Impeachment- a Citizen's Guide

by Cass R Sunstein

  According to an old story, Thomas Jefferson, always an enthusiastic fan of self-government, questioned George Washington for having supported the idea of two legislative chambers, with the Senate potentially serving as a brake on the judgments of We the People.

  Washington’s response was simple: “Why did you just now pour that coffee into your saucer, before drinking?”

  “To cool it,” answered Jefferson, “my throat is not made of brass.”

  “Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”3

  For the whole process of impeachment and removal, the senatorial saucer cools it.

  Is the standard for conviction in the Senate the same as the standard for impeachment in the House?

  Technically, yes. In practice: close, but not quite.

  Yes, because for impeachment, as for conviction, it is necessary to show treason, bribery, or some other high crime or misdemeanor. It’s the same standard for both.

  Not quite, because all by itself, impeachment has no material consequences, whereas conviction results in removal. In light of that fact, the Senate will likely demand clearer and stronger proof than will the House. Recall that the Senate is acting essentially as a court.

  Are the constitutional procedures really republican?

  You could argue about that one.

  Republicanism is a pretty abstract commitment. If you insist on rule by the people, you might insist that if a majority of the House of Representatives thinks that someone should be removed from office, that ought to be plenty enough. But there is another view, well stated by Hoffer and Hull. “The two-thirds requirement for conviction in the Senate was the capstone of the republicanization of impeachment and trial procedure,” they write. “It ensured that the Senate would be as thoughtful and deliberate in its hearing and determining of cases as the House of Lords, without any of the aristocratic trappings of that English body.”4

  Is impeachment a criminal proceeding?

  Not really, in the sense that even if a president is impeached and removed for criminal activity, he faces no criminal punishment. He loses his job, not his liberty. If he is impeached for criminal activity and then convicted, he is subject to criminal prosecution in ordinary courts after he leaves office. (See below.) And as we have seen, the president may be impeached for actions that are not crimes.

  Suppose that an impeachment is unconstitutional. Can federal courts stop it? Can the Supreme Court intervene?

  No. The Constitution puts impeachment and conviction in the hands of Congress, not the judiciary. If an impeachment and conviction violate constitutional standards, there is no legal remedy.

  I say this with a lot of confidence, but candor compels an acknowledgment: it’s not quite 100 percent clear. (More than 99 percent, but not quite 100 percent.) Suppose that a president is impeached on grounds that obviously fall short of the constitutional requirements, and suppose he goes to federal court for a declaratory judgment, saying exactly that and asking the court to intervene. Why, you might ask, can’t courts vindicate the Constitution? Isn’t that their job?

  The technical answer is that some issues are treated as “political questions,” which means that the Constitution commits them to resolution by other branches of the government. The Court has come very close to ruling, and may even be taken to have ruled, that impeachment is an example.5 Of course we should all fervently hope that no president will ever be impeached or removed from office on grounds that fail to meet the constitutional standard. American history suggests that such a removal, at least, is unlikely, and so the political safeguards of the impeachment process have worked. (As we have seen, the Clinton and Johnson impeachments violated the constitutional standard, but neither president was convicted.)

  What is the role of the chief justice of the Supreme Court?

  Under the Constitution, the chief justice has no role in the impeachment proceedings in the House, but he does preside over the trial in the Senate. In the Johnson impeachment, Salmon Chase was the presiding judge; William Rehnquist presided over the Clinton impeachment. But the role of the presiding judge is quite limited. He oversees the trial, and he can resolve technical questions, but he is not likely to have any authority to push the outcome in his preferred direction.

  In the two presidential impeachment proceedings in American history, the chief justice was a pretty minor player. Because it is such a landmark event to see the chief justice presiding in the Senate, people pay a lot of attention to him, but the crucial decisions are made by the senators.

  Suppose that the president is incapacitated. Maybe he has suffered some terrible physical injury, illness, or impairment; maybe he is losing his mind. Can he be impeached?

  No.

  It’s hazardous and usually foolhardy to disagree with James Madison on a point of constitutional law, but I’m doing just that. You may recall that at the Convention, Madison pointed to incapacity as one of the grounds for impeachment. But when he did that, he was speaking of an earlier version of the text, one that might well have accommodated that interpretation. By itself, incapacity is not treason, bribery, or any other high crime or misdemeanor.

  If a president is incapacitated, you might ask, can anything be done? The simple answer is that the Twenty-Fifth Amendment was designed for exactly that problem. But you might persist: suppose that the president and his team refuse to invoke the Twenty-Fifth Amendment, even though to any objective observer, it’s clear that the president is unable to perform the duties of the office. What then?

