Impeachment: Time for an Overhaul
Impeach the bastard!
For the last two generations that cry has been directed at many top officials, from Chief Justice Earl Warren in the 1950s to President George W. Bush today. Two of the last seven presidencies have struggled with a serious impeachment effort.
With Congress and the Presidency soon to be held by different parties – the essential precondition for presidential impeachment – it’s a good time to take a hard look at the troubled impeachment provisions in the Constitution.
Only a generation ago, in the summer of 1974, impeachment seemed like one of those constitutional compromises that looks clunky on paper but somehow just works.
Confronted with Richard Nixon’s abuses of power, the House Judiciary Committee doggedly assembled bipartisan support for three impeachment articles. Rather than face trial before the Senate, the disgraced President slunk off to exile. The story line was perfect. Wrong was punished. The nation’s honor was vindicated. All that was missing was a sound track.
What geniuses those Framers seemed, selecting a seventeenth-century parliamentary device that could still topple the most powerful person in the world with clean, deft strokes. Not for nothing, we thought, are those guys all over the currency!
Not So Fast
Beginning in the late 1980s, only impeachment nerds noticed that the process was developing a case of the hiccups, or worse.
First the House and Senate removed from office Judge Alcee Hastings of Florida, concluding that he conspired to extort a $150,000 bribe from parties in a case before him. The accusation sounds bad, but a jury already had found Judge Hastings not guilty of the offense. Some explained that disparity by claiming that the judge lied at his criminal trial.
Shortly thereafter, Judge Walter Nixon of Mississippi also was impeached and removed from office. He, too, had been acquitted by a jury of receiving an improper payment, but was removed from office for supposedly lying to a grand jury about that blameless payment. In one of Judge Nixon’s better sallies, he called the charge one of “lying to conceal my innocence.”
Still, there was no real alarm. What decision-making process produces coherent outcomes every time? And, after all, they were only lower-court judges.
Then Judge Nixon challenged the Senate’s procedure of shunting witnesses off to a committee of twelve senators, ensuring that eighty-eight senators never heard the evidence against him. The Supreme Court ruled that when the Framers wrote that the Senate shall “try all impeachments” they did not mean an actual “trial.” That whole hearing-the-evidence thing is so eighteenth-century. Rather, it turns out that a trial is whatever the Senate says it is.
This was more troubling, but it still only involved a federal judge. Jeez, we’ve got hundreds of them.
No one, though, was expecting the Clinton impeachment debacle in 1999. Suddenly the truth was there, right out in the open. The golden impeachment glow from 1974 was gone forever. Impeachment, we discovered together, could be really, really stupid.
Who can bear to think back on the whole sordid mess? Prosecutorial smirks. The cigar. The dress. “I did not have sexual relations with that woman!” “It depends on what the meaning of is is.”
An entire nation turned away from the television – well, psychically turned away, without actually taking its eyes off the screen – thinking, “I hate all of you.”
What did any of it have to do with the man’s fitness to serve as President? What did he do that at least a half-dozen predecessors had not also done (in at least one case, with a slave)? Having not been asked about such liaisons, those predecessors never lied about them, but that hardly justified the Clinton impeachment.
In the years since the Clinton acquittal, impeachment seems more and more irrelevant.
Start with President Bush. He admits to wiretapping American citizens in violation of law. That one got Richard Nixon impeached. Read Impeachment Article II against him.
Then there are President Bush’s prewar presentations about Iraqi “weapons of mass destruction” and that Al Qaeda was linked to the Iraqi government – presentations that effectively deceived the nation into war. Nixon’s Impeachment Article I charged that he deceived the nation over the Watergate break-in. And no one died at the Watergate.
Yet the Democrats taking control of Congress recoil at the prospect of even inquiring into whether impeachment grounds exist. They will not, we have been assured, even ask the question.
In a final Rasputin moment, Judge Hastings has roared back into the news. For the last fourteen years he has been Congressman Hastings, since his Florida neighbors were unimpressed by the Senate’s verdict against him. He was pressing to chair the House Intelligence Committee, though Speaker-Elect Nancy Pelosi has squelched his ambition.
Can impeachment still be relevant? Should it be?
Weird From The Start
Like many questions in American government, the impeachment trail begins in Philadelphia in the sweltering summer of 1787, as delegates to the Constitutional Convention struggled to imagine a republic that would stand the test of time.
