account of why these efforts at censorship have lacked practical effect or consistent enforcement, see Paolo Heywood, Fascism Uncensored: Legalism and Neo-Fascist Pilgrimage in Predappio, Italy, Terraine (2019), https://journals.openedition.org/terrain/18955?lang=en.
[22] Remarks at the Funeral Service for President Richard Nixon in Yorba Linda, California, The Am. Presidency Project (Apr. 27, 1994) https://www.presidency.ucsb.edu/documents/remarks-the-funeral-service-for-president-richard-nixon-yorba-linda-california. See infra text at notes 28–32, 54–59.
[23] There are many descriptions of the executions for treason of Mussolini’s son-in-law, Count Galeazzo Ciano, and others who took part in the vote to oust Mussolini. The executions were carried out by the German puppet government with Mussolini as the nominal head of government. A roughly contemporaneous account was wired to Time Magazine. Italy: Death in the Morning, Time Mag. (July 10, 1944) https://content.time.com/time/subscriber/article/0,33009,791486,00.html (describing the trial of all nineteen members of the Grand Council who voted to oust Mussolini, with only six present and the subsequent execution of all but one of the five, with the refusal of Mussolini to intervene to save his daughter’s husband, despite her plea to him). The regicides suffered gruesome executions after monarchy was restored and placed in the hands of King Charles II. For an account of the gruesome fate of many of the regicides, see generally Charles Spencer, Killers of the King The Men Who Dared To Execute Charles I (2014) (describing the relentless search for the regicides by Charles II, with assassinations done outside England and gruesome executions, with hanging, drawing and quartering and extended suffering, of nine regicides as well as even impoverishment of the family of a deceased regicide).
[24] Tribe & Matz, supra note 11.
[25] See generally Michael Stokes Paulsen, To End A (Republican) Presidency, 132 Harv. L. Rev. 689 (2018) (arguing that original meaning imposes a duty to impeach and that the formal constitution imposes a duty that Congress has failed to fulfill because of underimpeachment and that the Tribe and Matz claims about the need for political judgment lacks coherence and is partisan in the manner of application by the authors to Clinton and Trump). Accord (of sorts) John Nichols, The Genius of Impeachment: The Founders’ Cure for Royalism (2006) (drawing on leftish populism and polemical style to advocate for impeachment of George W. Bush (for Iraq) and, for non-partisan bona fides, expressing approvals of calls in the past to impeach Harry Truman (for Nagasaki and Hiroshima)).
[26] Sheila Coronel, A Warning from the Philippines on How a Demagogue Can Haunt Politics for Decades, Wa. Post (Nov. 20, 2020), https://www.washingtonpost.com/opinions/2020/11/09/trump-ferdinand-marcos-philippines-lessons-democracy/; A book length study of “strongmen” provides a lengthy discussion of propaganda over time, with treatment of the uses of different mechanisms of communication over time. Ruth Ben-Ghiat, Strongmen: Mussolini to the Present 91–118 (2020) (analyzing the use of techniques by strongmen for the last 200 years “to instill fear and loyalty”). It is fair to note that efforts at persuasion cannot be entirely separated into appeals to rational discourse, profit-motivated marketing of products, and propaganda. See, e.g., Mussolini, supra note 17. In connection with demagogic leaders, however, the techniques are insistently directed at creating a cultish attachment to an individual leader on the basis of claims about the unique personal characteristics and capacity of the individual to bring meaning and order to the lives of the leader’s adherents. The hold of such cultish attachment can be broken, as if by the shattering of a spell. The day acceptance by the King of Mussolini’s resignation was announced in Rome, “Everyone, it seemed, had become anti-Fascist.” Hibbert, supra note 18, at 198. See also R.J.B. Bosworth, Mussolini’s Italy: Life Under the Fascist Dictatorship 1915-1945, 496 (2007) (“for a generation, propagandists had noisily preached the gospel of a new civic religion . . . envy fixing of a novel national and ideological code into every Italian soul, but at this moment of crisis the impact on popular belief was demonstrated to have been superficial . . . . Italians turned to their families in hometowns, to friends and patrons and to the Catholic Church, as though the dictatorship and its ideology had been but a bauble . . . . they behaved as the subjects of authoritarian regimes often behave: they were ready to bow to a dictator while he grasped the levers of power but felt free when the time was ripe to slough off his rule as a skin which never quite fitted and was never deemed likely to last.”) Yet the long hold of a demagogue cannot be dismissed, either. They return in life, and they remain specters after their deaths.
[27] Tom Porter, Liz Cheney said more Republicans would’ve voted to impeach Trump but were in fear for their lives, Bus. Insider (May 16, 2021), https://www.businessinsider.com/rep-cheney-says-gop-lawmakers-who-opposed-trump-feared-for-lives-2021-5. See also McKay Coppins,
What Mitt Romney Saw in the Senate, The Atlantic (Sept. 13, 2023) https://www.theatlantic.com/magazine/archive/2023/11/mitt-romney-retiring-senate-trump-mcconnell/675306/ (reporting the observation by Romney about fear by Senators during the second impeachment of Trump: “When one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.”).
[28] In connection with the first time Congress considered impeachment, in the Andrew Johnson matter, Wineapple makes a similar claim. “Impeaching a president implies that we make mistakes, grave ones, in electing and or appointing officials, and that these elected men and women might be not great but small . . . impeachment suggests dysfunction, uncertainty and discord.” Wineapple, supra note 16, at xxv. Wineapple suggests that Mark Twain viewed “Congress as a bunch of moral jellyfish.” Id. at 228. To be fastidious, I hereby note that Andrew Johnson, when impeached, had been elected only to the vice-presidential office but had had succeeded to the presidency. If Johnson was a grave mistake, it was one shared by President Lincoln and the voters. Wineapple’s phrasing captures the two implied failures: “a failure of government of the people to function, and of leaders to lead.” Id. at xxv.
[29] The Federalist No. 1 (Alexander Hamilton) (“History will teach us that . . . of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”).
[30] “The youth gets together his materials to build a bridge to the moon, or, perchance, a palace or temple on the earth, and, at length, the mid dle-aged man concludes to build a woodshed with them.” Henry David Thoreau, iThoreau: A Transcendental Day Book from The Journals of Henry David Thoreau 160 (2011).
[31] This essay does not attempt to address comparisons to other nations. A recent paper by my seminar student, Brittany Macaddino, provides a glimpse at the constitutional balance struck between a reverence for a head of state and reservation of an impeachment power allowing for possible removal. In Hungary, Article 31/A, Section 1 provides that, “(1) The person of the President of the Republic is inviolable; protection from criminal prosecution shall be granted by a separate law.” Yet the subsequent sections of the Article provide for a three-step process for impeachment of the President. First, a motion supported by 1/5 of the members of Parliament may propose that impeachment proceedings be initiated (if the President has violated the Constitution or any other law). Second, for impeachment proceedings to take place, two-thirds of the members of Parliament voting by secret ballot must vote in favor of going forward. Third, on a determination of the Constitutional Court that the law has been violated, the Court may remove the President. During the time of the impeachment proceedings, the President is disabled from performing actions as President. Today, the President of Hungary has succeeded in creating a form of authoritarian rule that enables him to place the workings of these formal processes substantially under his control, thus rendering this finely drawn attempt at creating a combination of protection for “the person” of the President and a design for removal that distributes the authority in a way that might partially protect it from partisan warfare little more than a form drained of substance. Hence, Hungary presents an interesting format for formality that might retain a prospect of actual use, but, even with careful design to blend respect for the person with a credible process for removal of the individual from office, loses vitality as a path for managing the dread of removing a leader in an office that symbolizes power embodied in a person. For a lesser leader, i.e., the Prime Minister, the Parliamentary practice allows for a vote of no confidence that prevails by a simple majority. For further discussion of both the constitution of Hungary and the authoritarian aspects of the political culture as of the time of the paper’s submission in Fall 2022, Brittany Macaddino, Is Viktor Orban Ripe for Removal? (Dec. 2022) (unpublished student Note), is available on request).
