Impeachment- a Citizen's Guide

by Cass R Sunstein

  And then Hamilton emphasized:

  The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.

  We can see here a chain with three links: a single magistrate; election every four years; and impeachment. The first two links are familiar to every American. The third is, of course, much more obscure.

  The decision to have a unitary president had three distinct motivations, all relevant to the question of impeachment. First, it would allow the executive to be energetic and actually capable of getting things done. If the executive were plural, it would get bogged down in internal debate. As Hamilton put it: “That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”24

  It is true that in government, paralysis has its charms. It can be favorable to liberty. But from Hamilton’s standpoint, a paralyzed executive might turn out to be incapable of action, and so no executive at all.

  Second, a unitary president is more accountable. With a single magistrate, you know exactly whom to blame if things go wrong. Here again, Hamilton nailed the point:

  [O]ne of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. . . . But the multiplication of the Executive adds to the difficulty of detection. . . . It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.25

  When the president is unitary, there is no such suspense. The third and final point is that a unitary executive is more likely to be centralized and coordinated. If one person is in charge, he can better ensure that the executive branch is properly managed and that those who work for him are working together.

  The unitary executive must be contrasted with the legislature, which was, and remains, at an opposite pole. Hamilton was onto this point as well, and so let’s hear him one more time: “In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.”26

  There’s a lot in those two sentences. Hamilton was fine with a degree of paralysis in Congress. Obstruction of “salutary plans” would be unfortunate, but it was a price worth paying if it served “to check excesses in the majority.” Congress consists of two houses, with different kinds of accountability: members of the House of Representatives (the more populist branch) are elected every two years, and members of the Senate (the more insulated branch) every six. The American constitutional order is meant to create a deliberative democracy, in which debate and discussion accompany accountability. This is not merely a system of majority rule, through which majorities get to do as they like simply because they are majorities. Reason-giving is central, and a deliberative democracy gives reasons.

  In Congress, the sheer number of representatives, combined with bicameralism, would promote deliberation, which would occur among people who were very different from one another. The framers viewed the system of bicameralism as a way of ensuring increased “deliberation and circumspection,” in large part because it enlists diversity both as a safeguard and as a way of enlarging the sheer range of arguments. The bicameral system, along with the concern for deliberation and circumspection, played a key role in debates over impeachment.

  chapter 3

  “Shall Any Man Be Above Justice?”

  While most of the delegates supported the idea of a unitary executive, they were alert to the counterarguments, and their desire to avoid a king was undiminished. So the question was: How do you get rid of a president who turns out to be a miscreant?

  That question in turn raised four further questions: (1) Should impeachment be available? (2) If so, on what grounds? (3) Who, exactly, gets to undertake impeachment? (4) What are the consequences of impeachment, or in other words, is a further step necessary to remove a president (or other officials) from office? In Philadelphia, the delegates had an extensive background with which to approach these questions.

  British Antecedents

  At least since 1635, impeachment had been discussed intensely in the colonies.1 Before and after independence, Americans adopted concrete, and quite novel, understandings of what the impeachment weapon was all about. Something remarkable happened here, because in England, impeachment had fallen into near-disuse in the seventy years before the Constitutional Convention. Despite that fact, John Adams went so far as to count impeachment among the fundamental “Rights and Privileges of Englishmen.”2

  Adams had a point. In 1679, nearly a hundred years before the American founding, it was proclaimed in the House of Commons that impeachment was “the chief institution for the preservation of the government.”3 Edmund Burke described impeachment as the “great guardian of the purity of the Constitution.”4

  Those are strong words, and they have a specific background. The question was this: Were the King’s ministers, who had immense power, accountable to the English parliament, or were they accountable only to the King? You can think of impeachment as an unambiguous answer to that question: the English parliament. Impeachment was a movement in the direction of replacing monarchical absolutism with something closer to parliamentary supremacy. In that way, impeachment was, in England, a major step in the direction of republican self-government. Adams, Madison, and Hamilton were aware of that.

  More specifically, the English idea of impeachment arose largely because its objects were free from the reach of conventional criminal law. Parliament made the ministers and functionaries of the King subject to impeachment for public offenses. The phrase “certain high treasons and offenses and misprisions” appeared as early as 1386, in an impeachment proceeding, but on one account, the precise term “high crimes and misdemeanors” did not appear until 1642, after which it was regularly used.5 Under English law, the House of Commons took the term “misdemeanor” to refer to distinctly public misconduct, including but not limited to actual crimes.6 Thus “high Crimes and Misdemeanors,” the standard basis for impeachment, represented “a category of political crimes against the state.”7 Impeachment was a political weapon, used to challenge official wrongdoing. The House of Commons would make the decision whether to impeach, and if it chose to do so, a trial would be held in the House of Lords. The penalty for conviction could be severe; it could even include execution.

