9. 1 Debate on Articles of Impeachment, Hearings of the Committee on the Judiciary, House of Representatives, Ninety-Third Congress, 2nd Session (July 27, 1974), 301.
10. United States v. Nixon, 418 U.S. 683 (1974).
11. This suggestion is broadly consistent with the analysis in Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
12. 120 Congressional Record 27297 (1974); 1 Debate on Articles of Impeachment, Hearings of the Committee on the Judiciary, House of Representatives, Ninety-Third Congress, 2nd Session (July 30, 1974), 489.
13. On the meaning of “good faith,” see note 27 below.
14. 120 Congressional Record 27296 (1974).
15. Ibid.
16. 1 Debate on Articles of Impeachment, Hearings of the Committee on the Judiciary, House of Representatives, Ninety-Third Congress, 2nd Session (July 19, 1974), 447.
17. 120 Congressional Record 27296 (1974).
18. I am assuming that on the facts, the charges are true. Of course it is always open to a president to contest the facts.
19. Kenneth Starr, The Starr Report: The Official Report of the Independent Counsel’s Investigation of the President (New York: Public Affairs, 1998), 179.
20. Starr’s own behavior remains a mystery. He is a friend of mine, I like and admire him, and I believe that however mistaken he was, he acted in good faith. He is a person of great integrity, and he has had a distinguished career. I cannot believe that he acted for narrowly partisan reasons. My speculation is that his intense, multiyear focus on President Clinton and on his misconduct ended up distorting his judgment (badly). There is a lesson there for prosecutors and investigators of all kinds.
21. United States Congress House Resolution Impeaching William Jefferson Clinton, President of the United States, for high crimes and misdemeanors. One Hundred Fifth Congress, 2nd Session, H. Res. 611 (1998).
22. 144 Congressional Record 12040 (1998).
23. United States Congress House Resolution Impeaching William Jefferson Clinton.
24. Myers v. United States, 272 U.S. 52 (1926). There the Court ruled that the president is allowed to fire executive officials whenever he likes, and that Congress lacks the power to allow discharge of such officials only when the Senate advises and consents.
25. Tenure of Office Act, ch. 154, § 1, 14 Stat. 430, 430 (1867) (repealed 1887).
26. Hinds and Cannon, Hinds’ precedents, vol. 3, Sec. 2420, 863.
27. To qualify as “good faith” as I am understanding the term, an argument must be offered with a subjective belief that it is correct, and it must also be objectively reasonable. Johnson’s argument meets both of those requirements. In light of the constitutional backdrop, a good-faith argument, as I am understanding it, should be enough to absolve a president of the charge of having committed a high crime or misdemeanor. It is not a “misdemeanor” to act on the basis of a sincere and reasonable belief that one is entitled to do so. Note that if a president sincerely believes that an argument is right, but if the argument is silly or wholly implausible, the test is not met: A president’s sincere but ridiculous belief that he has the authority to engage in some lawless action should not insulate him from a finding that he has committed a misdemeanor.
28. Myers v. United States, 272 U.S. 52 (1926).
29. Congressional Globe, Fortieth Congress, Second Session 1400 (1868).
30. 2 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, On Impeachment by the House of Representatives for High Crimes and Misdemeanors (Washington, D.C.: GPO, 1868), 496–497.
31. United States House of Representatives, “List of Individuals Impeached by the House of Representatives,” http://history.house.gov/Institution/Impeachment/Impeachment-List/.
32. Ibid.
33. For general discussion, see William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Free Press, 1992).
34. A qualification is that judges have tenure “during good behavior,” a provision that does not, of course, apply to the president. See U.S. Constitution, art. 3, sec 1. The president may not be removed for “bad behavior.” Thus it might be suggested that with respect to judges, the “good behavior” provision qualifies or works hand in hand with the impeachment clause. It does so by allowing impeachment of judges on somewhat broader grounds—bad behavior, not simply high crimes and misdemeanors, or perhaps high crimes and misdemeanors understood, in the context of judges, to include bad behavior.