[32] See, e.g., Richard A. Posner, An Affair of State (1999).
[33] Joel H. Silbey, Storm Over Texas: Annexation Controversy and the Road to Civil War 23 (describing how, by means of evasion, politicians in the North and the South of the United States avoided facing deep regional conflict before Lincoln’s election).
[34] Id.
[35] In a different context, Professor Kyle C. Velte fashions an argument about postponement as precedent. She specifically suggests that the Masterpiece case created “social meaning” beneficial to the Religious Right as it avoided creating legal meaning yet succeeded in creating a gathering result hostile to anti-discrimination laws without making a formal legal pronouncement. Kyle C. Velte, Postponement as Precedent, 29 S. Cal. Rev. L. & Soc. Just. 1 (2019) (citing Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 1724–25 (2018)). One can gather the ideas of evasion and postponement into a blended view of how social meanings are managed by forms of improvisation to deal with heavily contested conflicts about a leader, similar to deep cultural differences that law can finesse in favor of one side, but without formal holdings. The short-term result may favor one side or another, and the long-term result may end in catastrophic final civil disorder created by the failure of formal settlement.
[36] President Lincoln based a part of his opposition to secession on a claim of what might be called methods of elite improvisation, in which an illegitimate movement succeeded in “coopting” Republican governmental power to enact secession in the absence of the popular support needed for legitimate formal action. See Peter Lindsay & Christopher Health Wellman, Lincoln On Secession, 29 Social Theory & Practice 113, 117 (2003), https://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1072&context=political_science_facpub (noting Lincoln’s view that votes involved elements of coercion and could not be representative of popular sentiment). See generally Williams J. Donnelly, Conspiracy or Popular Movement: The Historiography of Southern Support for Secession, 42 N.C. Hist. Rev. (1965) (providing a historiographical account of the progression over time from a debate foregrounding a claimed conspiracy of Southern politicians to secede using tactics to blunt popular input and hence without majority support to a later view that the Southern population supported secession to a more balanced view depicting a “lack of unanimous public opinion,” (at 77) with a mixture of unionist sentiment and willingness to tolerate secession as a last resort in protection of Southern rights, and concluding that in any event, paraphrasing James Russell Lowell on slavery, “the problem of secession remains slavery itself.” (at 84)). Hence, the general analytic approach has become to embrace as causation of secession an interpretive uncertainty between improvisation that bypassed legitimate democratic process but was not entirely opposed by Southerners, or the impact of Southern public opinion as enacted through legitimate representative formalities. Perhaps in this uncertainty, in which the result drives a reluctance to assign a bad result either to improvisation by an elite outside formally proper governmental processes or to the proper working, under republican principles, of the formal process for reaching a critical public policy choice, demonstrates the sort of anxiety that freezes formal political action in extreme conflicts about a leader. In this example, the result overwhelms the need to decide the merits on improvisation or formality, as neither could be seen as justifying the outcome. This example thus hints at an instrumental view of the relative strengths of the approaches—a good result can vindicate either, while neither can rescue a bad result. And the kind of anxiety that freezes the will and prevents action to formally convict and remove a president expresses itself in the adoption of studied nuance and ambiguity by historians over why something so dreadful as secession and war could have occurred. Failing to decide for sure leaves open the less judgmental answer, by comparison with elite plotting or formal public processes reflecting Southern preference, of “it happened.”
[37] Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis (Studies in Legal History) 2017 (arguing that the risk of adjudicating the constitutionality of the secession of the Confederate States in a treason trial of Jefferson David left the resolution created by military victory as the best available answer to constitutional issues that would be raised by such a trial).
[38] See generally Rachel Bade & Karoun Demirijian, Unchecked: The Untold Story Behind Congress's Botched Impeachments of Donald Trump (2022) (arguing that political timidity and electoral calculations disabled both political parties from achieving the conviction and removal of Donald Trump as President, as well as his conviction and disqualification from the office of President, thus leaving a dangerous demagogue able to mount a comeback and making toothless the critical power of impeachment assigned to Congress). Recent developments regarding former President Trump—before he was finally indicted in federal court—led to ruminations about the long-term impact of the Ford pardon granted to Richard Nixon. See, e.g., What Ford’s Pardon of Nixon Means (and Doesn’t Mean) for Trump, N.Y. Times (Feb. 20, 2023), https://www.nytimes.com/2023/02/20/opinion/ford-nixon-trump.html (suggesting that “the precedent Ford set seems to have paralyzed a half-century of prosecutors,” and further suggesting that the “precedent and Justice Department policy have left the United States with what seems an untenable situation — presidents are immune from prosecution in office and politically untouchable after leaving office.”).
[39] See Velte, supra note 35, at 2, 34, 39, 54 (noting that in Masterpiece Cakeshop, 138 S. Ct. 1719 (2018), the Court’s “postponement render[ed the] pro-LGBT social meaning [that’s been] created over the past two decades unstable and contingent” due to the fact that the Court postponed a merits decision regarding LGBT rights, which “create[d] social precedent–an ‘act, decision, or case that serves as a guide or justification for subsequent situations’ . . . [that] will serve as a guide and justification that may empower the Religious Right to continue its social and cultural battle against LGBT equality while it continues to pursue its not-yet-decided legal battle against that equality” because a “[p]ostponement allows the social meanings of stigma, inferiority, and ‘otherness’ to reattach to LGBT existence; meanings that the LGBT movement (and the Court) had been working to dismantle for many years”).
[40] 303 Creative LLC v. Elenis, 600 U.S. __ (2023) (adopting as law the implicit meaning of Masterpiece Cakeshop, 138 S. Ct. 1719 (2018)).
[41] The effort in the House of Representatives to push back on social meanings, created by the two House impeachments of former President Trump, suggest a fear of implicit social understandings but not authoritative legal meanings of two impeachments without conviction of the former President. Eugene Robinson, Moves to expunge Trump impeachments would be laughable if not so dangerous, Wa. Post (June 26, 2023), https://www.washingtonpost.com/opinions/2023/06/26/trump-impeachment-expunge-greene-stefanik/.
[42] See Doni Gewirtzman, Was Impeachment Designed to Fail?, Public Books (Aug. 5, 2020), https://www.publicbooks.org/was-impeachment-designed-to-fail/ (suggesting the Framers’ design was made protective of the President as a result of conflicting concerns over a powerful Presidency and a fear of the such factors as partisanship and resulting chaos and divisiveness with the result that, “[w]ithout a credible threat of impeachment from Congress (or a credible threat of investigation or indictment from the Department of Justice), a president with no attachment to democratic norms is free to push at the limits of their power with little fear of the consequences.”).
[43] See generally Alex Padla, Nixing the President: Using the Nixon Impeachment Inquiry as the Standard for Future Presidential Impeachment Inquiries (Dec. 9, 2022) (unpublished student Note) (on file with author) (“When there is a standard to follow on evidence, politicians and citizens alike will have less reason to conclude that impeachment is being used as a partisan weapon, rather than a mere check on executive power.”).