  In English law, there was some ambiguity in the use of the word “high.” Did the term refer to the seriousness of the offense, or to the nature of the office against which the proceeding was aimed? Some of the actual practice suggests the term referred to both: for impeachment to be appropriate, a holder of high office had to do something terrible. As practice unfolded, “high Crimes and Misdemeanors” could mean serious crimes, but it could also mean serious offenses that were not in technical violation of criminal law. Egregious misconduct, as in the form of committing the nation to “an ignominious treaty,” could count as a legitimate basis for impeachment in England.8

  For present purposes, the more important point is
that the great cases involving charges of impeachable conduct in England usually involved serious abuses of the authority granted by public office, or, in other terms, the kind of misconduct in which someone could engage only by virtue of holding such an office. Consider the following charges, drawing on a list compiled by Raoul Berger from actual impeachment cases, and invoking the term “high crimes and misdemeanors”:

  applying appropriated funds to purposes other than those specified

  procuring offices for people who were unfit and unworthy of them

  commencing but not prosecuting suits

  allowing contracts for greatly needed powder to lapse for want of payment

  thwarting Parliament’s order to store arms and ammunition in storehouses

  preventing a political enemy from standing for election and causing his illegal arrest and detention

  losing a ship through neglect to bring it to mooring

  assisting the Attorney General in drawing a proclamation to suppress petitions to the King to call a parliament

  accepting 5,500 guineas from the East India Company to procure a charter of confirmation9

  It is clear that in cases of this kind, impeachment proceedings were brought for the abuse of the distinctive authority vested in public officers. The most highly publicized and well-known cases fell within the category of the egregious misuse of official powers. But the actual English practice was somewhat more wide-ranging.

  The American Reformulation

  When the framers met in Philadelphia, many of them knew about the English practice, but they had a long history of their own, going back to the early seventeenth century. From that period until the founding, the idea of impeachment was adapted to an increasingly different culture, and reformulated as a result of the rise of republican thinking. If you are curious about the origins of American exceptionalism, that reformulation is a pretty good place to start.

  As the American tradition developed, the concern was abuse of official power, just as in England—but it was understood in distinctly republican terms. In the colonies, impeachment was a mechanism by which representative institutions could start the pro cess for removing executive and judicial officers for intolerable wrongdoing. There were early efforts to impeach people for purely political reasons, as captured in the idea that officials could be impeached for violations of “popular will” or for showing a “dangerous tendency.” But before the Revolution, the dominant idea was that impeachment would be limited to serious criminality or the abuse or misuse of the responsibilities of high office.

  In the crucial years between 1755 and the signing of the Declaration of Independence, impeachment was used as a weapon against abuses of authority that came from imperial policy. In this way, impeachment was a tool for the exercise of popular sovereignty, ensuring a close link between impeachment and republicanism in the colonies.

  In Massachusetts, for example, Chief Justice Peter Oliver was impeached for obeying an order from the crown.10 In Pennsylvania, the assembly asserted that its principal powers were “those of making laws, granting aids to the Crown, and redressing the grievances and oppressions of the People.” Impeachment was an important mechanism for that republican redress. While many of the colonists were acquainted with English practice, “its American unfolding had led to a new meaning for impeachment,” write Peter Hoffer and Natalie Hull in their authoritative treatment. “The people, through their own representatives, not virtually through the Commons in England, had the right and power to oust wrongdoers in office.”11 There is no question that in the colonies, violations of criminal law were not the only basis for impeachment. The focus was on “palpable misconduct and willful misuse of power.”12 In this qualitatively distinctive category, criminality was neither necessary nor sufficient.

  By the 1770s, colonial Americans came to see impeachment as the mechanism by which the people could begin the process for ousting official wrongdoers, understood as those who betrayed republican principles, above all by abusing their authority through corruption or misuse of power. In that sense, it was a legal instrument for carrying out the aims of the coming Revolution.