But this argument is not convincing. Judges may not be removed from office for bad behavior; they may be removed only for high crimes and misdemeanors. The function of the “good behavior” clause is not to give Congress broader power to remove judges from office; it is simply to make clear that judges ordinarily have life tenure. There is no authority in Congress to remove judges who have not engaged in “good behavior.”
7 TWENTY-ONE CASES
1. Lorenz Eitner, ed., Neoclassicism and Romanticism, 1750–1850: An Anthology of Sources and Documents (New York: Harper and Row, 1989), 121.
2. “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” U.S. Constitution, art. 2, Sec. 1.
8 THE TWENTY-FIFTH AMENDMENT
1. Both Lyndon Johnson and Richard Nixon were said, by some of their advisers, to have suffered breakdowns of some kind while in office. On Johnson, see the searing discussion in Richard Goodwin’s brilliant book, Remembering America: A Voice from the Sixties, rev. ed. (New York: Open Road Media, 2014).
2. U.S. Constitution, amendment 25.
3. Article 2 provides: “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.” This provision has evident ambiguity; the Twenty-Fifth Amendment sorts the situation out. Mostly.
4. Senate Report No. 1282, at 2–3 (1964), quoting John Dickinson’s question at the Constitutional Convention: “What is the extent of the term ‘disability’ and who is to be the judge of it?”; House of Representatives Report No. 203, at 4–5 (1965), quoting the same passage.
5. For overviews, see John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications (New York: Fordham University Press, 1992); John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment,” 79 Fordham Law Review (2010), 907; Adam R. F. Gustafson, “Presidential Inability and Subjective Meaning,” 27 Yale Law & Policy Review (2008), 459. Gustafson’s valuable essay makes the intriguing suggestion that section 3 and section 4 have different meanings. Under section 3, the president has unlimited discretion to declare himself unable, whereas the vice president and the cabinet, under section 4, may act only “when the President is so severely impaired that he is unable to make or communicate a rational decision to step down temporarily of his own accord” (at 462). For reasons given in the text, this interpretation of section 4 seems too narrow, and the interpretation of section 3 too broad; but it is an ingenious argument. My focus in this chapter is on section 4, on the theory that if the president invokes section 3 of his own volition, no one is likely to second-guess him.
6. Presidential Inability and Vacancies in the Office of Vice President: Hearings Before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary, Senate, Eighty-Eighth Congress, 91.
7. Ibid., 3.
8. Ibid., 3; see also Presidential Inability: Hearings Before the Committee on the Judiciary, Eighty-Ninth Congress, 71 (statement of John V. Lindsay, congressman from New York).
9. Presidential Inability and Vacancies in the Office of the Vice President: Hearing Before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary, Senate, Eighty-Ninth Congress, 20 (statement of Birch E. Bayh, Jr., senator from Indiana).
10. Presidential Inability and Vacancies in the Office of the Vice President: Hearings Before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary, Senate, Eighty-Eighth Congress, 119.
11. 111 Congressional Record (1965), 15381 (statement of Edward M. Kennedy, senator from Massachusetts).
12. 111 Congressional Record (1965), 7941 (statement of Richard H. Poff, representative of Virginia). Gustafson, note 5 above, uses comments of this kind as a basis for his suggestion that section 3 allows the president broader authority to declare himself unable than section 4 allows the vice president and the cabinet.
13. Presidential Inability: Hearings Before the Committee on the Judiciary, House of Representatives, 89th Congress, 240 (statement of Herbert Brownell).
14. John D. Feerick, Twenty-Fifth Amendment, 202.
9 WHAT EVERY AMERICAN SHOULD KNOW
1. U.S. Senate, Committee on Rules and Administration, “Rules of Procedure and Practice of the Senate When Sitting on Impeachment Trials,” Senate Manual, prepared by Matthew McGowan, One Hundred and Tenth Congress (Washington, D.C.: GPO, 2008), Rule 125.2.
2. Peter C. Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 106.
3. Moncure D. Conway, Republican Superstitions as Illustrated in the Political History of America (London: Henry S. King & Co., 1872), 47–48.