James Madison’s “Virginia Plan” proposed impeachment for removing executive officers, borrowing a device that the British Parliament had used more than a century before to strip the Stuart kings of a variety of advisers, many of whom (literally) lost their heads in the process.
Though the British had not much used impeachment in the decades before the Convention, the delegates saw the process as an answer to the searing questions posed by George Mason of Virginia: “Shall any man be above justice? Above all shall that man be above it who can commit the most extensive injustice?”
Ironically, America’s infatuation with impeachment coincided with Britain’s abandonment of it. In 1787 British legislators were entering year three of the nine-year impeachment of Warren Hastings, Governor-General of India. After Hastings’ acquittal in 1795, a chastened Parliament never used the device again.
The Philadelphia delegates struggled with two core questions surrounding impeachments: Who should decide them? And what should be the grounds for impeachment?
After weeks of placing impeachment trials before the Supreme Court, the Convention gave the power to the Senate, recognizing what Alexander Hamilton later called the “political” nature of impeachment.
“Where else than in the Senate,” he asked, “could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?”
The delegates struggled even more with defining impeachment grounds.
The earliest drafts would have allowed impeachment for “malpractice and neglect of duty,” a formulation that was retained until late July. When a five-man committee prepared a draft constitution, it narrowed the grounds to “treason, bribery, or corruption.” Those were narrowed further to treason and bribery.
On September 8, George Mason objected. The grounds for impeachment had grown so narrow, he sputtered, that they “will not reach a great many great and dangerous offenses.” He proposed adding “maladministration” to the list, but Madison found the term too vague. Giving himself a figurative slap on the forehead, Mason came up with “other high crimes and misdemeanors,” which the weary delegates adopted.
Thus were centuries of confusion written into the impeachment clause.
Why Doesn’t It Work?
Some scholars claim to know the meaning of “other high crimes and misdemeanors.” Their analyses display painstaking historical research of medieval forms of action and apply a nuanced appreciation of the balance of powers.
In other words, none of them is particularly persuasive.
Experience demonstrates that one person’s “high misdemeanor” is another person’s harmless peccadillo. The confusion is deepened when an opaque judicial concept like “high crimes and misdemeanors” is applied to the frankly political act of removing a public official.
Take President Andrew Johnson, the muttonheaded racist who tried to keep the freed slaves in peonage after the Civil War, thwarting congressional efforts to extend land or rights to those most abused members of our community. Perhaps no chief executive has so richly earned his poor reputation.
Johnson’s opponents three times tried to drive him from office. Twice they failed miserably with impeachment resolutions charging that he was undermining national policy as announced by Congress. Confronted with the Constitution’s impeachment language, one Johnson opponent despaired, “If we cannot state upon paper a specific crime, how are we to carry this case to the Senate for trial?”
Narrowing their focus, the impeachers then charged Johnson with violating a (probably unconstitutional) restriction on his power to remove a Cabinet officer. Even though Johnson plainly violated the statute involved, and even though the statute conveniently stated that a violation of it was a “high misdemeanor,” the Tennessean still escaped removal by a single vote.
The lesson to future impeachers was clear. When the stakes are greatest, keep your focus tight. Find a “crime,” no matter how small or dubious, and you can at least get into the game.
Has the accused, like Alcee Hastings, already been acquitted of the alleged offense? Or, as with Bill Clinton, was the alleged crime stage-managed by vengeful harpies on a matter of zero public significance?
No worries. Take your best shot. Who knows? Maybe people will think it’s a “high crime or misdemeanor.”
Amend the Constitution
The Framers got much of the impeachment process right. It should not be easy to remove the President, who is chosen semi-directly by the people through the electoral college. And Congress is the only body with the political legitimacy to do that job.
The problems with impeachment are not beyond our ingenuity. It does seem a poor use of Congress’ time to have it unseat every miscreant judge. Eleven of the fifteen impeachment proceedings to reach the Senate have involved lower court judges, unlegendary desperadoes like Halsted Ritter of Florida. Harold Louderbeck of California, and West Humphreys of Tennessee.
In short, Congress really should have something better to do with its time. The judiciary itself could conduct the removal process for lower-court judges – it is in the business of running trials – while preserving congressional impeachment for executive officials and Supreme Court justices.
