End Run Around "High Crimes and Misdemeanors"
The meaning of “high crimes and misdemeanors” in the Constitution’s impeachment clause has bedevilled generations of lawyers and politicians, and citizens. An interesting new piece by a Cornell Law Professor, Josh Chavetz, suggests that what is an impeachable offense can be gleaned from another angle — by the comparison between impeachment and assassination.
Chafetz starts with Ben Franklin’s comment during the Constitutional Convention that there had to be a peaceful way to remove a bad president or else he would have to be assassinated.
Chafetz takes seriously the link between assassination and impeachment, as do I. After all, impeachment and removal from office is the decapitation of one branch of government by another. He examines the assasinations of Julius Caesar, Charles I, and Abraham Lincoln, and compares them to the impeachment trials of Andrew Johnson and Bill Clinton. Pretty interesting approach.
His conclusion is that when a leader is subverting the constitution of a state, either assasination (in Charles I’s case) or impeachment is appropriate. He concludes that Johnson and Clinton were correctly acquitted by the Senate and not removed from office, because they were charged with “high crimes and misdemeanors” that did not threaten the constitution of the nation.
I like the overall analysis in the article, because “high crimes and misdemeanors” has proved so opaque over the years. I was sorry to see, however, that he cites John Kennedy’s Profiles in Courage as though its evaluation of the Johnson impeachment is worthy of consideration; Kennedy’s treatment of the impeachment is slapdash and incomplete, and is not entitled to much attention.
I also was sorry that he did not consider whether there were viable grounds for impeaching Andrew Johnson that were not included in the impeachment articles against Johnson. I agree with him that the actual impeachment articles — mostly based on the Tenure of Office Act — did not establish good grounds for removing Johnson. But I do think Johnson refusal to enforce the Reconstruction Acts approved by Congress, which included affirmatively thwarting those statutes from becoming effective, would have provided a valid basis for removal.
And that’s where “high crimes and misdemeanors” rears its ugly head. That phrase has made congressment and senators want to see a crime when they consider impeachment. Instead of looking at the big picture, as Chafetz suggests, they can get a very narrow perspective.
Just for fun, I’ll throw out a hypothetical: What if the President committed murder while in office? What if the motivation was personal emnity and had nothing to do with the President’s exercise of his office, thus not tending to subvert the Constitution? Could he still not properly be impeached?
This is removed from your concern here, but I wonder what you think of the order of succession. Yale Law School Professor Akhil Reed Amar questions whether it makes sense to have the Speaker of the House be third in line–his point (according to family members who heard him speak) was that one could view this as an invitation for a coup d’etat, since if the house is held by the opposing party–think John Boehner if everything goes south this November–all it takes is for the President and Vice President to be knocked off. I gather he would favor making the Secretary of State third in line…
Returning the order of succession to the Cabinet makes some sense to me, though not because I particularly fear a coup d’etat (though perhaps I should). I think such successors are probably superior because they are very likely to be of the same party as the president who appointed them, or at least to share that person’s political views. When a successor holds views antithetical to the elected president and the elected president’s party — as was true with Andrew Johnson when he succeeded Lincoln — there is a lot of resentment among those who supported that president and party. The Republicans in 1865-68 tended to feel like they had been cheated, particularly when Johnson started to fire Republicans from federal offices, which played a major role in the impeachment crisis.