To End a Presidency
Page 7
These and other examples make clear that impeachment and criminal punishment are distinct. Some lawyers, however, continue to insist that an official can be impeached only if the official has committed a crime. Although this restrictive position enjoyed a measure of support in the early 1800s, it has long since been widely and convincingly rejected. Indeed, the first successful judicial impeachments of the twentieth century—Judge Robert Archbald (1913) and Judge Halsted Ritter (1936)—both involved misconduct that didn’t break any criminal laws.
The argument that only criminal offenses are impeachable is deeply and profoundly wrong. It misunderstands the Constitution, US history, and the nature of criminal law in important ways. Nonetheless, even having died a thousand deaths, this theory staggers on like a vengeful zombie. Democrats and Republicans alike have invoked it when doing so suited their partisan needs—and then have flip-flopped when that seemed more expedient.
The wrongness of this claim offends us as scholars and troubles us as citizens. A relentless focus on criminality distorts public dialogue about impeachment. It also sabotages productive discussion about improper (though noncriminal) uses of presidential power. Because some analysts continue to conflate impeachability and criminality, we will offer a detailed explanation of why their position is wrong. This analysis, in turn, illuminates the nature of impeachment and impeachable conduct.
Starting with history, there’s virtually no evidence that the phrase “high Crimes and Misdemeanors” was widely understood in the 1780s to mean indictable crimes. As our review of the Constitutional Convention revealed, the Framers were concerned with abuse of power, corruption, and injury to the nation. At no point did any delegate link the ultimate safeguard against presidential betrayal to intricacies of a criminal code (or to judge-made common law crimes). In fact, delegates did the opposite, invoking an array of broad and adaptable terms as grounds for removal. When those grounds were narrowed to Bribery and Treason, the phrase “high Crimes and Misdemeanors” was added to guarantee that impeachment could address any “great and serious offence.”
This goal aligned with American approval of Edmund Burke’s ongoing campaign in Parliament to impeach Warren Hastings, the former governor-general of India. Burke had charged Hastings with rampant subversion of England’s unwritten constitution. He had not alleged any particular crimes. And it seems that some Framers agreed with Burke. While explaining why treason and bribery alone were too narrow as grounds for impeachment, Mason warned that “Hastings is not guilty of Treason.”25 He thus made clear that Hastings should have been impeachable—tacitly rejecting a constitutional standard that would prevent Congress from punishing noncriminal abuses of power.
A more capacious view of impeachment is also supported by other sources. For example, that conclusion accords with colonial practice—which, for all its variation, occasionally roamed beyond the boundaries of criminal law. It’s also supported by evidence from numerous state ratification conventions. There, delegates sweepingly opined that impeachment would be appropriate if an official “deviates from his duty” or “dare[s] to abuse the power vested in him by the people.”26
This position was echoed by leading minds of the era. In Federalist No. 65, Hamilton argued that impeachable offenses are defined by “the abuse or violation of some public trust.” In that sense, he reasoned, “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.”27 A few years later, Constitutional Convention delegate James Wilson echoed Hamilton’s point: “Impeachments, and offences and offenders impeachable, come not… within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects.”28
These teachings are confirmed several times over by the Constitution’s structure. Consider again the Bill of Attainder Clause, which bans legislative punishment of particular individuals. If impeachments were exclusively about proving that the president committed a specific crime, then the Impeachment Clause would be at war with the basis for that rule, since it authorizes a form of trial and punishment by legislature. This tension dissipates, however, if impeachment is seen as a legislative remedy for any great and dangerous offense against the nation. Viewed in that light, impeachment is a fundamentally political process with a forward-looking and preventive focus. It is not a process through which Congress decides whether a particular statutory crime occurred and whether removal is warranted as a punishment.
So, too, with the Double Jeopardy Clause, which protects against being tried twice for the same crime. The Impeachment Clause expressly contemplates that an official, once removed, can still face “Indictment, Trial, Judgment and Punishment, according to Law.” In other words, after a president is kicked out, he can be indicted and punished for any crimes he committed while in office. It would be inconsistent with the spirit of the Double Jeopardy Clause to envision criminal trial and punishment for the president after removal, but to insist that he can be removed only if Congress first finds that he did commit a crime. The better view is that impeachment does not necessarily say anything at all about criminal liability.
The Pardon Clause further supports this interpretation. Under that clause, presidents have the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (italics added). The categorical exception for impeachment is crucial to preserving checks and balances. If the president’s top advisors commit evil deeds at his behest, he can save them from criminal punishment—but not from impeachment and removal. On that question, Congress always has the final word. This ensures that dangerous officials can at least be removed from positions of public trust. Further, in the improbable event that the president attempts to pardon himself for committing federal crimes (which likely would be unlawful), he can’t thereby preclude his own impeachment. This limitation, like the others we have discussed, rests on the unique nature of the impeachment power.