4. Hoffer and Hull, Impeachment in America, 106.
5. Nixon v. United States, 506 U.S. 224 (1993). In that case, the Court ruled that a highly technical question, raised as an objection to an impeachment proceeding, presented a political question and so was “nonjusticiable.” The Court also offered some broad language, suggesting that the whole impeachment process is one with which federal courts cannot interfere. It is true that in bizarre circumstances, in which a president is impeached and removed for palpably insufficient reasons, we cannot entirely rule out the possibility of judicial intervention. But don’t bet on that ever happening.
6. The conversations in the June 25, 1984, meeting of the National Security Planning Group Meeting were later made public. For a full transcript, see here: http://nsarchive.gwu.edu/NSAEBB/NSAEBB210/2-NSPG%20minutes%206-25-84%20(IC%2000463).pdf.
7. François VI duc de la Rochefoucauld, Réflexions ou Sentences et Maximes Morales, No. 218.
8. Nixon v. Fitzgerald, 457 U.S. 731 (1982).
9. Jones v. Clinton, 520 U.S. 681 (1997).
10 KEEPING THE REPUBLIC
1. Richard Henry Lee, “Funeral Oration on the Death of George Washington” (speech, Mount Vernon, VA, December 26, 1799).
2. Martin Luther King, Jr., “MIA Mass Meeting at Holt Street Baptist Church” (speech, Montgomery, AL, December 5, 1955), in The Papers of Martin Luther King, Jr., vol. 3, ed. Clayborne Carson (Berkeley: University of California Press, 1997), 73.
3. John Dewey, “Pragmatic America,” in The Essential Dewey: Pragmatism, Education, Democracy, vol. 1, eds. Larry A. Hickman and Thomas M. Alexander (Bloomington: Indiana University Press, 1998), 31.
4. On this count, the framers turned out to be wrong. They believed that the legislative branch was the most dangerous.
5. Whitney v. California, 274 U.S. 357, 375 (1927).
ABCDEFGHIJKLMNOPQRSTUVWXYZ
INDEX
The page numbers in this index refer to the printed version of this book. The link provided will take you to the beginning of that print page. You may need to scroll forward from that location to find the corresponding reference on your e-reader.
active liberty, 74
Adams, John, 23, 35
American Revolution, xiii, 1, 6–11, 20–25, 39, 175, 192
Articles of Confederation, 25–27
articles of impeachment: against Clinton, 101–104, 175, 178–179, 188, 192; against Johnson, 105–106; against Nixon, 89–98, 188–190, 193
Bannon, Steve, 204, 232, 248, 249, 251, 254
Barr, William, 187
Bayh, Birch, 143, 147
bicameral legislature, 32–33
bills of attainder, 47, 52
Boente, Dana, 226, 227, 229, 242–243
Botts, John Minor, 83–85
Breyer, Justice Stephen, 74
bribery, 30, 40, 46–47, 51–52, 59, 77, 107, 112, 119–120, 134, 158, 163. See also corruption British Parliament, 35–37, 154
Burke, Edmund, 35, 52
Buttrick, John, 175
cabinet: impeachability, 17; members impeached, 107, 110; power granted by Twenty-Fifth Amendment, 136–137, 141–146; president’s power to fire, 104–106
Carter, Jimmy, 82, 135
Christie, Chris, 237, 254, 256
civil law, 160–166
Clapper, James, 241
Clinton, Hillary, 180, 181, 196, 205, 217; hacked campaign email accounts of, 199, 200, 201, 202–203, 207, 208, 215, 231–232, 234, 235, 236, 244
Clinton, William J., 3–6, 99–103, 112, 125, 133, 155, 161–162, 164, 168, 178–179, 188