[44] See the Federalist, supra note 29. For a view of the Founders as having a familial aspect and as flawed human beings, see Joseph Ellis, Founding Brothers: The Revolutionary Generation (2002). Perhaps the “brothers” would have understood Aaron Burr as the kind of tyrannical figure against whom Hamilton warned, though at the time of drafting they would have had to imagine someone like Burr as President and thus appreciated the importance of inserting an impeachment article in the Constitution. For a short discussion of the deep disdain for Burr by the founding generation, see Matthew Wills, Aaron Burr, Most Hated Man in American History, JSTOR Daily (Jan. 14, 2016), https://daily.jstor.org/aaron-burr/.
[45] See Wineapple, supra note 16 (recounting Hamilton’s description of the risk of presidential tyranny).
[46] Proclamation No. 4311, 88 Stat. 2502, 2503 (Sept. 8, 1974) (“NOW, THEREFORE, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”).
[47] Holtzman Discusses Nixon Pardon, CSPAN (Apr. 24, 2014), https://www.c-span.org/video/?c4910294/user-clip-holtzman-discusses-nixon-pardon.
[48] Id.
[49] Id. (lamenting the unwillingness of her colleagues on the Judiciary committee to seek documents about the Nixon pardon and regretting the loss of a full public record with consequent protection of the rule of law as “the most important thing”). For a recent claim about the long-term damage done by the whole sequence of Watergate, most especially the failure of the Senate to convict Nixon and bar him from office, see Professor Jack Goldsmith, The Prosecution of Trump May Have Terrible Consequences, N.Y. Times, (Aug. 8, 2023) https://www.nytimes.com/2023/08/08/opinion/trump-indictment-cost-danger.html?smid=url-share (“Regrettably, in February 2021, the Senate passed up a chance to convict Mr. Trump and bar him from future office, after the House of Representatives rightly impeached him for his election shenanigans. Had that occurred, Attorney General Merrick Garland may well have decided not to appoint a special counsel for this difficult case. But here we are. None of these considerations absolve Mr. Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.”).
[50] CSPAN, supra note 47 (stating that, “I think it established a kind of bad precedent in the future, that high-level officials can expect a pardon if they do something wrong. And criminal”).
[51] Caroline Fredrickson, How to Prevent Abuse of the President’s Pardon Power, Brennan Ctr. for Just. (Feb. 24, 2021), https://www.brennancenter.org/our-work/analysis-opinion/how-prevent-abuse-presidents-pardon-power. See also Press Release, Schiff Introduces Legislation to Prevent Abuse of Presidential Pardons, (Mar. 7, 2019), https://schiff.house.gov/news/press-releases/schiff-introduces-legislation-to-prevent-abuse-of-presidential-pardons.
[52] James P. Goodrich, Use and Abuse of the Power to Pardon, 11 J. Am. Inst. Crim. L. & Criminology 334 (1921) https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1737&context=jclc.
[53] Indeed, at the Presidential level, it is fair to say that the pardon power has drifted away from the purposes laid out by Governor Goodrich to ameliorate the harshness of criminal law toward the average person without means and in the direction of use as a tool of political power and even for retrospective relief from criminal accountability for instruments of Presidential law breaking. Paul Rosenzweig, ‘Take the Land’: Trump Promises Pardons for Law-Breaking, lawfare (Sept. 3, 2019), https://www.lawfaremedia.org/article/take-land-trump-promises-pardons-law-breaking.
[54] Ken Hughes, Richard Nixon: Life After the Presidency, Miller Ctr., https://millercenter.org/president/nixon/life-after-the-presidency (last visited Oct. 24, 2023); see Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon vii (2012 ed.) (arguing that “Clinton's remark has served as a keynote for Nixon's acolytes and partisans and their unceasing campaign for Nixon's history, a history that in their version ignores or downplays Watergate . . . . [T]hey interpret history as they wish it to be”).
[55] See Nicoletti, supra note 37.
[56] See id. at 1 (describing a New York legal scholar’s view that a trial was important “to prevent the ‘defeated’ principle of states’ rights . . . to stalk national politics”); Al Weaver, Greene stirs up political storm with ‘national divorce’ comments, The Hill (Feb. 23, 2023), https://thehill.com/homenews/house/3870038-greene-stirs-up-political-storm-with-national-divorce-comments/. It may be worth noting that Abraham Lincoln was skeptical that any state save South Carolina had popular support for secession, so here improvisation without formal clarity and even without widespread support has a power of disruption with no manifest contribution to the public health of the American system of federalism. Lincoln: “It may well be questioned whether there is, to-day, a majority of the legally qualified voters of any State, except perhaps South Carolina, in favor of disunion.” Special Session Message, Am. Presidency Project (July 8, 1861), https://www.presidency.ucsb.edu/documents/special-session-message-5. See also Velte, supra note 35 (discussing the historiography of support by Southerners for secession).
[57] When Nixon sought to fire the special counsel, the reaction was one of normative rejection of the act but not a formal cancellation of Nixon’s authority. See Allen McDuffee, The Saturday Night Massacre actually sped up Nixon’s political demise, Timeline (May 10, 2017), https://timeline.com/saturday-night-massacre-nixon-1f7c2565c0d8.
[58] For a general discussion of the practice of appointing special counsels that arose after the Nixon debacle, see Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations, Cong. Rsch. Serv. (Apr. 13, 2018), https://crsreports.congress.gov/product/pdf/R/R44857/9%20ebacle.
[59] Russell Pearce & Evan Wolfson, Trump vs. Democracy: Doing Whatever He Can Get Away With, Democracy: A Journal of Ideas, (Oct. 2021), https://democracyjournal.org/magazine/specialissue/doing-whatever-he-can-get-away-with/ (quoting Justice Oliver Wendell Holmes on what a bad man understands law to be and arguing that former President Trump is such a Holmesian bad man). Holmes famously wrote: “If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).
[60] Nathaniel Rakich provides a comprehensive overview of state removal procedures, along with patterns of their actual employment to attempt removals and of their low success rates. See Nathaniel Rakich, There Are 5 Governors Being Targeted for Recalls: But the Odds Are Stacked Against Their Success, FiveThirtyEight (Aug. 19, 2019), https://fivethirtyeight.com/features/governor-recall-elections/.
[61] Report: Recall of State Officials, Nat’l Conf. of State Legis. (Sept. 15, 2021), https://www.ncsl.org/elections-and-campaigns/recall-of-state-officials (stating that, “In the 19 states that allow recall elections, citizens can attempt to remove an elected official from office at any time.”).
[62] Id. (explaining that, except in eight states, recalls do not require grounds and, as recalls are defined for purposes of data compilation, all are done by election).
[63] Id. (displaying variations in the trigger requirements for a recall). See Pollack, infra note 69.
[64] Research staff at the Illinois legislature compiled the impeachment provisions of the states in 2008, which at the time of its preparation, displayed a compilation of constitutional impeachment procedures in all states. Illinois General Assembly Research Response, Governors’ Impeachment in U.S. History, Appendix B (States’ Impeachment Procedures), https://www.ilga.gov/commission/lru/24.U.S.GovImpeachments.pdf (stating that of fourteen governors who have been impeached (two twice), seven were convicted).
[65] See Nat’l Conf. of State Legis., supra note 61.
[66] See Michelle Cottle, How Did Deep Blue California Get Played By Recall-Happy Republicans?, N. Y. Times (Apr. 29, 2021), https://www.nytimes.com/2021/08/29/opinion/california-recall-election-newsom.html (referring to “an out-of-touch recall system adopted more than a century ago that invites frequent, even frivolous, attempts to oust officials for any perceived offense”); See also Meg Cunningham, Why Are Some Californians Trying to Recall Gov. Gavin Newsom and How Does the Process Work, ABC News (Apr. 27, 2021, 11:27 A.M.), https://abcnews.go.com/Politics/californians-recall-gov-gavin-newsom-process-work/story?id=76677007 (describing the removal process).
