SUNY series in American Constitutionalism

Daniel P. Franklin, Stanley M. Caress, Robert M. Sanders, Cole D. Taratoot

• Publisher: SUNY Press
• Year: 2020
• ISBN:
  9781438480053
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

The Politics of Presidential Impeachment takes a distinctive and fresh look at the impeachment provision of the US Constitution. Instead of studying it from a legal-constitutional perspective, the authors use a social science approach incorporating extensive case studies and quantitative analysis. Focusing on four presidents who faced impeachment processes—Andrew Johnson, Richard Nixon, Ronald Reagan, and Bill Clinton—they examine the conditions under which presidential impeachment is likely to occur and argue that partisanship and the evolving relationship between Congress and the president determine its effectiveness as an institutional constraint. They find that, in our contemporary political context, the propensity of Congress to utilize the impeachment tool is more likely, but given the state of heightened partisanship, impeachment is less likely to result in removal of a president. The authors conclude that impeachment is no longer a credible threat and thus no longer an effective tool in the arsenal of checks and balances. The book also offers a postscript that discusses the impeachment of President Donald J. Trump.

CHAPTER ONE

Impeachment

Safeguard or Political Weapon?

In a democracy we trust the will of the people. If public officials betray the public’s trust, there must be a mechanism to hold them to account. The obvious remedy is periodic elections. However, for those officials whose misbehavior is at the beginning or in the middle of their terms or for those officials, such as judges, who serve for life, there must be another remedy. That mechanism is provided for in the Constitution through impeachment.

The problem, however, with impeachment is that it is often a matter of opinion whether an alleged transgression is a betrayal of the public trust or simply a decision out of the ordinary. How can we be properly governed if leaders are limited to doing what is only conventional or popular? We must, after all, trust our elected and top appointed officials to do the right thing, even if it is unpopular in the moment. As Edmund Burke once said, “Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.” That is why James Madison made it very clear in the Federalist Papers that set terms between elections were essential because they would allow elected leaders sufficient time to make decisions that at the moment seemed mistaken, even negligent, but might in the long run be in the nation’s interest.1 This illustrates why impeachment under the Constitution is such a controversial procedure. Impeachment and removal at its most basic level represents no less than a subversion of the electoral will of the people, and it must be deployed rarely and judiciously if it is not to undermine the legitimacy of democratic governance.

Consequently, in the interim between elections, or after appointment in the case of federal judges, impeachment is the final resort to be used against treasonous, criminal acts or even gross negligence by elected officials. But it is precisely because of periodic elections and the care with which we vet our appointed officials that actual impeachments are relatively rare.

Regardless of the original intent, impeachment has also been used as a political weapon. The ability to bring charges against an officeholder and force a trial for possible removal can be a devastating blow to a political opponent. An impeachment conviction is the equivalent of a political death sentence, and even the mere threat of impeachment can greatly weaken an adversary or affect their behavior. Thus, impeachment can be used to intimidate an otherwise powerful officeholder. In the intensely and increasingly combative conditions that frequent American politics, impeachment can even be used as a strategy to advance a political agenda.

Since impeachment is both a safeguard and a political weapon, an important question needs to be asked: Has the impeachment power been used in accordance with its original intent, or has it evolved into something far beyond the desires of the founders of our government?

The wording of the Constitution clearly indicates that impeachment is a method for protecting the American system of government from those who seek to abuse it. There is no question that the impeachment mechanisms created by the Constitution were designed to remove public officials who violated the public’s trust by committing serious criminal acts; however, did the Constitution also intend that impeachment be used as a tool to incapacitate or harass a political opponent? Has the impeachment power been used as it was intended in American history?

Under the Constitution impeachment is described in the following manner:

Article I, Section 2 (5)

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article II, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article I, Section 3 (6, 7)

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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.

