The Majesty and the Mystery of Impeachment
By Richard BlausteinJanuary 20, 2018
Impeachment by Cass R. Sunstein
The US Constitution is clear that the House of Representatives has the power to impeach, which is similar to an indictment, and prosecution occurs in the Senate. The punishment is removal from office. But a lot remains vague about impeachment. Sunstein considers different constitutional schools of interpretation — originalist, moral purpose, active liberty, and the living Constitution camps — and concludes that impeachment is best divined by its understanding at the time of the Constitution’s ratification in the late 18th century (i.e., through an originalist lens). “[W]ith respect to impeachment, the problems confronted way back in 1787 are not so different from those we confront today,” Sunstein writes. “[T]he abstract concerns that motivated [the Founders] — treason, bribery, egregious abuse of public trust or misuse of presidential authority — are no different from those that concern us. They are exactly the same.”
Pre-1789 antecedents have bearing, too, and Sunstein sketches impeachment’s roots in English law. Casting a Magna Carta light on early precedents, Sunstein describes how impeachment was a means by which Parliament could thwart the abuses of the Crown’s ministers, with impeachment in the House of Commons and a subsequent prosecution in the House of Lords. As early as 1386, the near-contemporary wordage, “certain high treasons and offenses and misprisions” was proffered, and in 1642 in Britain, the impeachment criterion lexically evolved to today’s constitutional standard of “high crimes and misdemeanors,” as recorded in a prosecution context. Moreover, a 1679 House of Commons proclamation specified impeachment as “the chief institution for the preservation of the government.” Importantly, the generality of impeachment undergirded for its being directed not at per se crimes, but at abuses of power and serious public trust violations, which, of course, would include crimes.
According to Sunstein, a further transformation occurred in colonial America with impeachment taking on an American republican form. From 1755 until the Declaration of Independence, the colonists found ways to set impeachment against officials whose conduct was an affront to the growing independent republicanism. “In that sense, it was a legal instrument for carrying out the aims of the coming revolution,” Sunstein writes.
During the postwar/pre-Constitution period in America, many state constitutions included strong impeachment provisions, and impeachment was used often during the Articles of Confederation period. Nonetheless, in 1787 when the delegates to the Constitutional Assembly in Philadelphia got around to impeachment, they were muddled and doubly anxious: they wanted a strong president insulated from an overzealous Congress, and they foresaw that elections were an inadequate check against presidential abuse of power.
One delegate even proclaimed that the president should not be impeached while in office. To this, Virginia’s George Mason persuasively remonstrated: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? […] Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Impeachment’s application for serious political abuses, including the questionable acquisition of political office, was not lost on the delegates.
In fact, Mason broke the terminology stalemate by offering “high crimes and misdemeanors” as the impeachment criterion. No doubt, the delegates’ frame of reference was shaped by the states’ constitutions’ experience with varied impeachment wordage. But it is left unclear from Sunstein’s compact narrative why the delegates had to go through a lot of banter and quasi-free associations to recall this good-fit standard for impeachment.
The ensuing Constitution ratification public debate was even more determinative in setting public understandings for impeachment. The public debate spawned the classic Federalist arguments of John Jay, James Madison, and Alexander Hamilton, with the political abuse basis for impeachment conveyed writ large. For this, Sunstein has an easy time, turning to Hamilton, whose Federalist No. 65 essay enunciates 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.’”
A second clear point about impeachment also emerged: impeachment was not to be applied for a president’s poor performing in office. Future Supreme Court justice James Iredell, who argued for ratification in North Carolina, articulated this point: “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.”
Sunstein follows the lengthy historical background with some engaging chapters, including one on the impeachment maneuvers against Andrew Johnson, Bill Clinton, and Richard Nixon, who resigned before the House of Representatives voted. Sunstein succinctly explains that Bill Clinton’s conduct in the Monica Lewinsky affair certainly was not an abuse of power of constitutional scope, while Richard Nixon’s actions were. For the Clinton case, the Republican congressional prosecutors wrote up impeachment charges for the Senate focused on perjury or obstruction of justice involving Paula Jones’s allegation of sexual harassment before Clinton’s presidency. While perjury and obstruction of justice are serious, Sunstein maintains, the underlying charges are not impeachable offenses — Paula Jones’s accusation was for behavior before the presidency, not connected to the means of acquiring the office, and the Monica Lewinsky charges revolved around marital infidelity. “We aren’t speaking here of systematic violation of civil liberty, or acquisition of the office by unlawful means, or the grave misuses of official authority that triggered impeachment proceedings in the American colonies,” Sunstein explains.