[67] The concern found expression, and denial, in dueling opinion pieces by prominent California legal academics. Dean Erwin Chemerinsky of Berkeley School of Law argued the California recall election “was ‘unconstitutional’ because current Democratic Gov. Gavin Newsom could potentially lose with a larger plurality of votes than the winning candidate” and “California’s system for holding a recall election was ‘nonsensical and undemocratic,’ and should be declared unconstitutional because it ‘violates’ the principle of one-person, one-vote, potentially denying Newsom supporters ‘equal protection.’” See Erwin Chemerinksy & Aaron Edlin, There Is a Problem With California’s Recall Election. It’s Unconstitutional, N.Y. Times, (Aug. 11, 2021), https://www.nytimes.com/2021/08/11/opinion/california-recall-election-newsom.html; Erwin Chemerinsky and Aaron Edlin, Op Ed: It’s Not Too Late to Stop California’s Recall Election, L.A. Times (Aug. 20, 2021), https://www.latimes.com/opinion/story/2021-08-20/its-not-too-late-to-stop-californias-recall-election. A conservative legal scholar critiqued Dean Chemerinsky’s equal protection argument as speculative and lacking a basis in existing jurisprudence. Douglas Kmiec, California Recall: The Danger of Casual Claims of Unconstitutionality, The Hill (Aug. 22, 2021) https://thehill.com/opinion/judiciary/568696-california-recall-the-danger-of-casual-claims-of-unconstitutionality. For more contemporary coverage, see Liz Kreutz & Aliz Martichoux, California Recall Election: Everything You Need to Know About the Race Against Gov. Gavin Newsom, ABC7 (Sept. 13, 2021), https://abc7.com/governor-newsom-recall-update-gavin-california-election-why-is-being-recalled/10559972/; Laurel Rosenhall, Recalling a California Governor, Explained, CalMatters (Jan. 27, 2021), https://calmatters.org/explainers/recalling-california-governor-explained/; Michael Ruiz, Gavin Newsom Recall Becomes Official; Over 1.7M Signatures Against California Dem Governor Verified, Fox News (June 23, 2021, 9:18 P.M.), https://www.foxnews.com/politics/gavin-newsom-recall-official-democratic-governor-california.
[68] Laurel Rosenhall and Sameea Kamal, Newsom Overwhelmingly Defeats California Recall Attempt, CalMatters (September 21, 2021) https://calmatters.org/politics/2021/09/california-recall-election-newsom/.
[69] In fall 2021, my seminar student Josh Pollack wrote a careful and revealing study of the design choices in direct popular removal of governors. Josh Pollack, Bad Governors, Insufficient Accountability, and What We Can Do About It (2021) (unpublished student Note) (on file with author) (proposing a method mixing an initial signature requirement, an opportunity for legislative input with a choice to impeach directly or give reasons to return the matter to the voters, and ultimate control in a popular vote if the legislature declines to impeach). In Pollack’s terms, “The goal is to balance stability vs. accountability, balance over-use and under-use, and facilitate a process that ensures useful public discourse.” Notably, the goal of fostering useful public discourse is often elusive in both formal process and improvised solutions for removing “bad leaders.”
[70] Drew DeSilver, With his resignation, New York’s Cuomo joins small group of U.S. governors forced out against their will, Pew Rsch. (Aug. 25, 2021), https://www.pewresearch.org/short-reads/2021/08/25/with-his-resignation-new-yorks-cuomo-joins-small-group-of-u-s-governors-forced-out-against-their-will/.
[71] Id.
[72] Note however the claim that a removal of a Tennessee governor by improvisation called for a historical record to be made. See infra text accompanying notes 80–82.
[73] Kutler, supra note 54.
[74] In a rare departure from unremarkable stories of “sin and disgrace,” improvisation to end all improvisation occurred in a crisis of gubernatorial criminality that posed an eminent public danger in Tennessee. See infra text accompanying notes 80–82.
[75] The trend to political violence is a worry today in the United States, but it seems fair to say assassination is not a part of our general political culture. Brenda Wineapple notes that, “Impeachment was the democratic equivalent of regicide . . . and murder was out of the question.” See Wineapple supra note 16, at xxi. For contemporary worries about political violence, see Tom Nichols, The New Era of Political Violence Is Here: The danger is not organized civil war but individual Americans with deep resentments and delusions, Atlantic Daily (Aug. 15, 2022), https://www.theatlantic.com/newsletters/archive/2022/08/the-new-era-of-political-violence-is-here/671146/. Yale historian Joanne Freeman writes widely about the history of violence in political conflict, especially in Congress. She is quoted recently on declining decorum in the House of Representatives. Karoun Demirjain, Heckling of Biden Reflects a New, Coarser Normal for House G.O.P., N.Y. Times (Feb. 8, 2023), https://www.nytimes.com/2023/02/08/us/politics/biden-heckling-house-republicans.html (“‘It isn’t just a few random people yelling something at the president,’ Dr. Freeman added. ‘It’s part of an ongoing attack against national institutions of government and the national political process.’”) For Freeman’s reflections on her work on political violence and present trends in Congress, see also Joan E. Greve, Interview “The goal was to silence people”: historian Joanne Freeman on congressional violence, Guardian (Nov. 28, 2021), https://www.theguardian.com/us-news/2021/nov/28/historian-joanne-freeman-congressional-violence-paul-gosar (comparing current violent rhetoric in Congress to actual brawls in Congress in the past).
[76] See Reis Thebault, Cracked Cold Case Links Corrupt Ex-Governor to the Murder of a Witness Who ‘Knew Too Much,’ Officials Say, Wa. Post (June 10, 2021), https://perma.cc/2TFC-X8Q8.
[77] See Ken Whitehouse, Where are they now: “Impeachment, Tennessee Style”, Nashville Po. (June 5, 2012), https://www.nashvillepost.com/home/where-are-they-now-impeachment-tennessee-style/article_6a516551-cbea-520f-abee-ab00b3f082c3.html (quoting then-Lt. Gov. John Wilder).
[78] See Keel Hunt, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal xiii (2013) (forward by John L. Seigenthaler).
[79] See Chris Scott, New book recalls the day Tennessee removed its governor from office, Knox News (Sept. 7, 2013), https://archive.knoxnews.com/entertainment/life/new-book-recalls-the-day-tennessee-removed-its-governor-from-office-ep-510440305-355496641.html/ (indicating that “the ambiguity of the state constitution on the issue of inauguration of governors (ambiguity that has since been eliminated) served the attorneys well”).
[80] See Whitehouse, supra note 77.
[81] Hunt, supra note 78, at xii (forward by John L. Seigenthaler).
[82] Barbara Sprunt, Trump Impeachment Aftermath: Updates 7 GOP Senators Voted to Convict Trump. Only 1 Faces Voters Next Year, NPR (Feb. 15, 2021), https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/15/967878039/7-gop-senators-voted-to-convict-trump-only-1-faces-voters-next-year.