  The answer is that impeachment might well turn out to be available, not because of presidential incapacity as such, but because of egregious abuse or neglect of duty (a high misdemeanor), which can be shown by actions and omissions. If a president is unable to make decisions, or to make rational decisions, and if a pattern of terrible misconduct demonstrates that fact, then the House can impeach him.

  Does the prospect of impeachment affect presidents while they are in office?

  A good question, on which we don’t have a lot of evidence, but the answer is almost certainly yes.

  During the Iran–Contra affair in the Reagan era (look it up, if you like), the specter of impeachment was raised in Reagan’s presence. In a 1984 meeting in the White House Situation Room, members of his national security team discussed whether, how, and how much money could be channeled to the Nicaraguan Contra rebels. (Congress had forbidden direct funding.) Secretary of State George Schultz repeated a warning he had heard from James Baker that “if we go out and try to get money from third countries, it is an impeachable offense.”6

  A personal anecdote: while I was in the Obama administration, Congress threatened not to raise the debt limit, which could have created serious economic difficulties for the United States and the world. If the debt limit had not been raised, the United States might have defaulted on its debts, potentially causing chaos in the international economic system. Some lawyers have argued that if Congress fails to act, the president has the authority to raise the debt limit on his own. I was involved in some discussions in the White House about this question, and in my view that argument has force (even though most constitutional specialists do not accept it).

  But some of the president’s legislative advisers warned that if President Obama did raise the debt limit on his own, he might be subject to a serious impeachment inquiry, especially with Republicans in the majority in the House. I have no idea whether President Obama was affected by that speculation or not, but the possibility certainly did get his advisers’ attention.

  Here, as always, our framework is helpful. If a president raised the debt limit on his own, there would be a plausible argument for impeachment only if he had no good-faith legal argument that he was entitled to do that. In my view, any president would have such a good-faith argument. Still, the prospect of impeachment is likely to concentrate the presidential mind.
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  If the president has committed an impeachable offense, are members of the House of Representatives obliged to vote to impeach him? Are senators obliged to vote to convict him?

  Yes and yes. I think.

  The reason for the two yeses: in my view, the Constitution contemplates that if the president really has committed treason, bribery, or some other high crime or misdemeanor, he must be impeached and then removed from office. Even if the president is a terrific person and has done terrific things, he cannot stay in office if he has been bribed or committed treason.

  The reason for “I think”: prosecutors have discretion. If you have violated the law, a prosecutor might not proceed against you if, in the circumstances, it just doesn’t make sense for her to do so. For citizens, that is a great guarantor of liberty. (Ask whether you have violated the law over the last twenty years—any law at all. Maybe you have?) By way of analogy, We the People, acting through our elected representatives, might have prosecutorial discretion with regard to the impeachment power as well. Maybe we can decide: he did a terrible thing, but we won’t exercise our discretion to remove him from office. Maybe we can think: he’s a bum, but he’s our bum, and we kind of like him.

  But under the constitutional plan, we can’t make that decision. I think.

  Isn’t impeachment just a matter of politics, and if so, why should we focus so much on the legal standard?

  What a cynical question.

  Sure, a Democratic House is more likely to impeach a Republican president than to impeach a Democratic president. Sure, a Democratic House might impeach a Republican president for constitutionally inadequate reasons, and a Republican House might refuse to impeach a Republican president even if the constitutional test is clearly met. Because any president is likely to enjoy loyal support from his own party and a significant percentage of voters, there will be a large political dimension to any impeachment inquiry. As we have seen, that’s an unmistakable lesson of history. (By the way, the rise of political parties followed ratification of the Constitution; the framers did not anticipate it.)

  But let’s not overreact. Ours is a Rule of Law, which means that the law matters, which means that the legal standard matters, even if it is not always obeyed. During the Clinton impeachment, those who violated the legal standard, and made hash of it, nevertheless worked hard to show that they were obeying it. The French thinker Francois de La Rochefoucauld proclaimed: “Hypocrisy is the tribute vice pays to virtue.”7 If the Rule of Law sometimes produces hypocrisy, at least we know what counts as vice and what counts as virtue.

  An understanding of the legitimate grounds for impeachment imposes a disciplining effect on the political process. It is in part because the standard is high that political opponents of presidents have so rarely resorted to the impeachment mechanism. Despised presidents, and bad presidents, have hardly ever been impeached, which is a tribute to the Rule of Law.

