Letters from
Allan Lichtman, Noah Feldman and Jacob Weisberg, E. Haberkern, Bill Roller and
Philip Zimbardo, Colin Jones, Henrik Otterberg, and Albert J. Ammerman
To the Editors: I write to clear up misconceptions about the Constitution, the law, and my book in the review of The Case for Impeachment
[NYR, September 28]. The reviewers’ most serious error, with profound implications for current debates, is their claim that impeachment is inapplicable to offenses occurring prior to the presidency. The reviewers cite no authorities for this proposition and ignore the lack of any such limitation in the Constitution. They dismiss my example of a federal judge impeached for transgressions before assuming the bench, saying, “Judges may be different from presidents, since past criminal activity could impinge on their ability to deliver justice fairly.” Yet they fail to draw the obvious connection that any collusion between Trump and the Russians would profoundly impact his ability to govern, even subjecting him to foreign blackmail.
The reviewers incorrectly claim that Trump could not be charged with treason if he colluded with the Russians, saying that treason requires “a state of war.” Yet Russia had engaged in acts of war against America, not with bullets and bombs, but through a modern form of warfare, a cyberattack on our democracy. According to Russia’s “Gerasimov Doctrine,” propounded in 2013 by Valery Gerasimov, chief of the general staff of the Russian Armed Forces, “The very ‘rules of war’ have changed. The role of nonmilitary means of achieving political and strategic goals has grown, and, in many cases, they have exceeded the power of force of weapons in their effectiveness.” The reviewers claim that in suggesting that Trump could be charged with a “crime against humanity” for throttling back efforts to combat climate change, I advocate impeachment over a policy difference, a position I explicitly disavow, writing, “Differences of policy and values do not make a case for impeachment.” I say instead that impeachment requires proof that his backtracking on climate change threatens the well-being and survival of humanity. Crimes against the environment are well recognized in international law, and have grounded successful civil suits in several nations. A similar suit is pending in the United States. Trump himself made the case of considering inaction on climate change a crime against humanity in a 2009 open letter to President Obama, saying, “If we fail to act now [on climate change], it is scientifically irrefutable that there will be catastrophic and irreversible consequences for humanity and our planet.”
The reviewers incorrectly say that I cite Trump’s history of lying as a ground for impeachment. Rather, I claim only that Trump’s propensity to lie could expose him to impeachment if, like Bill Clinton, he lies when testifying under oath. They claim that I present Trump’s “misogyny” as another impeachable offense, although I cite his war on women only as a potential impeachment trap through a civil lawsuit that might compel him to testify under oath. Ironically, the reviewers draw extensively on other parts of my book without attribution. They closely track my language on why impeachment need not involve an indictable crime, even requoting phrases from Alexander Hamilton presented in my book. They make a case for Trump’s violation of the Emolument Clause of the Constitution that is nearly identical to my analysis, citing many identical examples, such as his trademarks from China, his Trump Tower Manila, and foreign profits from his hotels. They ignore my chapter on abuse of power, yet make nearly the same claims for impeachment, including his attacks on the judiciary and the press, and his accusation that President Obama had wiretapped his phones.
The reviewers make another damaging mistake by claiming that even if Trump colluded with the Russians, “the issue really is the cover-up, not the crime.” This trivializes the importance of such collusion, which would constitute the most serious threat to our democracy in the history of the nation. An emphasis on the “cover-up” plays into the hands of Trump and his apologists who have been implying that collusion was not a serious matter. In response to revelations of the June 2016 meeting between leaders of his campaign and the Russians, with the intent of getting dirt on Hillary Clinton, Trump said, “Most people would have taken that meeting . . . it’s very standard.” If such conduct were ever to become standard, American democracy would suffer a grievous, perhaps even fatal blow.
Allan Lichtman Distinguished Professor of History American University Washington, D.C.
Noah Feldman and Jacob Weisberg reply:
Contrary to Professor Lichtman’s assertion, the text of the Constitution does specify that crimes a president may have committed before taking office are not impeachable offenses—by using the word “high” to modify “crimes and misdemeanors.” High crimes, as we explained, are those that relate to the office occupied by the person being impeached. Actions taken without connection to political office, such as prior wrongdoing unconnected to the presidency, are not and cannot reasonably be construed to be “high.” Precedent overwhelmingly supports this understanding. From 1789 until 2010 not one federal official was impeached for actions taken before assuming office.
