Impeachment- a Citizen's Guide

by Cass R Sunstein

  Those who argued in favor of ratification seemed to suggest a pretty broad understanding of the legitimate grounds for impeachment—a bit broader than those who framed the provision in Philadelphia. That’s no surprise. Their goal was to defend the document and to suggest that it was sufficiently republican and did not come close to creating a monarchy. To get the document ratified, it was necessary to convince the public that it did not betray the goals of the Revolution and that We the People would have enough control over the president. Opposition was fierce.

  Those who rejected the proposed constitution argued that it represented a repudiation of the ideals for which Americans had fought; to them, it was a wholesale departure from the political commitments of 1776.2 One way to answer that charge was to emphasize the power of impeachment. If we are interested in knowing what reasonable readers of the Constitution thought that it meant in 1787, the arguments in defense of ratification are probably the best source.

  While the voices in the ratification debates were not entirely consistent and often less than precise, they can be fairly summarized in this way: if a president were to engage in some egregious violation of the public trust while in office, he could be impeached, convicted, and removed from office. To be sure, the violation would have to take the form of some action or omission that could count as a high crime or misdemeanor. And to be sure, we have to specify what is meant by this idea—but the ratification debates are helpful there as well.

  Hamilton and More

  As always, Hamilton is a terrific place to start. In Federalist No. 65, he explained that the “subjects” of impeachment involve “the abuse or violation of some public trust. 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.”3

  That might seem vague and bland, but it has real content. “High crimes and misdemeanors” are abuses or violations of what the public is entitled to expect. Moreover, we are speaking not of private misconduct (theft, assault, failure to pay rent) but of distinctly political offenses. In that way, Hamilton’s claims should be taken as an echo of the textual idea, on which the delegates were unanimous at a late date, that the relevant high crimes and misdemeanors must run “against the United States.”

  Note too that Hamilton, who was never casual with words, was respecting Mason’s concerns. He did not say that impeachment could be based only on treason, bribery, or a criminal offense. He scrupulously avoided any claim of that kind. Far more broadly, he emphasized “the abuse or violation of some public trust.” In his account, the phrase appeared to work as a simple summary of the technical term “high crimes and misdemeanors.”

  The Constitution’s supporters, defending the new executive in the ratification debates in various states, generally spoke in the same terms. They described impeachment as a check on serious presidential wrongdoing, taking the form not of mistakes of judgment or of controversial political choices but of terrible abuses of power.

  Some people were worried about the possibility that the president might be too friendly to other nations. They emphasized that impeachment would serve as a check on corruption and corrupt treaties (that is, treaties that would be favorable, by design, to other nations and not the United States). One of the Constitution’s defenders went so far as to urge that “the president is amenable himself for his conduct, and liable, like any other public officer, to be impeached for bad a[d]ministration.”4 In light of the debates at the Convention, and the bulk of comments during ratification, that is too broad, but it captures some of what We the People were hearing.

  In Virginia, Madison responded to the concern that a president might seek to secure ratification of a treaty by exploiting the quorum requirement (two-thirds of the senators who are present), thus allowing senators from a small number of states to injure others, whose senators were not in attendance. Madison said, “Were the President to commit any thing so atrocious as to summon only a few states, he would be impeached and convicted, as a majority of states would be affected by his misdemeanor.”5 From the modern standpoint, the particular hypothetical might seem a bit crazy, but it reflects a broader principle. No crime is necessary. If the president is acting in an “atrocious” way that harms most of the states, he is committing a “misdemeanor,” even if no violation of the law is involved.

  George Mason worried over the breadth of the president’s pardon power: “He may frequently pardon crimes which were advised by himself. . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” Madison answered: “There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.”6 In Madison’s view, “This is a great security.” If the president uses the pardon power in a corrupt way, by pardoning crimes that he has himself advised (and thus sheltering the wrongdoer), impeachment is the remedy.