  Immediately after independence was won, several state constitutions included a mechanism for impeachment. Such a mechanism could be found in the very first constitutions of Delaware, Massachusetts, New York, North Carolina, and Pennsylvania (and also Vermont, which had a constitution but did not become a state until 1791). During the 1780s, impeachment was embraced as well by Georgia, New Hampshire, and South Carolina.13 Delaware was the first state to specify categories of impeachable offenses, referring to “offending against the state by maladministration, corruption, or other means, by which the safety of the commonwealth might be endangered.”14 In Massachusetts and New Hampshire, officers could be impeached for misconduct or maladministration.15 In New York, impeachment was available against all officers for “mal and corrupt conduct” while in office, with a two-thirds vote required; it was followed by a trial in a special court created for the purpose.16

  The central conclusion is that impeachment was established as “an appropriate instrument of republican rule.”17 But there was division and controversy about who, exactly, would be trying the impeachment. Following the British practice, states tended to adopt a two-step process. A representative institution was authorized to undertake impeachment proceedings. If an official were impeached, he would not be removed; impeachment itself was akin to an indictment. An impeached official would then face a trial in some separate institution. In 1783, Thomas Jefferson built on this model in suggesting the need for a court of impeachments in Virginia, consisting of a mix of judges and legislators.18 Madison vigorously objected to Jefferson’s proposal and argued that any trial should be undertaken within a more unambiguously judicial process.19

  After national independence, there was a great deal of activity under the new provisions. Impeachment was used against officials who had engaged in fraud, extortion, bribery, mismanagement of funds, and even bullying of ordinary citizens.20 Neglect of duty and incompetence were also taken to be sufficient grounds for impeachment—but only if they rose to a level that was thought to endanger the state. Many people believed that one of the virtues of the impeachment mechanism was that, in view of its availability, “people did not have to take their complaints against officeholders into the streets.”21

  None of this was foreign to the delegates at the Convention. Indeed, Hamilton, Madison, George Mason, Edmund Randolph, Gouverneur Morris, James Wilson, William Paterson, Rufus King, Elbridge Gerry, Hugh Williamson, and Charles Pinckney were experts on impeachment. It is no accident that they were the most influential participants in the debates.

  Impeachment at All?

  While the impeachment question didn’t get a ton of attention, the attention it got tells us a ton. Essentially all of the discussion focused on impeachment of the president, though as noted, the constitutional provision extends to all civil officers.

  The early plans submitted for the delegates’ consideration pointed in different directions. The Virginia plan, drafted by Madison, offered not a word about presidential impeachments, but generally allowed the nation’s judiciary to oversee “impeachments of any national officers.”22 Puzzlingly, it did not specify what national officers could be impeached for. Under the New Jersey plan, the chief executive could be removed by Congress, after a majority of state executives (governors) applied for removal.23

  Hamilton offered his own plan, which included a “Governor” who would have “supreme Executive authority” and “serve during good behaviour.” Hamilton’s plan would allow the Governor (along with Senators and all officers of the United States) to be impeached for “mal and corrupt conduct.” Impeachments would be “tried by a Court to consist of the judges of the Supreme Court chief or Senior Judge of the superior Court of law of each state.”24 (What a mess�
�probably not Hamilton’s best idea.) Building on the Virginia plan, Edmund Randolph offered an early reference to impeachment, supporting the creation of a special judiciary to hear “impeachments of any National officers.”25

  In early June, the question was vigorously debated. The widely admired Roger Sherman, who had signed both the Declaration of Independence and the Articles of Confederation, took an extreme position. He claimed that Congress should be authorized to remove the president whenever it wanted to do so.26 Thomas Jefferson described Sherman as “a man who never said a foolish thing in his life,” but almost all the delegates agreed that this approach would be crazy.27 Sherman had fifteen children. Maybe he was tired.

  The problem was that if Sherman’s approach were adopted, the whole system of separation of powers would be at risk. The president needed a degree of insulation and independence. George Mason made the decisive objection, contending that Sherman’s approach would turn the executive into “the mere creature of the legislature.”28

  In a variation on the New Jersey plan, John Dickinson offered an institutional fix, suggesting that Congress should be able to remove the president, but only if a majority of state legislatures requested it.29 (Dickinson was apparently thinking of something akin to a vote of no confidence.) The delegates rejected that suggestion too, in favor of an approach supported by North Carolina’s Hugh Williamson, which would allow removal by “impeachment & conviction” on the basis of “mal-practice or neglect of duty.”30 That language is pretty broad; it seems to suggest that impeachment could occur for either bad actions (malpractice) or bad omissions (neglect). And indeed, Williamson drew directly from his home state, where impeachment was available for “offenses against the public interest which need not be indictable under the criminal law.”31