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Laurence H. Tribe & Joshua Matz, To (Pretend to) Review Our Book, 132 Harv. L. Rev. F. 78 (2018).

Abstract: In the world according to Professor Michael Stokes Paulsen, impeachment turns out to be a remarkably simple subject. So simple, in fact, that it’s unclear why it would merit a book, let alone a spate of studies. Here’s the scoop: A few sources from the late 1780s decisively show that “the impeachment judgment is properly concerned... solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power.” Nothing else can ever be relevant. If a legislator concludes that the President’s wrongs are “sufficiently serious,” he or she is obliged to vote for the President’s removal from office. And in assessing seriousness, legislators can look only to neutral factors derived from “original objective public meaning.” This approach shields us from “considerations of strategy, practicality, and partisan politics.” It also reveals that the impeachment power has been drastically under-utilized in American history: Andrew Johnson and Bill Clinton, and potentially James Buchanan and Woodrow Wilson (among quite a few others), should never have completed their terms in office. Only a partisan hack — with dodgy motives and even dodgier methods — could support any other view of impeachment. That’s where we come in: we’re the hacks. Professor Paulsen is explicit on this point. In his telling, we engaged in a devious “partisan gerrymander,” deliberately reverse-engineering an impeachment standard to ensnare as many Republicans as possible while letting Democrats off the hook. We were able to do so, Paulsen adds, only because we didn’t stick to originalist methods. By falsely asserting that originalism doesn’t provide a clear and determinate framework for impeachment analysis, we invented judgment calls vulnerable to partisan manipulation. And then we engaged in precisely such skullduggery, making up new standards and invoking irrelevant considerations. But, alas, we did a bad job. Having written a whole book to oust President Donald J. Trump while saving Clinton’s legacy, we stumbled at the finish line — first by offering “contradictory warnings” about the strategic risks of impeachment, and then by failing to demand Trump’s removal. Professor Paulsen blends accusations of willful bad faith with insinuations of scholarly and strategic incompetence. These aren’t minor charges. You might therefore expect that Paulsen would have engaged seriously with our arguments. If so, you’d be disappointed. As one of our colleagues candidly remarked, “It’s almost like he didn’t read the book.” In accusing us of a partisan gerrymander and methodological dishonesty, Paulsen repeatedly and egregiously mis-describes our thesis, reasoning, and conclusions. He then ignores entire sections of the book that refute core premises of his “naïve” view. Throughout, he rips text out of context to complain about contradiction. In short, he has reviewed a book that we didn’t (and wouldn’t) write. And he has accompanied that “review” with a supposedly originalist theory of impeachment that is neither originalist nor persuasive.