The Impeachment Power
As we head deeper into this troublesome election season, we can’t help but notice the paradox that voters are discontented with the two candidates for president that they themselves have chosen. Perhaps this is evidence of Mencken’s observation that democracy amounts to little more than the audacious belief of the collective wisdom of individual ignorance.
My purpose here is not to reflect on the state of our political parties or our nominating system, but rather on a central problem of political life: how do you staff political offices, and how do you get rid of people who occupy those offices? There are different ways to accomplish this – violent overthrow or hereditary succession among them – but in our system we settle on election for some of the offices. Keep in mind that the vast majority of political offices in the US are held by appointment, not by election. At best, we elect the appointers, even though most appointees far outlast those who do the appointing.
In our main essay this week we help readers understand the pardoning power and its central role in restoring trust and comity in our political system by tempering justice with mercy. In this essay, I want to look at the impeachment power, an important mechanism for pursuing justice when the electoral system is unable to provide immediate relief. Elections are the main, and very imperfect, way we rid the system of corrupt politicians. On occasion, the corruption or misdeeds are so consequential that we can’t wait until the next election cycle to take care of the problem. Thus the impeachment power.
What we refer to as the impeachment power is a bit of a misnomer. When the House impeaches an individual it merely prepares the case for trial in the Senate. The trial, not the impeachment, decides whether the officer should be removed from office. I should add here that impeachment applies not only to elected officials but to unelected ones as well. Indeed, the Constitution stipulates that it applies to all “civil officers,” without defining exactly what that means. But we do know that of the House’s 21 successful impeachment proceedings since ratification only 8 have resulted in removal from office, all of them federal judges.
The language of the impeachment clause indicates both the nature of this two-fold process, and also the conditions for its application: “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.” Most readers understand the meaning of bribery and treason, but the phrase “high crimes and misdemeanors” creates no small amount of confusion. For one thing, they seem to be on opposite poles of a continuum. Secondly, it’s hard to square some of the legal definitions with the absolute nature of the impeachment power. Would we remove someone from office for a traffic violation, which, legally speaking, is a misdemeanor? This raises the third issue, namely, that the terms "high crimes and misdemeanors" lack clear definition.
This should not surprise us. Like many provisions in the Constitution, the impeachment power evolved over centuries of fitful application. The English Common Law tradition provided the most important backdrop for the writing of the Constitution. Within that tradition, the impeachment power developed as a way of balancing the power of Parliament against that of the king, a process hundreds of years in the making. Having lived through the regicide of Charles I, execution of the king seemed an extreme measure for asserting Parliament’s authority. And while Parliament couldn’t remove a king from office, it could remove his courtiers. England’s debates from the 17th century involving “court” and “country” politics deeply influenced the formation of our Constitutional system, involving questions about how “the people” could assert their independence against an overweening and entrenched ruling class that often operated in its own interests.
The meaning of the impeachment power was never fixed. Madison highlights the problem in Federalist #37, . There is no way to define clearly the limits of power or to delineate the relationship between competing authorities. What enlightenment we do have results from trial and error, the residuals of which get passed on from generation to generation. Nonetheless, Madison writes, “The experience of ages,” even with the benefit of the “combined labors of the most enlightened legislatures and jurists” proves inadequate in “delineating the several objects and limits of different codes of laws.” Given the indefiniteness of the object, the faultiness of our perception, and our clumsiness in communicating, the “precise extent of the common law … remains still to be clearly and finally established.” All our efforts at legislation, no matter how precise and “passed on the fullest and most mature deliberation” will still produce a meaning “more or less obscure and equivocal” until that meaning is “liquidated and ascertained by a series of particular discussions and adjudications” that occur over time. For that reason, any governmental provision, including the Constitution itself, has no fixed meaning, but its meaning results from the conflicts surrounding its application. [For obvious reasons, Madison's reasoning here poses a problem for Constitutional originalists.]
This is especially true of the impeachment power, the meaning of which, Justice Joseph Story observed already in the early 19th century, would slowly develop over time. Parliament had once defined the impeachment power as applying to “any offenses against the system of government,” a charge sufficiently vague that it required the following refinements that resulted from actual disputes: abuse of office, misapplication of public funds, neglect of duty, corruption, efforts to abridge Parliament’s power, and any violation of the public trust. Hamilton repeats this last example in his reflections on impeachment 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.” [emphasis added] As with all things, the devil would be in the details.
Just as Parliament used impeachment to restrain the monarch, so too Hamilton, despite his advocating for executive power, saw the impeachment power as essential for giving Congress a “check in the hands of that body upon the encroachments of the executive.” Much of his argument over the impeachment power involves who should play what role in the process, especially since the Constitution generally allows for more cooperative interplay between the President and the Senate than the President and the House – the only popularly elected branch of government. Given their concerns that impeachment not become a tool for resolving policy disagreements, the writers of the impeachment clause also had to acknowledge the noxious role of parties. Under the original Constitution the Vice-President could be a member of the other party, and, furthermore, the Vice-President presided over the Senate, leading the framers to realize that allowing the Vice-President to preside over impeachment proceedings created a genuine conflict of interest. For this reason they required an independent actor, the Chief Justice, to preside in the Senate’s trial.