The problems with treating only indictable offenses as “high Crimes and Misdemeanors” aren’t limited to constitutional law. They multiply when we consider the history and structure of criminal law, which are often overlooked in accounts of impeachment.
One possible view is that presidential misdeeds are impeachable only if they constitute federal crimes. But that view is hard to take seriously when measured against original public understanding. As early as 1812, the Supreme Court made clear that federal crimes are limited to those specifically defined by Congress. And the Framers, who took a narrow view of federal power in this field, didn’t think that Congress was authorized to create a broad criminal code. As Professor William J. Stuntz has emphasized, the Constitution contained few explicit grants of power to create federal criminal law. These provisions were limited to “counterfeiting, piracy, ‘offenses against the law of nations,’ and crimes that occur within the military.”29 While further criminal prohibitions might have been seen as “necessary and proper” to carrying out Congress’s other powers, Stuntz notes that “Madison and his friends did not expect that category to be large.”30
Their prediction was a good one. Through the early years of the Republic—really, until the mid-twentieth century—federal criminal law was thin and patchy. It covered relatively few categories of offenses, and it was infrequently and irregularly enforced by tiny federal agencies. Where federal criminal codes did apply, they often had arbitrary, jagged limitations meant to respect now-obsolete boundaries on Congress’s constitutional power. As Justice Story noted in 1833, many federal offenses were punishable only when committed “in special places, and within peculiar jurisdictions, as, for instance, on the high seas, or in forts, navy-yards, and arsenals ceded to the United States.”31
This haphazard character would have made federal criminal law an improbable tool for defining “high Crimes and Misdemeanors.” Why would the Framers limit the impeachment power to federal crimes, while sim
ultaneously giving Congress hardly any power to create criminal law? Indeed, the early Congresses—filled with Framers—didn’t even try to create a body of criminal law addressing many of the specific abuses that motivated adoption of the Impeachment Clause in the first place. Nor has any subsequent Congress purported to pass a criminal statute generally stating which acts are impeachable when committed by the president.
More recent developments don’t change that bottom line. Although the scope of federal criminal law is now much broader, it still leaves many important issues to the states. Further, as we explained earlier with respect to bribery, the evolution of federal law has been shaped by many factors irrelevant to impeachment. For instance, in developing criminal law for the entire nation, legislators and courts have worried about chilling speech, destabilizing politics, inviting arbitrary enforcement, disrupting federalism, and appearing tough on crime. To the extent these concerns even bear on the definition of impeachable offenses, they apply very differently. Rules that properly bind a sitting president may not always be generalizable into federal crimes.
In the alternative, one might say that “high Crimes and Misdemeanors” occur when the president violates state criminal law. Here, however, we risk flipping federalism on its head: invoking state law to supply the content of the federal Impeachment Clause would grant states a bizarre primacy in our constitutional system. Especially given that impeachment is crucial to the separation of powers within the federal government, it would be strange for states (not Congress) to control when this power may be used. Further, if state criminal law governs, then the same act by the president might be impeachable if committed in New York and not if committed in Alabama. But why should quirks and loopholes of state doctrine block Congress from removing an out-of-control president? An examination of state criminal codes hardly inspires confidence that they’re well-suited to the task: many state law books are riddled with arbitrary and outmoded rules, some of which criminalize ordinary, innocuous acts like swearing in public or spitting on sidewalks.
A more fundamental problem with reliance on criminal codes is that neither state nor federal criminal law is built for impeachment. Legislators have little incentive to craft criminal codes with attention to acts that might imperil the nation if committed by the president. Instead, legislators have responded to a very different set of concerns while deciding what conduct to criminalize. Indeed, even if a legislator wanted to draft a statute defining all impeachable crimes, she’d likely find the task impossible. As Justice Story cautioned in 1833, “political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.”32
Insisting on the equation of criminality and impeachability produces many other absurd results, too. The practical mismatch between these categories is often demonstrated with two hypotheticals sketched by Professor Black. First, “suppose a president were to move to Saudi Arabia, so he could have four wives, and were to propose to conduct the office of the presidency by mail and wireless from there.”33 If the president commits no crime en route, is he truly unimpeachable? Surely not. As Professor Akhil Amar has noted, “gross dereliction of duty imperiling the national security and betraying the national trust might well rise to the level of disqualifying misconduct.”34
We can look beyond Black’s absentee leader to confirm his underlying intuition. Imagine a president who announces that Catholicism shall be the official religion of the United States and orders all agencies to act accordingly; or one who promises to pardon any person who violates the legal rights of undocumented migrants; or one who promises to endorse any company that fires employees who voted against him; or one who announces that no woman or person of color is welcome in the White House as long as he occupies the presidency. Hypotheticals like these illustrate the point that some noncriminal acts must be impeachable.
