Calls for impeachment of the incumbent president echo throughout the blogosphere. I cannot open my Facebook account without seeing at least a dozen impeachment references, some as simple as Impeach Trump, some far more labored and pedantic about why or why not impeachment is possible. Thus far, I have not joined the online twitter. Here I shall.
Impeachment is the province of the lower house of the assembly, in the federal government, the House of Representatives. Trial on impeachment articles (separate alleged misconducts) lies in the upper house, the US Senate. This division of responsibility follows the English law, with impeachment in the House of Commons and trial in the House of Lords. In England, anyone could be impeached and tried for any offense. Punishment could be anything the Lords imposed.
The American precedents were different from their inception, as impeachment was a tool to impose colonial accountability on otherwise immune royal officials. Thus impeachment was limited to misconduct in office, by officials, with punishment limited to removal and disqualification for future office. These were the rules adopted by the new states when they added impeachment and trial to their state constitutions. The state cases involved misfeasance in office (for example neglecting duties), malfeasance (for example taking bribes) and other crimes under state law. Relying on the states’ precedents, these were the rules adopted by the framers of the federal Constitution. The English precedent was like a distant cousin, once removed.
The constitutional provisions for impeachment and trial on impeachment are almost maddeningly terse, a characteristic of much of the rest of the document. For one thing, they are dispersed between two articles of the Constitution. Article I, section 2: “The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.” Article I, section 3, “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 withoutthe 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.” 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.” In addition, Article II, section 2, the “President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
Curiously, although conviction on any of the articles of impeachment in the Senate requires a 2/3 vote, the House only needs a majority to pass an article of impeachment. Because the upper houses of the states were deliberative bodies, and the lower houses representative delegations, it was a lot easier to bring an impeachment than to gain a conviction. This is what the US government learned when the new Congress met. One could remove a district judge who failed to attend sessions because of a drinking problem (no crime, but certainly misfeasance), but not a justice of the Supreme Court who demonstrated extreme political partisanship in his charges to the federal grand jury and his treatment of counsel in court. A judge who used his contempt power to stifle a critic would be acquitted, but not one who retained his office and supported secession. Judges could bully parties before them and be acquitted, but not solicit or extort money from them. Tax evasion and perjury were grounds for impeachment and conviction, as was any criminal offense, though most often officials accused of this sort of financial misconduct resigned, and thus escaped impeachment. The airily promoted notion that the House could impeach a sitting official for anything the House decided was an impeachment offense was not sustainable—at least as a matter of law.
Two presidents have been impeached, although impeachment was threatened against a good many others, and one of these resigned before the House could act. Although corruption was alleged, clear partisanship was involved in all but one of these cases—that is, members of the president’s party defended him, while members of the opposing party sought to remove him. In these cases, the corrupt acts were not laid at the presidents’ door, but at his appointees and personal friends. The one case of bipartisan inquiry, against Richard Nixon, ended with his resignation prior to House voting on impeachment articles framed and adopted by the judicial affairs committee.
Two impeachments of presidents went to trial, the first of Andrew Johnson in 1868 and the second of William Jefferson Clinton in 1999. Johnson’s opposition to Republican Reconstruction plans had earned him the enmity of the majority of that party in both Houses. Passage of the Tenure of Office Act in 1867 set a trap for Johnson, into which he arrogantly marched. By removing Edwin Stanton from the Cabinet, in violation of the act, he provided his enemies with arguable grounds to seek his removal. The eleven articles of impeachment all derived from the removal of Stanton, but the impeachment failed in the Senate by one vote.
In the Clinton case, the two articles voted up by a Republican majority (including five Democrats) alleged that Clinton had perjured himself and obstructed justice in his deposition in the Paula Jones case—not that he lied about his relations with Jones, but that he lied about his sexual liaison with Monica Lewinsky. The Senate declined to convict, no article gaining a majority vote.
What then does “treason, bribery, and other high crimes and misdemeanors” mean? Has its meaning changed when the officer was president rather than a federal judge or other inferior official? Could the high crimes and misdemeanors derive from actions before his or her term of office? Did the actions have to pertain to official duties? A little common sense here will go a long way. No one wants to deny the American people the services of the chief executive they elected, or to hamper that individual while he or she attempts to perform official duties. At the same time, a much higher principle as that no one in our republic is above the law. As evidence of this, note that the presidential pardoning power, which extends broadly to all offenses including treason and bribery, does not extend to impeachments.
If a president committed a felony in office, there is no doubt that he or she would be liable to impeachment. He or she could not pardon himself or herself. If the president simply refused to perform the duties of the office, that would be misfeasance, and impeachable. If the president violated an act of Congress or a provision of the Constitution, for example the Emoluments Clause, that would be grounds for impeachment. If the president perverted or obstructed the course of justice in a federal grand jury proceeding or a prosecution, that would be grounds for impeachment.
Would these also be sufficient for a vote to remove the president from office however? Even if a member of the Senate believed that the president had committed any one of these offenses, would that compel a vote to remove the president?
These are matters of constitutional jurisprudence. In law, I think the answers to the questions in the paragraph above are clear. In politics, they are much murkier. Members of the upper house have in most cases shown great loyalty to their party and to their party’s president. In other words, for veteran politicians, party means more than other considerations. This is unfortunate, for in a republic of laws, whose Constitution was framed in a time when political parties were regarded as dangerous factions, loyalty to party above fidelity to law is dangerous to all of us.