As Alan Baron, a former special counsel on impeachment, points out in another letter to the editors not published here, the 2010 impeachment of federal judge G. Thomas Porteous went against this tradition to a degree. One of the four articles of impeachment against Porteous was for “a longstanding pattern of corrupt conduct”— taking kickbacks from a bail bondsman— that had begun when he was a state court judge and continued while he served on the federal bench. The other three articles related exclusively to Porteous’s federal judicial service. To the extent that the citation of the judge’s earlier conduct could be understood as a departure from precedent, as was justified at the time by then Senator Jeff Sessions, it was in our view highly doubtful.
As we noted, the Porteous article of impeachment could arguably be justified on the theory that the constitutional status of judges differs from that of presidents. Under Article III of the Constitution, judges serve “during good behavior”—a restriction not applied to the president. It could be maintained that prior wrongful acts by judges constitute a violation of “good behavior” deserving impeachment insofar as they make it impossible for judges to be seen to be doing justice—especially when the course of conduct is ongoing, as Porteous’s was. In any event, Congress’s impeachment of him in 2010 should not be interpreted as a “seismic change” in the law of impeachment, as Baron suggests, but rather as an outlying case that does not set a clear precedent for presidential impeachment. Whether this matters in practice will probably depend on what the Mueller investigation reports. As we argued, collusion over the election would be a borderline case, since the election relates to the presidency. However, collusion during the campaign would likely be linked to unambiguously impeachable offenses in office, such as a cover-up or rewards to co-conspirators. Some of Lichtman’s other assertions also rest on mistakes of law. The US is not now in a legal state of war with Russia despite that country’s attempts to affect the 2016 election. The Constitution requires Congress to declare war or authorize the use of military force. Furthermore, President Trump’s announcing an intent to withdraw from or renegotiate the Paris climate accord, while in our view bad policy, does not violate international law according to any remotely plausible theory, much less constitute a crime against humanity. This sort of hyperbole tends to undercut serious discussion of impeachment.
Finally, Alexander Hamilton’s account of impeachment has been discussed by every scholar on the topic since Joseph Story in his 1833 Commentaries on the Constitution.
Trump’s attacks on the judiciary and violation of the emoluments clause have been front-page topics for months, written about at length by both of us among thousands of other commentators. We respectfully submit that discussion of these topics does not require attribution to Professor Lichtman. HOW THE TERROR FELT To the Editors: Colin Jones, in his review of Timothy Tackett’s The Coming of the Terror in the French Revolution [NYR, June 22], ignores the role of the popular movement on the left that opposed the dictatorship of Maximilien Robespierre and the Terror. Neither Tackett nor Jones is unusual in this.
In particular, the role of the most important opposition group, La Société des Citoyennes Républicaines Révolutionnaires (The Society of Revolutionary Republican Women), is completely ignored. There are two serious histories of this movement in French: Daniel Guérin’s La Lutte des classes sous la première République: Bourgeois et “bras nus” and Le Club des Citoyennes Républicaines Révolutionnaires by Marie Cerrati. A recent book in English by Hal Draper, Women and Class, includes a discussion of this movement. Albert Soboul’s The French Revolution 1787–1799, also in English, briefly notes that the club, and all other women’s clubs, were abolished by Robespierre on October 30, 1793. The history of the popular movement in the French Revolution is one that has been largely ignored.
E. Haberkern Berkeley, California To the Editors: Colin Jones’s review of Timothy Tackett’s The Coming of the Terror in the French
Revolution presents us with some curious propositions. Undoubtedly, human emotions fueled the passage of the French people from the legitimate assertion of the public interest versus the royal prerogatives in 1789 to the wholesale scapegoating of the royalist class as well as fellow revolutionists caught up the frenzy of terror in 1793. But how do we understand the structure of these emotions and their origin in the public consciousness?
That question takes us from intellectual history to the realm of behavioral and social science. And prompts another question: Must revolutionary movements take such destructive—and ultimately self-destructive—measures as part of their evolution?