[83] As with most Republican Senators, Alexander took refuge in an argument against late impeachment, despite strong scholarly support for the constitutionality of late impeachment. For a discussion, see The Impeachment and Trial of a Former President, Cong. Rsch. Serv. https://crsreports.congress.gov/product/pdf/LSB/LSB10565 (last visited Oct. 24, 2023). For a history of Alexander’s career, including his service as a Senator subsequent to his term as Governor of Tennessee, see Lamar Alexander, Wikipedia https://en.wikipedia.org/wiki/Lamar_Alexander (last visited Oct. 24, 2023). Michigan State COL’s Professor Brian Kalt is a leading expert on impeachment and especially late impeachment. For his analysis of the scholarly consensus in 2001 on late impeachment, see Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 124–25 (2001). For topical treatment of the second Trump impeachments, see Brian C. Kalt and Frank Bowman, Congress can impeach Trump now and convict him when he’s gone: The Senate has conducted past trials after officials have resigned or left office, Wa. Post (Jan. 11, 2021), https://www.washingtonpost.com/outlook/2021/01/11/trump-impeachment-senate-trial/.
[84] The early swearing in was done in secret in Tennessee Supreme Court chambers on January 17, 1997, after sunset, and shortly after calling the governor to notify him of the plan to dislodge him early. See Hunt, supra note 78. The book appeared, for the sake of history, in 2013. Ralph Waldo Emerson is often cited for the saying that if you strike a king, you must kill him. For one version of what he said, see Sheldon M. Novick, Letter to the Editor, What Emerson Said, N.Y. Times (Oct. 15, 1989), https://www.nytimes.com/1989/10/15/books/l-what-emerson-said-124389.html (stating that Emerson made the statement to Oliver Wendell Holmes, who had differed with a similar sentiment attributed to Plato).
[85] Radhika Seth, Everything You Need to Know About King Charles’s Coronation, Vogue (May 6, 2023), https://www.vogue.com/article/king-charles-iii-coronation-everything-we-know-so-far.
[86] See Charles I and the Petition of Right, UK Parliament, https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/civilwar/overview/petition-of-right/ (last visited Oct. 24, 2023).
[87] The story is by no means a simple one and cannot be given definitive treatment here, or perhaps anywhere by anyone. Agreement, of a sort, seems to converge on an idea of a legacy of “revolution” in the Seventeenth-Century Civil War and the eventual restoration of the monarchy, following the period of the Commonwealth. A good treatment of the complexities of the English legacy of happenstance and improvisation and remaining political themes is provided by Mark Kishlansky, A Monarchy Transformed: Britain 1603–1714 (1996). In a felicitous phrase capturing the serendipitous nature of English revolution as unscripted but productive of a cultural outcome over time, Kishlansky writes, “[t]he English revolution was born of the axe, an unplanned child of necessity surrounded by angry predators.” Id. at 189.
[88] Frank Bowman, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump 6 (2019).
[89] Id.
[90] Id.
[91] Id. It is worth noting that in the United States, the frequent embrace of improvisation tends to mean removing a miscreant while neglecting to develop or reinforce a constitutional vision. Bowman argues that in the United States, presidential impeachments tend to take the latter form, albeit without removal, during unsettled times of worry about “the constitutional order.” Id. Bowman is necessarily referring to impeachment rather than conviction and removal, since those do not happen, so far. The one instance of a pressured exit, as discussed, devolved into an improvisation that avoided formal process for practicality, thus minimizing constitutional improvement. The report of the House Judiciary Committee, which was bipartisan, did leave some legacy of congressional care regarding a constitutional basis for a charge of intolerable Presidential misconduct. For a general history of impeachment proceedings, including an account of the Articles of Impeachment against Nixon, see Jurisdictional History of the Judiciary Committee: The Committee and Impeachment, https://www.govinfo.gov/content/pkg/GPO-CDOC-109hdoc153/pdf/GPO-CDOC-109hdoc153-3-1.pdf (last visited Oct. 24, 2023). The staff for the Judiciary Committee also produced a well-regarded document, Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment (Comm. Print 1974). This report by the staff of the Committee argued that impeachment was for unique abuses of the public trust and did not require a criminal offense. In 2019, the then Judiciary Committee staff for the majority updated the report, arguing that “[w]hen a political official uses political power in ways that substantially harm our political system, Congress can strip them of that power.” Staff of H. Comm. on the Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 5 (Comm. Print 2019), https://docs.house.gov/meetings/JU/JU00/20191204/110281/HHRG-116-JU00-20191204-SD001.pdf. Concededly, some legislative reforms did ensue. For a listing and partial critique of certain post-Watergate legislation, see B.R. Civiletti, Post-Watergate Legislation in Retrospect, DOJ (1980), https://www.ojp.gov/ncjrs/virtual-library/abstracts/post-watergate-legislation-retrospect. For an interview with Professor Jack Goldsmith arguing that the Watergate reforms had “a good run,” but need updating with new reforms in light of the Trump presidency, see Faculty Scholarship: Watergate Reforms 50 Years Later, Harv. L. Today (June 8, 2022), https://hls.harvard.edu/today/watergate-era-reforms-50-years-later/.
[92] See generally Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (1984) (describing a reassertion of a moderating influence, designed as an effort at control, over the radicalizing elements of English society that had played a role in the English Civil War and the consequent trial and execution of King Charles I).
[93] John Milton, The Tenure of Kings and Magistrates (1649) (pamphlet arguing for the right of free men to oust a ruler who becomes a tyrant). Milton wrote the pamphlet as part of the political movement to try the King for treason. Thomas H. Luxon, The Tenure of Kings and Magistrates, John Milton Reading Room, https://milton.host.dartmouth.edu/reading_room/tenure/intro.shtml (last visited Oct. 24, 2023). The Tenure of Kings and Magistrates (TKM) tries to be several things at once—a closely argued and authoritatively supported treatise in political science, a polemical pamphlet, and an essay in biblical interpretation. In her recent biography of John Milton, Barbara Lewalski describes TKM’s various generic elements: “Several elements are intertwined here, somewhat disjointedly: castigation of backsliding Presbyterians, rhetorical appeals to the fragmenting revolutionary parties, defenses of tyrannicide, and development of a republican political theory derived from classical and contemporary sources, and the Bible.” Barbara K. Lewalski, The Life of John Milton: A Critical Biography 230 (2002). For all of its claims to be chiefly a work of theory, there's much to be gained from reading it as an occasional piece, prompted by one of England's most important political emergencies.
[94] See infra Part III for a comparison of the debates about the legitimacy of the Rump Parliament to try the King and the authority of the Grand Council to organize the ouster of Benito Mussolini as head of the Fascist government.
[95] See Sean Kelsey, Politics and Procedure in the Trial of Charles I, 22 L. & His. Rev. 1, 24–25 (2004).
[96] Eikon Basilike: the portraicture of His Sacred Majestie in his solitudes and sufferings, Royal Trust Collection, https://www.rct.uk/collection/1080417/eikon-basilike-the-portraicture-of-his-sacred-majestie-in-his-solitudes-and, (last visited Oct. 24, 2023). A useful comprehensive account of the publication and impact of Eikon Basilike is available in John Milton, Eikon Basilike: With Selections from Ikonoklastes, (Jim Daems & Holly Faith Nelson eds. 2006) https://www.google.com/books/edition/Eikon_Basilike/p2wrAwAAQBAJ?hl=en&gbpv=1&dq=eikon+basilike&printsec=frontcover (explaining how the publication of the book elevated a king unpopular in life to sanctification as a royal martyr of Christ-like qualities with suggestions of resurrection).
[97] The display of a tattoo of Nixon on the backside of Roger Stone is perhaps a moving tribute to Nixon, but not in the same genre of sanctification as that extended to King Charles I. Reggie Aqui & Eric Shackelford, Roger Stone's tattoo of former President Richard Nixon goes viral, ABC News (Jan. 25, 2019), https://abc7news.com/roger-stone-does-have-a-nixon-tattoo-back-of/5106926/.