Coats, Daniel, 223–224, 225, 228, 230, 257
Cohen, Michael, 201, 208, 219, 245
Comey, James, 184, 205, 213, 214–215, 216, 220, 223, 225–227, 228; firing of, 230–231, 232, 233–246, 250, 252, 255; Senate Judiciary Committee testimony, 231–232, 234, 235, 243
Concord, Mass., 6–10
Constitution of the United States: articles related to impeachment, xiii, 16–17, 176, 177–178, 188; drafting of, 26–32; preamble, 26; ratification process, 54–60; title of nobility clause, 17
Constitutional Convention, 27–29, 41–53, 191, 192
corruption, 39–40, 43–49, 51–52, 57–59, 83–84, 102–103, 122. See also bribery
criminal activity, by president, 163–166
Dearborn, Rick, 217
Declaration of Independence, 175–176
Dempsey, Michael, 224
Dhillon, Uttam, 234, 235, 236
district court justices, impeached, 107–112
Dmitriev, Kirill, 204
Donaldson, Annie, 254
Dworkin, Ronald, 74–75
Eisenhower, Dwight, 142
Emerson, Ralph Waldo, 7–8
emoluments clause, 58
Federalist Papers, 2, 11, 29, 56, 85, 163
Flynn, Michael, 204, 207, 213–214, 217, 218, 242, 245, 250, 257
Ford, Gerald, 3
Frankfurther, Justice Felix, 73
Franklin, Benjamin, 1–2, 9, 44
Garfield, James, 81, 142–143
Gistaro, Edward, 224
good-faith argument, 92–93, 106, 124–127, 130, 133, 158
grounds for impeachment: American debates on, 37–40, beyond criminal acts, 36, 38–39, 43, 56, 123, 154; British antecedents, 34–37; hypothetical cases, 117–134; political nature, 56–58; as stated in Constitution, 46–48
Hamilton, Alexander, 2, 12, 29–32, 41–43, 50–51, 56, 85, 163
Henry, Patrick, 19–20
Hicks, Hope, 226–227, 248
high crimes and misdemeanors: ambiguity of phrase, 6, 51, 54, 63; Constitutional language, 17; earliest use of phrase, 35; Hamilton’s use of phrase, 30, 163; hypothetical cases of, 119–134; introduction of phrase to Constitution, 47–48, 52; limited to official powers, 36–37, 56; people’s power to interpret, 68, 72, 75–79
Holder, Eric, 229, 245, 247
Holt, Lester, 240, 241
&n
bsp; House of Representatives: discretion to impeach, 158; history of impeachments, 108–113; role in impeachment, 150–153, 187–188, 190–194; role in Twenty-Fifth Amendment process, 136–137
Hunt, Jody, 232, 234, 236, 247
hush money, 88, 95–96
impeachment clause, 12–13, 16–19, 41–50; misunderstandings of, 177–178
incapacitation, 135–148
incompetence, 40, 130, 144,
Internet Research Agency (IRA), 180, 198–199
Iran–Contra Affair, 157
Iredell, James, 58–59
Jay, Justice John, 82–83
Jefferson, Thomas, 40, 42, 66, 152–153, 171, 176
Johnson, Andrew, 3, 80, 82, 104–106
Johnson, Lyndon, 193n1
Jones v. Clinton, 161–162, 164, 178, 179
judicial impeachments, 107–112, 114–116
judiciary role in impeachments. See Supreme Court
Kennedy, Justice Anthony, 70–72
Kennedy, John F., 140, 142
Kennedy, Robert, 245, 247
Kilimnik, Konstantin, 203, 208
Kislyak, Sergey, 204, 207, 208, 213, 214, 238
Kushner, Jared, 202, 204, 233
Lavrov, Sergey, 238
Ledgett, Richard, 225
Lewandowski, Corey, 216, 217
Lewinsky, Monica, 6, 100–101, 178, 179, 188
Madison, James, vii, 27, 40–41, 44–52, 57–58, 61, 156
Main Intelligence Directorate of the General Staff (GRU), 180–181, 199–200, 202, 203
maladministration, 39–40, 47–48, 61, 76, 132, 191
Manafort, Paul, 182, 202, 203, 208, 218–219
Impeachment- a Citizen's Guide Page 26
