A report from the Washington Post last night suggests that President Donald Trump dictated a purposefully misleading statement released by his son about a meeting with a Russian lawyer in Trump Tower last June. The story raises the now-familiar issues of collusion between Trump’s campaign and Russians in the 2016 presidential election, and Trump’s possible obstruction of related investigations. Although these allegations remain unproven, they may eventually lead to congressional sanction. Indeed, the recent reporting by the Post is just one more item in a list of serious concerns about Trump’s actions in office that many across the partisan divide consider alarming. While Republicans hold the reins in both chambers of Congress, impeachment is an unlikely response to any of these growing concerns. But there is another option for members of Congress frustrated with the president but not prepared to impeach him: censure.
Censure lacks the legal bite of impeachment, such as disbarment from public office, but comes with its own political barbs. Although it hasn’t received much attention so far, this may be the likeliest scenario for Trump because it avoids the constitutional pitfalls of indictment and requires less political support from congressional Republicans than impeachment. It’s a way for Congress to rebuke the president, fire a warning shot if that is the intention, and all without dropping the more explosive device of impeachment. That said, some Republicans may worry that after drawing a red line with the president, he’d likely cross it, and that censure will quickly give way to public demands for the greater weaponry of impeachment. One other feature of censure is worth noting: unlike the impeachment process, the Senate could issue its own censure without waiting for the House to act first or in agreement.
But is congressional censure of a president constitutional? Probably. Legal objections have been raised to the practice, stretching as far back as 1834 when Andrew Jackson, Trump’s hero, was formally rebuked by the Senate for wrongdoing involving the Bank of the United States. In a (very) long response, Jackson described the motion as “wholly unauthorized by the Constitution, and in derogation of its entire spirit.” (That censure was later revoked when Jackson’s allies took control of the Senate.)
More recently, some members of Congress argued that censure was unconstitutional when it was floated as an alternative to impeaching Bill Clinton, and the issue was again debated before the Senate Judiciary Committee in the Bush era. Objectors point to the fact that the Constitution omits any mention of censure, and that the Constitution sets out a different mechanism for Congress to adjudicate a president – impeachment. These kinds of arguments would probably be revived if a censure of Trump were floated.
But the Constitution also does not expressly prohibit censure. Many people and organizations to have considered the question–including the Congressional Research Service–have concluded that passing censure motions of presidents is well within the power of either or both chambers of Congress, especially given past practice. From the earliest days of Congress, it has become accepted practice to employ a simple resolution of one chamber or a concurrent resolution of both for non-legislative matters, expressing the opinion or the “sense of Congress” on a matter. The bill of attainder clause means that a constitutional line would be crossed, however, if Congress sought to impose a fine on a president.
One somewhat esoteric argument against censure should be mentioned. In the midst of the Clinton controversy in 2000, a newly minted law school graduate named James C. Ho – who would go on to become a Supreme Court advocate and serve as Solicitor General of Texas (and who is rumored to be on the short-list for a federal appellate judgeship) – wrote an article for the Harvard Journal of Law & Public Policy arguing that congressional censure was unconstitutional. Ho drew a distinction between descriptive motions and true censures. The Jackson resolution fell into the former camp, according to Ho, because although “[t]he resolution did describe the events in controversy and conclude that Jackson’s act was improper … it did not inflict any punishment. … And it did not condemn him with words of censure.” The Buchanan censure and the mooted Clinton resolutions were true censures, he wrote. He reasons that those measures impugned the president’s honor and thus constituted a punishment, falling foul of the bill of attainder clause.
Censure is used sparingly, and not in the last 157 years, but these are unusual times. Apart from the Senate censure of Jackson, the House censured John Tyler in 1842 and James Buchanan in 1860. There was also congressional chatter around censuring Clinton, George W. Bush, and Obama. (And in the realm of fiction, West Wing fans will recall President Jed Bartlet’s decision to accept censure for concealing his multiple sclerosis.) At one point, Clinton even suggested he would accept a censure in exchange for impeachment being dropped. A censure motion was also introduced in the House during Nixon’s presidency but never made it to the floor.
Other members of the executive have also been rebuked by censure motions, including a House resolution condemning the Secretary of the Navy (along with President Buchanan) in 1860, and a Senate motion condemning Attorney General General A.H. Garland in 1886.
Because there’s no constitutional prescription, it’s essentially up to Congress to decide the form and content of a censure motion. It could include a simple majority in either house or a joint resolution. There is no magical form of words – in some of these examples the word “censure” wasn’t even used. Any kind of reproof will do.