  Also in Virginia, Edmund Randolph explained his judgment that the Constitution did not make the president unduly powerful. “At the end of four years, he may be turned out of office.” Pointedly, he added, “If he misbehaves he may be impeached, and in this case he will never be re-elected. I cannot conceive how his powers can be called formidable.”7 In a brief remark a week later, he linked impeachment with the emoluments clause, emphasizing “another provision against the danger . . . of the President receiving emoluments from foreign powers. If discovered he may be impeached.”8 From the standpoint of the founders, the link made perfect sense. The emoluments clause protects the nation against officials who have been compromised by receiving gifts from foreign nations. Impeachment supplies the remedy in the event of a violation.9

  There was also significant discussion in North Carolina. The most informative remarks came from James Iredell, a highly respected lawyer who was later appointed to the Supreme Court. Iredell said, “I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other.”10 But he also stated that any man who was “a villain” should be “ignominiously punished” and indeed that a “president must certainly be punishable for giving false information to the Senate.” He added: “He is to regulate all intercourse with foreign powers, and it is his duty to impart to the senate every material intelligence he receives.” If he “has concealed important information which he ought to have communicated, and by that means induced them to enter into measures injurious to their country,” he has committed a misdemeanor.11

  Iredell stressed that with respect to the power of impeachment, “the occasion for its exercise will arise from acts of great injury to the community.”12 But he also emphasized limits on that power: “God forbid that a man, in any country in the world, should be liable to be punished for want of judgment. This is not the case here. . . . Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous.”13

  In New York, a delegate spoke in broadly Hamiltonian terms: “For the abuse of these powers he alone is answerable, and by the representatives of the people he may at any time be impeached.”14 In Massachusetts, where the American Revolution began, some defenders of the Constitution drew a different connection, seeing the impeachment power as a means to protect liberty. James Sullivan, writing influential essays under the name of “Cassius,” proclaimed: “Thus we see that no office, however exalted, can protect the miscreant, who dares invade the liberties of his country, or countenance in his crimes the impious villain who sacrilegiously attempts to trample upon the rights of freemen.”15 In my view, this point is central, even defining, because it connects the power of impeachment with the American Revolution itself. On this account, a violation of liberty or rights is an impeachable offen
se—even if it is not itself a crime.

  Elbridge Gerry, George Mason, and Edmund Randolph, who refused to sign the Constitution in Philadelphia (in part because it lacked a Bill of Rights), published letters under the joint pseudonym “Americanus.” The first of the collected Americanus essays broadly asserts that the president’s power “is limited in such a manner as to preclude every apprehension of influence and superiority. Should he, however, at any time be impelled by ambition, or blinded by passion, and boldly attempt to pass the bounds prescribed to his power, he is liable to be impeached and removed from office; and afterwards he is subject to indictment, trial, judgment, and punishment according to law.”16

  That’s informative—but again, it goes beyond what most people were saying. Almost every American president has, on more than one occasion, passed the bounds of his power, in the sense that his administration has done something that it is not lawfully entitled to do. Some of those actions were probably a product of ambition or passion. President Franklin Roosevelt unlawfully sent arms to England to help that nation defend itself against Hitler’s aggression. President Truman unlawfully seized the nation’s steel mills to maintain production during the Korean War. Americanus was speaking rhetorically, and not really capturing the meaning of the constitutional text. But the rhetoric is informative; it tells us what the American people were being told.

  Post-Ratification Clues

  We also have some important clues after ratification. During the first Congress, there was widespread fear that a president would abuse his authority by removing executive officers without adequate reason. Madison responded that if he did so, “he will be impeachable by the House before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal.”17

  Whoa. That’s a broad conception of the legitimate grounds for impeachment. It also creates a puzzle: Wasn’t Madison the one who specifically opposed the idea that the president could be impeached for “maladministration”?

  The best way to resolve the puzzle is to emphasize that Madison was speaking not of maladministration generally, but of a specific act of maladministration, in the form of “wanton” discharge of executive officers who were “meritorious.” In Madison’s view, that would be a misdemeanor. Again, it wouldn’t be a crime—but as we have seen, a president can be impeached for offenses that are not crimes.

  Others spoke in the same vein. In his great 1791 Lectures on Law, James Wilson observed, “In the United States and in Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.”18 He added that under the Constitution, “impeachments, and offenses and offenders impeachable” should not be thought to come “within the sphere of ordinary jurisprudence. They are found on different principles; are governed by different maxims; and are directed to different objects.”19 Justice Joseph Story wrote in similar terms, describing as impeachable those “offences which are committed by public men in violation of their public trust and duties. . . . Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character.”20

  William Rawle, another early commentator, went so far as to say that the “legitimate causes of impeachment . . . can have reference only to public character, and official duty. . . . In general, those offences which may be committed equally by a private person, as a public officer, are not the subjects of impeachment.” In his view, “Murder, burglary, robbery, and indeed all offenses not immediately connected with office . . . are left to the ordinary course of judicial proceeding.”21

  This was a contested view (and I shall contest it), and in light of the history, it is plausible to say that murder and the like would be a legitimate basis for impeachment. But there was general agreement that impeachment was designed to initiate a process to remove from office those who had abused their public power.