It doesn’t have to go in that direction—as our recent study of group behavior demonstrates (Group Dynamics and the New Heroism: The Ethical Alternative to the Stanford Prison Experiment). The norms of group behavior are set from the top and communicated both explicitly and implicitly, verbally and nonverbally. In this social context, the emotional content of a group is carried by specific leadership roles that emerge from the group as part of its organizational structure and process of formation. One of the most salient features of this paradigm is the scapegoat leadership role that can either summon a spirit of collective acceptance and inclusion or lead to suspicion, paranoia, and murder. How the scapegoating behavior is managed by the task leaders is the determining factor. Historians and social psychologists as distinct disciplines have not enjoyed much cross-fertilization. But there may be
room for fruitful collaboration when investigating the structure of revolutionary leadership.
Bill Roller and Philip Zimbardo Berkeley, California Colin Jones replies: Timothy Tackett’s The Coming of the Terror in the French Revolution seeks to go beyond factional maneuverings in 1793 to focus on how apparently perfectly respectable members of the middling classes were drawn toward acceptance of actions from which they would ordinarily have shrunk in horror. He wants to understand that acceptance from the inside, moreover, as a felt phenomenon, and thus draws on the diaries and letters of ordinary men and women (who inevitably therefore are predominantly from the literate classes).
This emphasis on the emotional life of what historians used to call the Revolutionary bourgeoisie is pertinent and welcome in that it rejects most earlier discussions of emotions in the Revolution, which luridly highlighted the allegedly irrational, hysterical, and bloodthirsty motivations of the lower classes, particularly women in fact. Far from “completely ignoring” the Society for Revolutionary Republican Women, moreover, Tackett cites it on multiple occasions, highlighting the ways that it inspired and pioneered a set of feminist demands that remain brightly relevant in our own day. He is surely correct, however, not to view the society as “the most important oppositional group” at the time. It comprised less than two hundred members, had very limited influence within Paris, and developed a fluctuating political agenda over its short life of a few months before it was crushed in late 1793—to disappointingly low levels of popular protest.
Like Dr. Zimbardo and Mr. Roller, I too somewhat regret that Tackett’s history of the emotions in the Revolution fails to signal what the field might gain from interdisciplinary links to social psychology. In my review, I noted that he did not utilize the work of William Reddy, whose study of eighteenth-century France (notably The Navigation of Feeling, 2001) draws heavily on social science methodologies. Tackett’s own approach adapts the medieval historian Barbara Rosenwein’s idea of “emotional communities,” a concept that might offer bridges into the kind of leadership studies cited by Roller and Zimbardo. THOREAU IN TRANSLATION To the Editors: I was surprised at Robert Pogue Harrison’s assertion in “The True American” [NYR,
August 17] that “Thoreau hardly makes it onto the list of notable American authors outside his home country,” and that “his peculiar brand of American nativism has little international appeal.” In fact, Thoreau’s international reception is both broad and deep at this summer’s mark of his bicentennial. Already Tolstoy appreciated what he saw as Thoreau’s back-to-the-land ethics of simplicity, while later on Mohandas Gandhi, Martin Luther King, and representatives of several emanicipatory movements, including the Spanish opponents of fascism during the civil war and the Danish resistance to Nazi occupation during World War II, found value and inspiration in Thoreau’s brand of civil disobedience.
Thoreau’s Walden was published in England in the late nineteenth century, aided by the promotion offered by the famous proponent of vegetarianism cum social activist Henry S. Salt. During the early-to-mid decades of the twentieth century, the book was also translated into German, French, Spanish, Russian, Italian, several Nordic languages, Japanese, and Chinese. By all accounts it has been a decided success, seeing new translations and editions surface regularly—among them a very recent one in Farsi in Iran. In 1971 Thoreau’s international reception had reached a point where it received due attention in the anthology Thoreau Abroad (1971), containing a dozen essays by American and international Thoreau scholars covering different regions. While it is certainly true that Thoreau research remains overwhelmingly American, which fact will be amply evident already by the Thoreau books covered by Harrison’s omnibus review, it seems erroneous to claim that Thoreau is too quirkily and idiosyncratically American to appeal to foreign readers. As Harrison himself states, putatively “American” outlooks or behaviors are easily contrasted by their evident opposites. Thoreau likewise provokes and inspires readers near and far for the interpretive choices and responsibilities his writings prompt. Working beside his environmentalism and abolitionism, Thoreau’s never-failing penchant for proud paradox and plural entendre, along with his ever-rich veins of humor, continually prod his readers to self-inquiry and action both private and civic.