As is the case in much of the Constitution, the wording in regard to impeachment is at times straightforward and in some instances vague, leaving room for interpretation. Impeachment, the power to bring charges for possible removal from office, is given solely to the House of Representatives in Article I, Section 2. If the House of Representatives, by a simple majority vote, approves the impeachment, Article I, Section 3 gives the Senate the sole authority to try the impeachment. The only requirements are that the senators, when sitting for the trial, must be under oath or affirmation2 and that a two-thirds affirmative vote of the members present is necessary to convict. The same section also requires that, in the case of presidential impeachment, the chief justice of the United States Supreme Court presides over the trial. Additionally, Article II, Section 4 states that the president, vice president, and all civil officers of the United States can be removed from office if impeached and convicted, and that the impeachable offenses include “treason, bribery and other high crimes and misdemeanors.”

The only other clarification in the Constitution concerning impeachment is in Article I, Section 3, which states that the punishment for conviction cannot extend beyond removal and disqualification in the future from holding public office.3 However, once removed, the convicted individual could still be subject to criminal indictment, trial, and punishment in a court of law.

Since the ratification of Constitution in 1789, the House has impeached nineteen individuals: fifteen federal judges, one senator,4 one cabinet member, and three presidents (Richard Nixon resigned before he was impeached). The Senate has conducted sixteen full impeachment trials. Of these, eight individuals, all federal judges, were convicted.5

These judicial precedents are important because they serve to clarify some of the ambiguous language about the impeachment process outlined in the Constitution. Among the issues resolved are which “officials” are subject to impeachment: basically, judges and federal officials with a policy-making portfolio.6 It appears that impeachment can only relate to activities during an individual’s time in office and in relation to the official responsibilities of that office. So, for example, if an official engaged in a cover-up while in office of criminal activities that took place before he or she came into office that would be an impeachable offense. However, it is not the case that an official convicted of a crime committed before taking office would be subject to impeachment for that crime.7 However, if individuals violate the law in pursuit of office, the question remains as to whether this would be grounds for impeachment.

But while the text of the Constitution makes it plain that impeachment is designed to remove criminals and traitors (“treason and bribery”) from the government, what constitutes “high crimes and misdemeanors” is not clear.

Is the meaning of high crimes and misdemeanors limited to criminal conduct or can other activities justify an impeachment (and conviction)? Alexander Hamilton fairly definitively answers this question in Federalist 65:

A well constituted court for the trial of impeachments, is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.8

Furthermore, later in the same essay, he provides other reasons to regard impeachment as something other than a criminal procedure. First, the trial for impeachment is held not in the courts but in the Senate. Because of the partisan and ideological nature of this body, the standards by which the Senate decides will inevitably be political. In addition, an official who is impeached could still be subject to criminal charges. While the Constitution makes it clear that double jeopardy is not allowed in criminal cases, an official who has been impeached, removed, or even acquitted by the Senate can still be formally charged with a crime. Therefore, impeachment is, from a constitutional perspective, different from a criminal charge.

Thus, if an officeholder obtained his or her position through fraudulent means but broke no actual law, could that still be considered a political crime even if falling below the standard of a crime or a “misdemeanor”? If a president acted in a reckless manner that jeopardized the security of the United States or disregarded the Constitution, for example, in ignoring a direct order of the court, would that individual be subject to impeachment? It appears that this judgment is at the discretion of the House of Representatives.

Obviously, the Constitution is relatively vague in this regard. But sometimes in that respect, vice is virtue. The Constitution is flexible enough to adapt over time. When the Constitutional Convention considered this provision, it used a phrase that was in common usage at the time. Impeachment had been in existence in England since the fourteenth century. There is some reason to believe that the “high” in high crimes and misdemeanors referred not to the classification of the crime, but to the position of the transgressor.9 After all, impeachment was in form and substance not to be restricted to common crimes and misdemeanors. Those transgressions were handled in different venues, the common courts, and by different standards, requiring that a jury hold that a crime had occurred beyond a reasonable doubt. Whereas, as noted above, impeachments are tried in a different venue, by a different process, and conviction is based on a different standard.