[98] See Leanda de Lisle, The White King: Charles I, Traitor, Murderer, Martyr 276 (2017). The Execution of Charles I: Killing a ‘Treasonous’ King, Hist. Royal Palaces, https://www.hrp.org.uk/banqueting-house/history-and-stories/the-execution-of-charles-i/#gs.u8f8t3 (last visited Oct. 24, 2023).
[99] Jonathan Healey, Blazing World: A New History of Revolutionary England 1601–1689 (2023) (“The political world we live in today, with regular Parliaments and elections, ideologically defined parties, a vibrant press and mass campaigns centered on large protests and petitions, was born in the 17th century.”).
[100] Adam Gopnik, What Happens When You Kill Your King, New Yorker (May 1, 2023), https://www.newyorker.com/magazine/2023/04/24/the-blazing-world-jonathan-healey-book-review.
[101] An amusing contrast between formality and improvisation is reported concerning the school experience of Mussolini’s daughter, Edda, when she was sent from the disorganized Mussolini family world to a formal high school for girls. “She found the excessive formality and strict orderliness, after 15 years of chaos and improvisation, painfully stultifying.” Caroline Moorehead, Mussolini's Daughter: The Most Dangerous Woman in Europe 47 (2022).
[102] Abdication discussions, The Nat’l Archives, https://www.nationalarchives.gov.uk/education/resources/thirties-britain/abdication-discussions/ (last visited Oct. 24, 2023); Charles A. Selden, Move Against Mrs. Simpson Seen As Baldwin Confers With the King, N.Y. Times (Nov. 26, 1936) https://timesmachine.nytimes.com/timesmachine/1936/11/26/85439094.html?pageNumber=1. A recent revisionist history suggests that “Mrs. Simpson,” the woman with whom the King was besotted, “helped him understand the necessity of his duties… [but] unfortunately, she was unable to curb his obsession with her.” The Real Wallis Simpson: A New History of the American Divorcée Who Became the Duchess of Windsor, Kirkus Reviews, March 5, 2019, https://www.kirkusreviews.com/book-reviews/anna-pasternak/the-real-wallis-simpson/ (reviewing the book of the same title). Without a formal record, even an English King’s abdication for love demands later efforts to capture the “real” story.
[103] “The Conservative Prime Minister Stanley Baldwin was the principal agent of opposition throughout the abdication crisis. He gave the king an ultimatum in which he offered the choice between the throne and the divorcée. Through Baldwin’s communication with the House of Commons and the governments of the Dominions, his influence over the British press, and his manipulation of information, he created a climate in which King Edward VIII’s abdication was inevitable.” Meghan C. Lescault, The Role of the Government in the Abdication Crisis of 1936, British Society and Culture, Providence Coll. (May 20, 2015), https://digitalcommons.providence.edu/british_2015/2/; Baldwin Is Grave Faced When He Emerges From Conference With Edward, Schenectady Gazette (Dec. 4, 1936) https://news.google.com/newspapers?nid=1917&dat=19361204&id=IeZQAAAAIBAJ&sjid=HOkMAAAAIBAJ&pg=808,4663312&hl=en (describing threat by Baldwin for entire cabinet to resign if King marries Mrs. Simpson).
[104] Todd & Walpole, infra note 107 (tying the rule to the spirit of the constitution in England and explaining that a clear rejection of the ministers’ advice “is tantamount to a vote of no confidence, and must occasion their resignation.”).
[105] See generally Tapani Turkka, The Origins of Parliamentarism: A Study of Sandys’ Motion (2007) (contrasting Sweden’s Age of Liberty in the development of Parliamentarianism with “modern times,” when parties aspire “to exert their influence . . . upon legislation and thereby upon the development of society, the economy and social order.”). The setting for Parliament to develop a role in governing through a responsiveness to democratic sentiment and social needs was created in the ferment and turmoil of the seventeenth century. See generally Healey, supra note 99.
[106] Turkka, supra note 105.
[107] See infra text at notes 91–98. An authoritative volume on Parliamentary government in England, prepared by a Canadian expert on constitutional history and an English civil servant with a familial descent from the first Prime Minister’s family, with particular reference to England, captured the norms for votes of no confidence in his work on practices in the English Parliament. Alpheus Todd & Sir Spencer Walpole, Parliamentary Government in England: Its Origin, Development, and Practical Operation, Vol. 2 120 (1891). As explicated below, these two experts on English arrangements set out norms and prudential guidance for practices in Parliament without reliance on hard rules inscribed in a formal constitution.
[108] In an exception to the general rule against citing Wikipedia, I must provide here a link to a master listing of all successful votes of no confidence in the British Parliament. List of successful votes of no confidence in British governments, Wikipedia, https://en.m.wikipedia.org/wiki/List_of_successful_votes_of_no_confidence_in_British_governments (last visited Oct. 24, 2023); see also Confidence motions in the United Kingdom, Wikipedia, https://en.wikipedia.org/wiki/Confidence_motions_in_the_United_Kingdom (last visited Oct. 24, 2023); Richard Kelly, Votes of no confidence, House of Commons Libr. (July 12, 2022), https://commonslibrary.parliament.uk/votes-of-no-confidence/ (“It is a core convention of the UK’s constitution that the Government must be able to command the confidence of the House of Commons. This convention governs both the appointment and resignation of Prime Ministers.”). The following material demonstrates efforts to make rules more formal under the Fixed-term Parliaments Act 2011, since repealed, with a return to previous “conventions.” See Richard Kelly, Briefing Paper No. 02873, Confidence Motions, Commons Library (Mar. 14, 2019), https://commonslibrary.parliament.uk/research-briefings/sn02873/.
[109] See Todd & Walpole, supra note 107, at 120.
[116] Notably, this is like an argument fashioned in the case of the Trump impeachment by Professor Alan Dershowitz, demonstrating that the grab bag for arguments defending a leader from accountability by forced departure contains a handful of ideas that emerge by improvisation from the targets of removal. Anyone can improvise, and improvisation has only so many maneuvers one can imagine, so arguments recur in new settings without direct borrowing. See Eric Tucker, WATCH: Dershowitz Says Charges Against Trump Aren’t Impeachable. Many Legal Experts Disagree, PBS: News Hour (Jan. 27, 2020), https://perma.cc/4MGN-JKMD. For a discussion of the flaws in Professor Dershowitz’s discovery of a new claim about the requirement of a crime for impeachment, see Richard Lempert, Does Impeachment Require Criminal Behavior? In A Word, “No”, Brookings (Jan. 29, 2021), https://www.brookings.edu/blog/fixgov/2020/01/29/does-impeachment-require-criminal-behavior-in-a-word-no/.
[117] For a useful explanation of how Dr. Johnson reproduced the tenor of arguments in Parliament, which it was illegal to transcribe and report, as well as the content of Johnson’s imaginary retellings of the debate, see Samuel Johnson, The Parliamentary Debates Extracts, Gentleman's Mag. (1741).
[118] A useful short summary of the King’s ascension and role in appointing Mussolini as Prime Minister can be found in The Fascist King: Victor Emmanuel III of Italy, Nat'l WWII Museum (July 14, 2021), https://www.nationalww2museum.org/war/articles/fascist-king-victor-emmanuel-iii-italy.
[119] Id.
[120] See Benito Mussolini, History (Dec. 15, 2022), https://perma.cc/8MZC-GSYJ.
[121] For a general account of the circumstances around the creation of the Italian constitution by an expert on the monarchy, see Denis Mack Smith, Italy and Its Monarchy (1989).
[122] Id. at 3.
[123] Id. at 4.
[124] Id. at 4–5.
[125] See The Fascist King, supra note 118.