  Where We Are

  From the founding era, the central ingredients of a framework are now in place. Impeachment is available for egregious abuses of official authority. Some crimes do not count as such, because they are essentially private (failing to pay taxes, punching someone, speeding) or because they are not sufficiently serious. Some offenses that are not crimes are nonetheless impeachable—punishing political enemies, trampling on liberty, deciding to take a year off, systematically lying to Congress and the American people. Such actions count as “high misdemeanors.”

  In some cases, we can say that bad conduct just isn’t impeachable, because it is outside of the category of acts that qualify as such. (Some presidents have been awful administrators, but they were not impeachable for that reason.) In some cases, we can say that bad conduct is unquestionably impeachable, because it is obviously inside that category. In the hardest cases, we have to make a judgment of degree: Is the misconduct or the abuse serious enough? But even then, the concerns of the founding period give us orientation.

  With respect to the Constitution, it’s best to avoid two mistakes. The first is to think that words are more precise and more conclusive than they actually are. The Constitution protects “the freedom of speech” and makes the president “Commander-in-Chief,” and those words have real meaning. But still, life turns up tough problems. Even in its republican context, the phrase “high crimes and misdemeanors” leaves some unanswered questions. You can stare at those words all you want, and read Hamilton, Madison, Mason, and all the rest, and you won’t squeeze out enough meaning to solve every puzzle.

  The second mistake is to conclude, from the existence of unanswered questions, that we are really at sea, or that high crimes and misdemeanors are whatever the House of Representatives says they are. We aren’t, and they aren’t. Steeped in republicanism, and with the monarchical legacy in mind, the framers and ratifiers gave us a framework. That’s a lot.

  chapter 5

  Interpreting the Constitution: An Interlude

  Does the understanding of the founding generation really matter? Should twenty-first century Americans really care about what people believed in the late eighteenth century? Why should we pay such close attention to dead people? Isn’t that a form of ancestor worship?

  For some people, the answer to such questions is obvious: the Constitution’s meaning is settled by the understandings of those who ratified it. If you are confident about that answer, you might think that you do not need to explore controversies about how to interpret the Constitution. True, you might acknowledge that the understandings of the ratifiers leave some questions open. Even so, those understandings are the place to start. But for other people, the historical inquiry is puzzling. In their view, the Constitution’s meaning should be settled by us, not by people from the eighteenth century, and it is for current generations to decide on the meaning of the impeachment clause.

  To understand the role of history, we need to offer a few words about some of the deepest debates in constitutional law, which separate people who are both smart and reasonable. During those debates, people who are usually quite calm can get pretty angry with one another. At the very least, they disagree intensely.

  For example, Justice Thurgood Marshall thought it entirely clear that the meaning of the Constitution was not frozen in time. As he wrote in 1987, “I plan to celebrate the bicentennial of the Constitution as a living document.”1 He didn’t think that we should answer constitutional questions by asking what people thought at the time of ratification.

  To Justice Antonin Scalia, by contrast, the very idea of a “living document” was anathema. He believed that the meaning of constitutional provisions was fixed when they were ratified. As he said in 2008, “If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say—which is probably whatever the people would want it to say—you’ve eliminated the whole purpose of a
constitution. And that’s essentially what the ‘living constitution’ leaves you with.”2

  For orientation: everyone agrees that the text of the Constitution is binding.3 Almost everyone thinks that we should be interested in the original meaning of the text. But some people, like Justice Scalia, purport to make the original meaning authoritative, and others, like Justice Marshall, feel free to depart from it. With respect to our rights and the operations of American government, there’s a big difference between the two camps.

  If these debates seem a bit academic, they also give life to the question of what it means to keep a republic. Sincerely and in good faith, Marshall and Scalia answered that question very differently. For impeachment, Scalia’s view makes things relatively straightforward. And for impeachment, I think that Marshall would agree with him. But it’s going to take a few pages to explain why.

  “The Dead Have No Rights”

  Those who believe in a living Constitution claim that the document contains abstract and open-ended terms whose meaning legitimately evolves in ways that the founding generation could not have imagined. Sometimes they enlist one of the greatest thinkers of that very generation, Thomas Jefferson, to support their argument:

  Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. . . . [T]he dead have no rights.4