While I believe Sunstein’s compact assessment of the impropriety of the Clinton impeachment hits the nail on the head, at this time of sexual abuse revelations, arguments justifying the Clinton impeachment are in redux mode, on both the right and the left, and Sunstein’s legalism might not suffice to bring a second finality to the issue. Another point might therefore be raised at this time that Sunstein does not make — that is on the constitutionality, in addition to the cruelty, of the Starr Report. This might re-balance the historical reminiscing at this time.
While the Starr Report is commonly described as prurient and salacious for its graphic sexual testimony and narrative, congressional impeachment hearings at the time did not adequately address the Report’s respect for constitutional law. In particular, it could have/should have been stressed that the Starr Report had contempt for the constitutional right of privacy. Regardless of conservative antipathy, the right of privacy is a constitutional right as articulated by the Supreme Court in Griswold v. Connecticut, where a married couple’s constitutional right to contraception derive from a recognized privacy right; and extended unto Roe v. Wade, which understands a woman’s right to an abortion as an expression of the right of privacy (which the state can restrict for later parts of a pregnancy). This right and these cases are in the conservative bullseye, but they have not been overruled: the constitutional right of privacy remains the law of the land.
Many would respond that parties to an extra-marital affair are not given Griswold protection, and so Monica Lewinsky’s testimony did not have that protection. Perhaps, but Justice William Douglas’s decision in Griswold could with common sense be extended to couples, certainly in terms of extreme graphic sexual revelations. More to the point, could Hillary Clinton, Bill Clinton’s spouse, have had an inarguable right to privacy that was violated by the Starr Report? In the upsetting November 15 narration of the Starr Report, after sexual contact is depicted and established, the Report includes a gratuitous remark that is unnecessary for what is being corroborated and that is presumably included to embarrass the Clinton marriage and Hillary Clinton. (“And then I think he made a joke … that he hadn't had that in a long time.”) Additionally, and important for context, the Starr Report had a cruelty and misogyny to it. How could it be the proper basis for impeachment? Our constitutional tradition would want better of us.
Moreover, Sunstein is fundamentally correct when he highlights the misapplication of the Clinton impeachment by contrasting it to the deeds of Richard Nixon. What Nixon did — manipulating and misusing the CIA, FBI, and IRS to cover up election campaign wrongdoing or maneuver against political enemies — gets to the heart of the rationale for impeachment. Legal parsing is a pedantic part of law but it is necessary for justice. So, when Sunstein writes, “a cover-up of activity that does not amount to a high crime or misdemeanor may not itself amount to a high crime or misdemeanor,” he offers a working principle that puts impeachment’s abuse of power in a context with which we can work — centering the impeachment focus on officials who feel privileged to use the most potent offices of government (e.g., the CIA) for purposes of cynical political maneuvering.
As for the third historical example, Andrew Johnson, Abraham Lincoln’s vice president and successor, there feels to be a gap in what Sunstein is conveying. Some readers might intuitively disagree with Sunstein’s claim that Andrew Johnson should not have been impeached. True, the technical charge of violating dubious legislation that prohibited dismissal of a specific cabinet secretary was a shoddy basis for impeachment. However, Johnson blocked reconstruction efforts, opposed the 14th Amendment, and allowed for horrible restrictions on freed blacks. It is certainly arguable that Andrew Johnson’s was more than just a case of bad presidential decision-making: some fundamental undermining of public trust — having lasting impact — characterized Andrew Johnson’s actions that the Congress sought to check, and should have better formulated its impeachment charge.
Impeachment: A Citizen’s Guide also has an excellent pedagogical chapter in which Sunstein hypothetically examines issues involving presidential actions that would or would not be impeachable. Grotesquely underpaying taxes is probably not impeachable; directing the IRS or law enforcement to target political opponents presumably is. The ratification debates also underscored that a president’s suspect and irresponsible chumminess with a foreign power is an impeachable political abuse.
Sunstein brings a lot together in this brief book. A recurring theme is his tribute to those who picked up arms and fought at Concord and then later for liberty and the US constitutional heritage. He dedicates the book to them. While we should always pay tribute to military sacrifice and do much more for veterans, Sunstein should have better emphasized that folks of all democratic contribution are “We the People” who safeguard the Constitution and American liberty. Indeed, Sunstein’s strongest point is that impeachment is inherently about American citizenship and is integrally linked to other constitutional values, such as the prohibition on titles of nobility. “It’s a symbol and a reminder of who is really in charge, and of where sovereignty resides,” Sunstein writes in the final chapter. And pertaining to this ultimate point, Impeachment: A Citizen’s Guide offers edifying background for an argument that might soon be in need of eloquent, as well as passionate, delivery.
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