[126] See Smith, supra note 121, at 249.
[127] Id. at 251.
[128] Id. at 252. Mussolini had begun to see himself and the King as “the only two serious forces in Italian politics” and “rarely bothered to attend [Parliament’s] sessions.” Id. at 245–46.
[129] Id. at 252.
[130] The following account is drawn from Smith, id., at 244–54. Smith, a leading historian of Italy, captured the chaos around the King’s role in inviting Mussolini to form a government at the time of the march on Rome. According to Smith’s account, the King was indecisive and late in arriving in Rome during the crisis created by the Fascist march and their threat of violence, which occurred at the same time as agitation from forces with revolutionary goals and during the risk, in the King’s eyes, of reforms by a new liberal government. The military advised King Emmanuel that the military could control the violence, and the state’s forces were far greater than that of Mussolini’s Fascist armed marchers. Smith summarizes the King’s decision to invite Mussolini to form a government and become the Prime Minister: “To other observers these events, much like those of May 1915, looked more like a royal coup d'etat in collusion with a few generals, a few conservative politicians, and prominent spokesman of the industrialist and agrarian classes.” See id. (here noting an explicit view of the King’s class connections that may have played a role). In effect, the King feared revolutionary, as well as reform, forces that might threaten his own wealth and that of his class. Did he improvise? Certainly, in Smith’s account, the appointment of a Fascist to form a government fell well short of formally correct processes but arose from conduct by the King that did not follow the then expected norms for consultation with leaders in Parliament. For further discussion of the back and forth within the relevant actors, see id.
[131] Smith, supra note 121, at 5.
[132] Id.
[133] Hibbert, supra note 18, 166–67, 190–91.
[134] Id.
[135] Id.
[136] Id. at 176.
[137] Id. at 177.
[138] See Bosworth, Mussolini’s Italy, supra note 26, at 495.
[139] Faculties use a variety of claims drawn from a congeries of factors granting them a voice in faculty governance, such as a rule, as in law colleges that comply with the standards of the American Bar Association for law schools, that a governing administrator, i.e., the Dean, should not be appointed over the objection of a substantial majority of the faculty. On the basis of that standard, law faculties claim that a vote expressing lack of confidence by a significant portion of the faculty is a decisive claim on the appointing authority to dismiss the dean. The claim does not rest on a formal provision of the governing documents but on that quasi-formal standard by an accrediting body, along with traditions of faculty voice in administering schools and of the status of faculty as officers of academic institutions. A full discussion of faculty votes of no confidence is available in my forthcoming book, Votes of No Confidence (in draft), with Sean McKinniss. The vote of no confidence in Il Duce had some greater access to provisions in a formal constitution, albeit one under stress from the years of dictatorial rule by Fascist alterations of constitutional practice.
[140] See Ellery, supra note 5. The Grand Council has been conceived as “a key element in the Fascist revolution, the summit for its discussions and decision-making” but “in the second decade of the dictatorship its meetings had dwindled, and in July 1943 its members had not convened since before the war.” Bosworth, Mussolini’s Italy, supra note 26, at 493.
[141] As noted, Mack Smith, a leading historian of Italy, captured the chaos around the King’s role in inviting Mussolini to form a government at the time of the march on Rome. For a deeper discussion of the King’s conduct when he appointed Mussolini, see supra note 130. In Smith’s telling, the King feared revolutionary, as well as reform, forces that might threaten his own wealth and that of his class. Thus, the appointment of a fascist to form a government was something well short of formally correct processes but rather arose from conduct by the King that did not follow the norms for consultation with leaders in Parliament. For a discussion of the back and forth within the relevant actors, see id., at 244–54. At the back end of his involvement with Fascist rule, the King was again indecisive and finally brought to a decision to act by his fear. See Hibbert, supra note 18, at 166 (describing the King’s “many changes of mind” and eventual decision “that he could delay no longer”). In some respects, the entire Fascist era began and ended with makeshift decision-making that skirted the edges of the constitutional arrangements of the nation. Let me note that this rough match of mixed formality and improvisation illustrates a thesis I am developing about “how leaders come and go.” That is, there is a rough match between how they attain office and how they sometimes lose it before their term has expired. The methods are not necessarily contained in a neatly formal set of rules.
[143] Jenny Uglow, Fascism’s Poster Girl, N.Y. Rev. of Books, 1, 8 (Mar. 23, 2023), https://www.nybooks.com/articles/2023/03/23/fascisms-poster-girl-mussolinis-daughter-caroline-moorehead/ (reviewing Caroline Moorehead, Mussolini’s Daughter: The Most Dangerous Woman in Europe (2022) and making reference to the nominal legal authority of the Grand Council to oust Mussolini and treating such use as an improvisational maneuver equivalent to a coup).
[144] U. S. Const. amend. XXII (“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”).
[145] Mila Versteeg et al., The Law and Politics of Presidential Term Limit Evasion, 120 Col. L. Rev. 1 (2020), https://columbialawreview.org/content/the-law-and-politics-of-presidential-term-limit-evasion/.
[146] Id.
[147] Id.
[148] Id. (“Especially where opposition movements are able to build broad coalitions that include a range of actors, such as political parties, students, trade unions, business interests, clergy, ordinary citizens, and civil society groups, they can be quite effective in thwarting term limits evasion.”).
[149] See Tribe & Matz, supra note 11.
[150] See Wineapple, supra note 16.
[151] See Gewirtzman, supra note 42.
[152] James M. Naughton, Agnew Quits Vice Presidency and Admits Tax Evasion in ’67, N.Y. Times (Oct. 11, 1973), https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html.
[153] See supra text at note 16 (describing Alexander Hamilton’s view of the purpose of the impeachment power).
[154] See Barry Werth, 31 Days: Gerald Ford, the Nixon Pardon and a Government in Crisis 244 (2006).
[155] See generally U.S. Dep’t of Just., Just. Manual § 9-27.110 (2018) (discussing the purpose of the principles of federal prosecution).
[156] Weiyi Cai, A Step-by-Step Guide to the Second Impeachment of Donald J. Trump, N.Y. Times (Feb 13, 2021) https://www.nytimes.com/interactive/2021/02/08/us/politics/trump-second-impeachment-timeline.html.
[157] Id.
[158] Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. U.S. Const. art. I, § 3. See also supra, text at notes 152–53.
[159] Jeannie Suk Gersen, The Case Against Trump Is Strong, but There Are Problems Ahead, New Yorker (June 13, 2023), https://www.newyorker.com/news/daily-comment/the-case-against-trump-is-strong-but-there-are-problems-ahead (stating that, “The indictment gives Trump and his supporters the strongest of reasons to persevere”).
[160] At this writing, Trump faces four criminal indictments, two state and two federal, and ongoing criminal investigations. For a summary as of Aug. 15, 2023, see Ben Protess, Alan Feuer and Danny Hakim, Donald Trump Faces Several Investigations. Here’s Where They Stand, https://www.nytimes.com/article/trump-investigations-civil-criminal.html (describing four indictments and listing pending investigations).