  Can a president be subject to a civil lawsuit on the basis of his official acts?

  No, he cannot.

  The Supreme Court ruled in favor of absolute immunity in Nixon v. Fitzgerald, decided by a 5 to 4 vote in 1982.8 Emphasizing that the president “occupies a unique position in the constitutional scheme,” the Court concluded that in light of “the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” It follows that the president enjoys full immunity so long as he is being sued for actions taken within the domain of his official responsibilities. This rule applies to both sitting and former presidents. Pointedly, the Court added: “A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment.”

  Can a president be subject to a civil lawsuit while in office, when the basis for the lawsuit does not involve his official acts?

  Yes, he can.

  The Supreme Court so ruled in Jones v. Clinton, decided unanimously in 1997.9 The theory of the decision is that nothing in the Constitution explicitly forbids such civil actions against the president; that presidential immunity from such actions would have to be an inference from more general provisions of the Constitution; and that there is no provision from which immunity can appropriately be inferred. The Court reconciled its conclusion with that in Nixon v. Fitzgerald by emphasizing that in that case, official acts were the basis for the lawsuit: “In context, however, it is clear that our dominant concern was with the diversion of the President’s attention during the decision-making process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.”

  It’s not absolutely clear that the Supreme Court was right in Jones v. Clinton. As in Nixon v. Fitzgerald, so too here: in light of “the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Whether or not the lawsuit involves official acts, there is a reasonable argument that it would seriously interfere with his ability to perform his constitutionally specified duties. Handling a lawsuit is a significant burden. For many people, it can be a full-time job. Can the president really do what he is supposed to do, if he is facing a lawsuit?

  The Supreme Court acknowledged the concern. It referred to “the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance.” But it answered that the risks were not that serious and that the legal system could handle them: “Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President’s needs or unfaithful to the tradition—especially in matters involving national security—of giving ‘the utmost deference to Presidential responsibilities.’”

  It’s true that many years after Jones v. Clinton, we cannot be absolutely sure that the current Supreme Court would allow lawsuits against a sitting president. But the Court is reluctant to overrule its own precedents, and so we can be sure enough.

  Can a president be criminally prosecuted while in office?

  The Supreme Court has not answered that question, so the technical answer is: unclear. My own answer is different: no. Admittedly, it’s a tough one, a kind of constitutional brainteaser.

  The Constitution’s impeachment provisions can be read to suggest that, in the context of presidential wrongdoing, the appropriate response is removal from office, not criminal prosecution, at least while the president is serving. Recall the text: “Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.” You could easily take this language to suggest a temporal separation: first impeachment, then judgment and removal, then prosecution.

  In Federalist No. 69, Alexander Hamilton seemed to read the provision exactly that way: “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 word “afterwards” seems to mean you can’t indict and try a sitting president. He has to be impeached and removed first.

  True, this interpretation isn’t inevitable. You could read the text to mean only that the consequence of conviction is removal from office, and that a convicted president can be prosecuted—but to be silent on, and so not to resolve, the question whether a president can be prosecuted for crimes while he in office. On that interpretation, nothing in
the Constitution rules out a prosecution of the president for, say, obstruction of justice or for perjury. He could be subject both to prosecution and to impeachment.

  Maybe. But even if this view is convincing, there is another reason, building on Nixon v. Fitzgerald, to say that the president cannot be criminally prosecuted while in office. Unlike a civil action, a criminal prosecution imposes a unique kind of stigma and threat, such that the president’s ability to undertake his constitutionally specified tasks really would be at risk. Under Nixon v. Fitzgerald, there is an argument that this conclusion is right if a president is being prosecuted on the basis of official acts: if a president cannot be subject to a civil lawsuit for such acts, it might follow that he cannot be criminally prosecuted for them.

  If so, the real question, raised by Jones v. Clinton, is whether he can be criminally prosecuted for unofficial acts—say, those in which he engaged before becoming president, or those that were not part of his official responsibilities. My own conclusion is that, because of the unique nature of a criminal prosecution, a president should have absolute immunity in such cases as well—at least while he is president.

  True, we could imagine cases that would call this conclusion into question. Suppose that the president is prosecuted for income-tax evasion or for disorderly conduct. Suppose too that he could not be impeached for such offenses. In that event, impeachment is not the alternative remedy. And would such a prosecution really jeopardize the president’s ability to undertake his constitutional responsibilities? These are testing cases, but sometimes bright lines are a lot better than case-by-case judgments.