Important to remember: the impeachment process is not a legal proceeding but a political one. While the clause “high crimes and misdemeanors” does encompass actual illegal acts, it is not limited to them. As stated, those involved in the creation of the Constitution believed it applied to any acts injurious to the state, legal or not, or abuses of public trust. Given the intense concern over potential “corruption,” the impeachment power may well be considered a primary hedge against it, no matter how notoriously difficult corruption was to define; but the framers realized that as difficult as corruption is to define, it is even harder to root out. Corruption spreads gradually but pervasively; by the time we can see it we may no longer be able to identify its source. The longer it works, the more difficult to erase. Corruption is to politics what rust is to an automobile: that slow corrosive process by which the body's integrity is compromised and eventually destroyed.
As we indicated, the meaning of the impeachment clause has changed, and perhaps been clarified, in its application over time. The first serious effort made to impeach a president was John Tyler in 1842, who members of Congress thought was abusing his veto power by applying it to policy questions rather than Constitutional ones. One adage in politics is that if you’re going to shoot at the king you better make sure you hit him. The failure to impeach Tyler further emboldened him and subsequent presidents as well. This is an example of the impeachment power applying to non-criminal behavior, as was the impeachment and removal in 1912 of Judge Robert Archbald. He had, according to House transcripts, not violated any criminal code, but had used his office “to generate profitable business deals with potential future litigants in his court.” The Tyler impeachment, never successfully accomplished in the House, goes to our general point: the fact that we take it for granted that presidents may use the veto power for policy ends indicates how an unsuccessful effort emboldens rather than restrains executive power. Once permissible it becomes acceptable, and once acceptable, assumed.
Another indicator that impeachment is not a criminal proceeding is that there are no standards for burden of proof. The Constitution doesn't stipulate any, and Congress has never settled on any. If we think of criminal cases having a “beyond a reasonable doubt” standard and civil cases having a “preponderance of evidence” one, then the House has typically operated as a civil trial and the Senate as a criminal one. But, again, these standards are not fixed and can easily be changed by the governing body while in the actual process of impeaching. For that reason, impeachment proceedings will typically fall along partisan lines, mainly because different members of Congress will adopt different standards concerning both what conduct is impeachable and what evidentiary standard to employ, and will adjust those according to partisan interests.
Sadly, we have many recent examples of the use, or what some would characterize as the abuse, of the impeachment power, the results of which fell along partisan lines. The party that controls the executive will, if the other party controls Congress, view impeachment proceedings as an effort to overturn the results of an election. Rather than wait four years for another opportunity to win the presidential election, the Congressional party will short-circuit the process. It is, of course, a Constitutionally permissible proceeding, but often employed to non-Constitutional ends. One might say that Congress is free to proceed accordingly, but imprudent to do so. One writer has referred to this as "Constitutional Hardball": the tendency of political actors to take the disputes of "normal" politics and raise the stakes by making them system-level crises.
Here’s the rub: licit efforts to overturn the results of elections may lead to illicit efforts to do so. Ask a January 6th protestor as well as a critic of the protest which party was trying to overthrow the government and you’ll get two different answers. But the January 6th protestor will likely see the election results as operating on a continuum with the, in their judgment unjust, impeachment processes. Something can be legal and be unjust at the same time. (For the record, this space is not defending the actions of those who entered the Capitol on January 6th; we’re simply trying to understand the motives independent of partisan prejudices.)
Realizing the likelihood that the impeachment power will fall subject to partisan whims, often involving high stakes, Hamilton linked the pardoning power to other extreme political measures, including impeachment. While the impeachment power might often be partisan, the pardoning power could be used to heal partisan divisions. These partisan divisions would be especially consequential during periods of rebellion or insurrection. Hamilton in Federalist #74: "But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall." This goes to one of our central points we make here: there are different ways of trying to overturn the results of an election, and impeachment and insurrection are on a continuum; although not equally permissible from a Constitutional standpoint, they may be regarded as such from a political one. President Biden has no obligation to pardon those convicted (none for insurrection) for the events of January 6th, but it would be a magnanimous gesture that might, in Hamilton's words, "restore the tranquillity of the commonwealth."
The use of the impeachment power remains a Constitutionally permissible and viable tool, but questions of political prudence dictate when and to what ends it should be employed. One could just as rightly argue that it doesn’t get used nearly enough than that it gets used too often. It is one of the few tools in the Congressional toolbox that can be used to rein in executive power, but it is not typically a proportionally sensible one, often amounting to killing a fly with a sledgehammer. Plus there's a simple logical question: assume you successfully remove the president from office: then what? Ending up with the other party's second choice might be a more unsavory outcome. The devolution of the impeachment power into a partisan weapon has meant that its ineffectiveness will likely increase executive power and privilege rather than restrain it. You only get so many shots, and you better make sure you can make them count.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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