Yet there is also, and undeniably, a vibrant and ongoing scholarly exchange on Thoreau beyond the shores of America. In 2009 European and American Thoreau scholars joined for an ambitious conference in Lyon, France, to discuss his writings and their legacy. The ensuing well-received anthology, Thoreauvian Modernities: Transatlantic Conversations on an American Icon (2013), was published by the University of Georgia Press. A follow-up bicentennial Thoreau conference, also to be held in Lyon, is scheduled for this mid-October, and next spring a Thoreau symposium will be held in Gothenburg, Sweden, in early May. These are just indications of Thoreau’s continued interest among scholars, of course, while there are bound to be more Thoreau-related panels and events unfolding internationally in the near future. Writing from provincial Sweden, I can report that the last decade has seen the following Thoreau publications disseminated to curious Swedish readers: a new, annotated translation of Walden (2007); two translations of “Resistance to Civil Government”; an edited selection of Thoreau’s bird notes in his journal; as well as a wider swath of his 1850s journal. While he cannot compete for attention with our popular crime authors, recipe-book writers, and other peddlers to the popular moment, Thoreau’s impact has remained distinct and steadily growing over time. He has had several more lives to live beyond his native Concord and America.
Henrik Otterberg Gothenburg, Sweden MAPPING ANCIENT ROME To the Editors: Andrea Carandini stands out from other scholars who have studied ancient Rome over the last forty years in his enthusiasm for creating visual reconstructions of the early city and in his fascination with Romulus as a figure in history. Mary Beard had her hands full in reviewing The Atlas
of Ancient Rome [NYR, July 13], and, on the whole, she ably rose to the challenge. I would like to offer two brief comments that may help to round out the story.
The first concerns the many attempts that have been made at reconstructing the ancient city of Rome since the time of the Renaissance. A reconstruction of a city is nothing if it does not take risks. And yet it must not go too far: otherwise it becomes simply an imaginary city or an architectural caprice. There is a delicate balance in taking just a few steps beyond the bounds of knowledge at the time and in completing the unknown according to culturally accepted rules (again at the time), so that the reconstruction will be seen as convincing. Over the years, reconstructions of ancient Rome have taken many different forms: maps, paintings, prints, gardens, theater scenery, scale models, and now an atlas. In 1561, Pirro Ligorio, an architect, was the first to produce a bird’s-eye-view map of the entire ancient city. Stefano Du Perac (1574) and Mario Cartaro (1579) then followed in his footsteps—each claiming, of course, that his reconstruction was better than the previous ones. Michel de Montaigne formed his initial ideas about ancient Rome by studying such “pictures,” as he called them. When he made his first visit to Rome in 1581, he walked around the city and soon realized that all of the reconstructions had their limitations.
What Carandini and his coauthors are doing is more than just reading the ruins of Rome. They are returning to a timehonored endeavor and giving us the most recent edition of Montaigne’s “pictures.” It will be the task of the next generation of scholars to probe the strengths and the weaknesses of their reconstructions.
The second comment involves the parallels in the lives of Carandini and Giacomo Boni (1859–1925), who have made major contributions to the archaeology of early Rome. They both had charismatic personalities, a passion for digging well and deeply at sites in the center of ancient Rome, and an enthusiasm for seeing Romulus as a figure in history. Today most archaeologists and ancient historians view the first king of Rome as a legendary figure. And this was the case in Boni’s time as well.
In 1899, Boni made two important discoveries at the Comitium in the Forum: the first was the Lapis Niger (the shrine where he thought Romulus was buried) and the second was the famous early inscription written in archaic letters with the word rex (king) in it, which dates to the sixth century BC. Boni’s belief in the historical Romulus led him to draw connections with what he was finding in his excavations that have not survived the test of time. In retrospect, it would have been better for him to follow the advice of Domenico Comparetti, a leading scholar at the time, and take a more cautious approach to reading the ancient sources on Romulus.
In the case of Carandini, there are leading scholars today who tried to wave him off this quixotic course but to no avail. Instead, he forged ahead and bet the whole house on Romulus. Whether or not this was such a good decision on his part, only time will tell.
Albert J. Ammerman Department of Classics Colgate University Hamilton, New York