[161] Kimberly Atkins Stohr, Presidents have always been above the law. AG Merrick Garland must change that, Boston Globe (July 28, 2022), https://www.bostonglobe.com/2022/07/28/opinion/presidents-have-always-been-above-law-ag-merrick-garland-must-change-that/ (quoting Attorney General Merrick Garland saying, “No person is above the law” in connection with former President Trump and arguing that Garland must not fail). But see Jason Willick, How ‘no one is above the law’ became anti-Trump sloganeering, Wa. Post (Mar. 31, 2023), https://www.washingtonpost.com/opinions/2023/03/31/trump-indictment-progressive-sloganeering/ (arguing that the phrase is empty, in that, “The slogan could be used to justify any prosecution, no matter how poorly predicated, selective or malicious.”). One British commentator argues that, even though Trump’s prosecutors argue that the principle being pressed is that no one is above the law and Trump is being treated as any citizen would be, the prosecution is necessarily political in nature, as was the trial and execution of King Charles I and the French prosecution for treason after World War II of Marshal Pétain (arguing that “the indictments against the king and the president take a stand on behalf of a conception of the nation against a leader set on subverting it.”) Martin Kettle, America on trial: the charges against Trump will decide the fate of a nation, Guardian (Aug. 23, 2023), https://www.theguardian.com/commentisfree/2023/aug/23/america-trial-charges-donald-trump-us-president.
[162] David Rothkopf, American Resistance: The Inside Story of How the Deep State Saved the Nation (2022).
[163] Id.
[164] Id.
[165] Here I note the irony that formal roles that work mechanically are never evaded and are either impossible or nearly impossible to change. The two obvious examples are the rule of two Senators per state, which made sense when there were thirteen states and which cannot be changed without 100 percent support by the states, and the Electoral College, which has begun to yield narrow electoral college victories for candidates who lost the popular vote. One should also note the close call in 2020, when now President Biden won the popular vote by seven million votes, but with a shift of a few votes in swing states could have lost the electoral college. For a view of the 2020 election, see Dante Chinni, Did Biden win by a little or a lot? The answer is . . . yes, NBC News (Dec. 20, 2020), https://www.nbcnews.com/politics/meet-the-press/did-biden-win-little-or-lot-answer-yes-n1251845. For constitutional provisions governing amendments of the Constitution, see U.S. Const. art. V (setting up stringent requirements for amending the Constitution and specifically providing “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”).
[166] Rothkopf, supra note 162, at 234.
[167] Establishing the Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. Res. 503, 117th Cong. (2021).
[168] See Rothkopf, supra note 162, at 232 (quoting Rep. Lieu’s view that impeachment worked to cause “most people” to pay more attention to politics and thus to corruption in the Trump administration).
[169] See supra text accompanying notes 148–49 (suggesting that the Framers imposed a duty of ongoing improvisation by Congress pursuant to the impeachment power).
[170] The Complete Lincoln-Douglas Debates of 1858, 128 (Paul M. Angle ed. 1958). Rep. Ted Lieu cited this Lincoln quote in arguing that the House impeachment, even without Senate conviction of Trump, worked by virtue of educating the public and causing more people to pay attention to facts about the Trump administration. See Rothkoph, supra note 162.
[171] Anton Troianovski & Valeriya Safronova, Russia Takes Censorship to New Extremes, Stifling War Coverage, N.Y. Times (Mar. 4, 2022), https://www.nytimes.com/2022/03/04/world/europe/russia-censorship-media-crackdown.html (describing law criminalizing “any public opposition to or independent news reporting about the war against Ukraine”). See also Masha Gessen, Putin’s War Hits Close to Home, New Yorker (June 15, 2023) https://www.newyorker.com/news/our-columnists/putins-war-hits-close-to-home?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Daily_061523&utm_campaign=aud-dev&utm_medium=email&utm_term=tny_daily_digest&bxid=620d165f3b21f97c92401715&cndid=68661469&hasha=ab29514d7ddfbe165ee625a9b74ec79e&hashb=44442d83bfb8c76e0745c3866a2480841afc2bd2&hashc=b50ee6e9b24ad6690ee34d547fa31808035a3db0ad05b5d20746fd89f79a4b82&esrc=growl2-regGate-0521 (asserting that, “It is . . . true that Russia is a totalitarian society in which people have little to no political agency and in which the mildest protest can land one in prison for a decade” and “totalitarianism, by its nature, robs people of the ability to form opinions.”).
[172] Isaiah Berlin, The Silence in Russian Culture, Foreign Affairs (Oct. 1957) (arguing that the Russian intellectual tradition, dating to the nineteenth century and deeply compatible with Marxist ideas, is intolerant of differences about the ends of human life in Russia, or anywhere). “Whatever the truth about its origins, the state of mind of virtually all Russian intellectuals in the nineteenth and early twentieth centuries (there were some exceptions) was dominated by the belief that all problems are interconnected, and that there is some single system in terms of which they are all in principle all soluble; moreover, that the discovery of this system is the beginning and end of morality, social life, education; and that to abandon the search for it in order to concentrate upon isolated or personal ends, say, the pursuit of knowledge, or artistic creation, or happiness, or individual freedom for their own sakes, is willful, subjective, irrational, egoistic, and a moral evasion of human responsibility.” Id. at 3.
[173] “The habits of freedom are developed . . . both in private and in public, and a liberal character can readily be imagined.” Judith N. Shklar, Ordinary Vices 5 (1984).
[174] Theodore Roosevelt, The Duties of American Citizenship, Buffalo, N.Y. (Jan. 26, 1883) (advocating, in the context at the time of maleness as the repository of duty in public life, that, “[t]he people who say that they have not time to attend to politics are simply saying that they are unfit to live in a free community” and that, “their place is under a despotism”).
[175] Ira Chaleff, The Courageous Follower: Standing Up To and For Our Leaders 16 (1995) (arguing that, “unquestioning loyalty is, of course, fraught with moral peril”).
[176] Camarilla refers to a group of unofficial often secret and scheming advisers. Camarilla, Merriam-Webster, https://www.merriam-webster.com/dictionary/camarilla (last visited Oct. 24, 2023). For Trump, Sidney Powell, Mr. Pillow Guy, and Rudolph Giuliani are candidates for the appellation.
[177] For an argument that impeachment does not undo an election, see Stephen Vladeck, Impeachment Does Not ‘Overturn’ an Election, Wash. Post (Oct. 28, 2019), https://www.nytimes.com/2019/10/28/opinion/impeachment-trump.html. For a counter argument, see Jim Geraghty, Not All Trump Critics Are Sold on Impeachment, Nat’l Rev. (Sept. 27, 2019), https://www.nationalreview.com/the-morning-jolt/the-argument-against-impeachment/ (arguing that, “[i]mpeachment fundamentally is an action that undoes the results of an election, and it is inherently a divisive and angry process”).
** Gabriel Wrobel, Michigan State Law Review Online Forum Editor. My additions are in italics. Thank you to Professor Kuykendall for a wonderfully thoughtful paper, and for asking to add my words.
[178] U.S. Const. amend. 14, art. 3. “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” Id.
[179] William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751.
[180] Jocelyn Benson, Opinion, Don’t ask secretaries of state to disqualify Trump, Wa. Post (Sept. 13, 2023), https://www.washingtonpost.com/opinions/2023/09/13/secretaries-of-state-trump-disqualification/.
[181] See, e.g,. Jonathan Oosting, Judge: Trump can appear on Michigan ballot despite ‘insurrection’ challenge, Bridge MI (Nov. 14, 2023), https://www.bridgemi.com/michigan-government/judge-trump-can-appear-michigan-ballot-despite-insurrection-challenge.
[182] Mae Kuykendall, Constitutional Dread, Meet Fourteenth Amendment, Section Three: Halloween Funhouse or the Rule of Law?, Mich. St. L. Rev.: MSLR Forum (forthcoming).
Any reproduction of the Article, including, but not limited to its publication, posting, or excerption in print, or on the internet, shall give attribution to the Article’s original publication on the online MSLR Forum, using the following method of citation:
“Mae Kuykendall, How Leaders Come and Go, Mich. St. L. Rev, Forum (Nov. 27, 2023).”