High-ranking officials in the performance of their duties can commit “high crimes.” “Crimes” obviously refers to criminal behavior including but also other than treason and bribery. “Misdemeanors” seems to refer to actions taken by officials that make them unfit to serve, for example in violation of their oath of office. In the modern context we have a rather narrow definition of the word “misdemeanor” (something in between a crime and a tort), but it is not the equivalent of what was meant by the Framers in the context of the impeachment clause.10

In his ““Notes of Debates in the Federal Convention of 1787,” Madison recounts the convention’s debate on July 20, 1787 on this provision:

Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

The fact that Madison quotes himself gives particular weight to the sentiments expressed. He clearly meant the provision for “high crimes and misdemeanors” to mean something other than that to which we make modern reference in the classification of crimes (i.e., felonies and misdemeanors).

As a result, the House and Senate, as elected bodies, can be the judge of what constitutes a high crime or misdemeanor rising to the level of impeachment. Thus, impeachment, to a considerable extent, can be considered a political process. There are limits beyond which the House cannot go in initiating an impeachment if there is any hope for a conviction. After all, to convict in the Senate requires a two-thirds vote and that won’t happen unless a considerable number of senators from the president’s party are convinced to go along. Of course, as we shall see in the case of the impeachment of Bill Clinton, removal from office never seemed to be the intent of the congressional opposition at all. Rather impeachment, in this case, was applied, or more accurately misapplied, as a political tool.11

American Impeachment’s English Roots

Impeachment is not a uniquely American constitutional artifact as impeachment had been a British governmental practice since the fourteenth century.12 Impeachment was often deployed by the Parliament for partisan reasons and was seen as a practical instrument to be deployed in struggles for power. The British monarch could not be impeached, but impeachment was often used by Parliament at the behest of the king to remove and even punish political enemies. The king could order the House of Commons to initiate impeachments against anyone inside or outside the government, and then order the House of Lords to convict and punish the accused individual. The charges varied but often resembled the familiar American variant of “high crimes and misdemeanors.”

Gradually, impeachment became a more formal power exercised independently by the British Parliament, with the House of Commons using the process to bring charges against a wide assortment of public and private citizens, often with little hard evidence. At times this was done to punish political enemies or in the battle between political parties. Indictments from the House of Commons were sent to the House of Lords, which had a higher standard for evidence and usually would only proceed if the case had a possibility of conviction. Often the House of Lords would disregard the House of Commons’ indictment and not hold a trial at all.

English impeachment practices had many similarities to the procedure eventually written into the United States Constitution, but there were several critical differences. The English version differed markedly from the process described in the Constitution because it could be used not only against judges, royal ministers, and other government officials but also against private individuals. While the Parliament usually preferred that commoners be tried in regular courts, there were many notable exceptions, usually involving political motives. Furthermore, English impeachment convictions could result in severe punishments, whereas American impeachments can only result in removal and disqualification from office. But English impeachment practices did provide the model for impeachments that took place in the American colonial period.

Colonial Impeachment

In the absence of any way to discipline, vote out of office, or remove colonial officials, Americans under British rule impeached the king’s representatives with some regularity. As early as 1635, the Virginia General Assembly attempted to impeach its governor, John Harvey. After the General Assembly charged Harvey with malfeasance, he was sent to England for trial. However, King Charles’s Privy Council refused to hold a trial and sent Harvey back to continue service.

Impeachments were common in colonial Maryland, which had a bicameral legislature. Similar to the English system, the legislature in Maryland accused officials of wrongdoing in one house and tried them in the other. However, these cases were again subject to appeal to the English authorities, who often reinstated the officials. Among the other colonies to have impeachment provisions in their colonial charters were Virginia, Rhode Island, and Pennsylvania.13

Despite these early colonial i...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Chapter One Impeachment: Safeguard or Political Weapon?
• Chapter Two Methods: Analyzing Presidential Impeachment
• Chapter Three The Impeachment of Andrew Johnson
• Chapter Four The Impeachment and Resignation of Richard Nixon
• Chapter Five Ronald Reagan and the Iran-Contra Affair
• Chapter Six The Impeachment of Bill Clinton
• Chapter Seven Conclusion: The Politics of Impeachment
• Postscript The Trump Impeachment
• Notes
• Index
• Back Cover