Now consider Black’s second hypothetical, which shows the inverse. This one hasn’t aged well since 1974, when gays and lesbians lived in fear of the law: “Suppose a president did not immediately report to the nearest policeman that he had discovered that one of his aides was a practicing homosexual.”35 That would be “misprision of a felony”—a serious crime in its own right. Yet only a madman would deem it an impeachable offense.
In short, while it’s sensible to seek out neutral principles that can discipline our political debates, criminal codes aren’t up to the task. Even if we erroneously limited ourselves to their requirements, we’d still have to make tough, value-laden judgments about which crimes qualify as impeachable. And no principle internal to criminal law can sensibly make those judgments for us.
There’s an important lesson here. In 1974, it would have been criminal—but not impeachable—for the president to conceal same-sex intimacy by White House aides. A century earlier, given prevailing laws and norms, it would have been criminal and at least conceivably impeachable for the president to abet such conduct. Yet in 2018, there’s nothing criminal or impeachable. To the contrary, the only potentially impeachable offense on these facts would be to enforce an anti-sodomy law in the first place, thus defying clear Supreme Court precedent.36
This is just one of many examples showing that beliefs about criminality and impeachability aren’t set in stone. They can diverge (or converge) in new and surprising ways, responding to fluid legal doctrine and views on appropriate uses of executive power.
Of course, the distinction between criminality and impeachment doesn’t mean that criminal law is irrelevant. Our criminal codes identify many terrible acts that would surely warrant removal if committed by the chief executive.
Evidence of criminal conduct is relevant to impeachment determinations in other ways, too. When a president stands accused of murder, perjury, or other familiar crimes, the American people may be less likely to view this conduct as debatable or forgivable. It’s hard for a president to say that he acted reasonably, or in good faith, if he broke a criminal law. Further, proof that a crime occurred can feel comfortingly objective. It relieves us of the need to exercise judgment and casts a technical gloss over bitterly divisive political questions. Within the blast furnace of political combat, we know that criminal codes identify forms of wrongdoing that society has forbidden in general—not just when faced with a specific presidential scandal. In that respect, as scholar Jane Chong observes, criminal law can serve as “a helpful reference point that we must always track to ensure we do not get so turned around that we stray into reactionary partisanship.”37
These are all appropriate ways to reference criminal law. But it must not be forgotten that criminal codes are only a guide to wrongful acts; they aren’t a comprehensive listing. The Constitution doesn’t compel us to let a corrupt or tyrannical leader off the hook just because his offenses are not directly addressed by the US Code. Impeachment is mightier and savvier than that.
This point is important because there are major societal downsides to obsessing over criminality in impeachment debates. That tendency has encouraged partisans to warp the criminal law to fit their latest debates over presidential conduct. Even more troubling, it has stifled the public’s ability to speak constructively about desirable, debatable, and detestable uses of presidential power. Jamming these debates into a criminal law framework often obscures what’s really at stake. In most cases, a focus on criminality makes these issues seem legalistic and dry—the province of fancy lawyers, not ordinary Americans. Perhaps as a result, when faced with dueling claims that the president is a crook, people often retreat to their political predispositions. That reflexive race to partisan defaults can thwart efforts to sustain dialogue about whether the president’s acts accord with our country’s traditions and values. It can also accelerate a disturbing trend toward the criminalization of political differences. Eventually, the blurring of impeachment and criminality may atrophy the public’s ability to evaluate whether a president’s acts
, criminal or not, truly pose a threat to our democratic system.
Unnerving as it may be, we can’t fall back on criminal law in hopes of escaping the judgment that impeachment requires of us. Attempting to do so can be actively harmful to our politics. The Constitution compels us to grapple with threats that transcend crimes. It creates a powerful presidency that can directly affect every man, woman, and child touched by the United States government. If the president betrays our trust—whether or not through acts that qualify as crimes—he can destroy everything we hold dear. Impeachment is about perceiving when that occurs and responding to the disaster. When we think about “high Crimes and Misdemeanors,” we must ask: Will we survive this presidency, and, if we do, what kind of nation will we have become?
That question loomed over Congress on February 24, 1868. After years of conflict with Andrew Johnson, the House of Representatives finally—and decisively—approved eleven articles of impeachment against him. Nine of them charged Johnson with violating the Tenure of Office Act, which restricted the president’s power to remove cabinet members during the term of the president who had appointed them. Johnson allegedly violated this law by firing Secretary of War Edwin M. Stanton. The other two articles of impeachment charged Johnson with denying Congress’s authority and bringing it into disgrace.
As many at the time recognized, the House had put forth a weak case. The Tenure of Office Act was unpopular and likely unconstitutional; moreover, Stanton had been appointed by Abraham Lincoln, so it wasn’t even clear that Johnson had violated the act by removing him. The vague allegations about disrespecting and disgracing Congress, in turn, struck many as mere political rhetoric. Ultimately, after some high-velocity wheeling and dealing that we’ll revisit in later chapters, the Senate fell a single vote short of convicting. Johnson got to serve out the rest of his term.