The larger challenge is to scrape away the judicial concepts that have encrusted impeachment while keeping our focus on George Mason’s question: Shall anyone be above justice, particularly the person with the greatest power to do wrong?
“High crimes and misdemeanors” should go. Thoughtful analysts have concluded that this antique phrase means something like “abuse of office” – not a petty crime like jaywalking or dipping into the collection plate at church, but something that betrays the public trust. Certainly that’s what it ought to mean.
Why not insert “abuse of office”? To placate those who fear making impeachment too easy, the phrase could even be “substantial abuse of office.”
Then, at least, we would know what we are disagreeing about.
Interesting thoughts, but, like many, I think you missed the point of Clinton’s impeachment. Granted, no president will probably ever achieve the level of “ick” that clinton did, but the affair did not rise to the level of an impeachable offense. What did, though, is the President of the United States putting his hand on a Bible, raising his hand to tell the truth, and lying through his teeth. I also believed it impeachable that he had his subordinates do the same, whether knowingly or unknowingly. There are Clinton staffers who were financially and personally ruined because of what he did.
I do think that we have witnessed how impeachment can be mis-used as a political tool…that backfired on Clinton’s republican enemies.
I really thought that after Clinton’s impeachment (and I do think he should have been removed) the whole process should have been reevaluated…from the sleazy Congressmen to the silly robe Rehnquist wore. It was, indeed, a mess and an example of how not to handle an impeachment.
I greatly appreciate such a precise summary of the debate over impeachment and its history in this country.
I believe in the case of Clinton’s impeachment, it is important to note that President Clinton committed no minor crime. He committed perjury. The facts of the case are irrelevant. Surely a witch hunt was being conducted and the “special prosecutor” law had indeed run amok. However, that is no excuse for lying on the witness stand.
After all, as recently as March 6, 2007, we have used the principle that lying under oath is one of the greatest offenses to the judicial system. Prosecutor Patrick Fitzgerald was quoted by the New York Times as saying:
“We cannot tolerate perjury,” he said, adding: “The truth is what drives our judicial system. If people don’t come forward and tell the truth, we have no hope of making the judicial system work.” (http://www.nytimes.com/2007/03/06/washington/06cnd-libby.html?pagewanted=2&ei=5070&en=7589678ed05e1e03&ex=1175659200)
Now, let’s put that aside and focus on the other issues you raised.
I believe there is room for dialogue, but I would question the idea that courts are the proper place for impeachment of lower court judges. The problem here is that judges are placed by the President with the advice and consent of the Senate. To say that the Judicial Branch would then have the sole power of removal would mean that the will of the people, as represented by their choices in election, would be thwarted by those who are otherwise immune from removal.
I agree it might be possible that the Congress has better things to do with its time, but perhaps there is a different approach. This one thwarts the general Constitutional framework that all power somehow flows from the people. Congress is elected by the people (or the people’s representatives, before popular election of the Senate). The President is elected by a college chosen by state legislatures (so, while the system is more popular than it was, it always flowed from representative elections). Judges are put in place by a representative body and the President. And the Executive Branch and Judicial Branch could only be removed by a representative body (the Congress).
It’s not perfect, but it seems, as you point out, the process was considered innately political. The flaw in the Framers’ reasoning was simple. They never figured on the Senate becoming a fully politicized body. Yet, that has happened with the popular election of the Senate. The quote provided assumes the Senate will feel insulated, because they were to be elected by other representative bodies, who one might feel can be reasoned with in a higher manner than 30 second TV commercials. The fact that the Judicial Branch is so highly politicized is largely due to the changeover to the popular election of the Senate (perhaps the greatest mistake in amending the Constitution to date?).
As of now, we run the process on hope alone. We hope that the majority in the Senate does not reach sufficient mass to overthrow an elected President. That didn’t happen for Clinton and not now for Bush. Perhaps, however, it could. The GOP reached 55 seats, which is quite a large margin by modern standard. We can conclude it would take 60 seats to remove all modern parliamentary blocks (the modern Senate filibuster).
So in the end, I agree this is something that needs to be looked at, but I highly doubt any change is to come. The process to amend the Constitution in this matter would be fraught with disagreement. I also wanted to go on the record against the idea that the judiciary is best equipped to remove officers appointed by a political, representative body.
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