The principal architect of Article II of the Constitution, James Wilson, exulted that the president would not be able to “act improperly, and hide either his negligence or inattention,” and thus would have no “screen.” The Rodino Report provides a series of quotes from founding luminaries showing that one important purpose of a unitary executive was to more easily—as the report puts it—“fix the blame.”
James Iredell, who played a leading role in the North Carolina ratifying convention and later became a justice of the Supreme Court, said that under the proposed Constitution, the President “is of a very different nature from a monarch. He is to be… personally responsible for any abuse of the great trust reposed in him.”… William Davie, who had been a delegate in Philadelphia, explained that the “predominant principle on which the Convention had provided for a single executive was “the more obvious responsibility of one person.”28
MASTERPIECE: THE CONSTITUTION
The framers’ particular enthusiasm for impeaching presidents lacking the requisite virtue is reflected in the Constitution. For openers, the impeachment clauses in the Constitution specifically cite the president and vice president as subject to impeachment:The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.29
Despite the fact that “all civil officers”—as distinct from military officers—are subject to impeachment, the president and vice president are the only impeachable officials specifically identified in the impeachment clause. Senators, congressmen, judges, and random government bureaucrats are all liable to being impeached. But the framers’ simply assumed that presidents would be the focus of most impeachments—as they were during the debates at the Constitutional Convention on the impeachment clauses. There is even a special procedural twist for the impeachment of a president: the chief justice of the United States presides at the Senate trial.
Congressmen and senators are referred to in the impeachment clauses only indirectly as composing the bodies that are to conduct impeachment trials. While Article II—which defines the powers and duties of the president—sets forth the characters subject to impeachment, Article I—creating the legislative branch—mentions impeachment only to describe the procedures.
The procedure provided is this:The House of Representatives… shall have the sole Power of Impeachment.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.30
Though the language is of trials and convictions, a conviction of impeachment by the Senate is completely different from a criminal conviction in a court of law. Unlike the English practice, no criminal penalty attaches to an impeachment conviction, and therefore no double jeopardy problem arises. This the Constitution makes explicit:Judgment 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, Judgment and Punishment, according to Law.31
The penalty for personal crimes is punishment—execution or imprisonment; the penalty for committing high crimes and misdemeanors is simply removal from office, and may include disqualification from holding in the future any position of “honor” or “Trust” with the United States.
Some have interpreted the statement that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,” to mean an impeachment “conviction” must precede a criminal indictment. That obviously is absurd. Since every civil officer of the United States is subject to impeachment, that would mean that thousands upon thousands of civil officers would have carte blanche to commit rape, murder, mayhem—without the possibility of facing a criminal prosecution, until after the House had impeached and the Senate removed the officer from his federal job.
The reference to “the Party convicted” reflects the framers’ natural assumption that Congress would impeach and remove long before a “civil officer” might become vulnerable to a criminal indictment. The threshold for being merely unfit for office is substantially below the threshold for a criminal indictment. As Hamilton put it, “Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment.”32
Just because removal from office ought logically to precede a criminal indictment doesn’t mean the Constitution requires it. In fact, the only three impeachment convictions in the last half century were preceded by criminal trials.
Whatever the order, an impeachment trial in the Senate is no substitute for a judicial proceeding in a court of law: the Constitution expressly separates the two procedures. At the end of an impeachment there is no other punishment but removal from office and the possibility of being disenfranchised from holding any other federal office.
It didn’t have to be this way: the English system, from which the framers borrowed, attached criminal penalties to impeachment convictions. The framers simply took for granted that impeachment and removal from office would come first but would not necessarily be the end of it. Consequently, to avoid a double jeopardy problem, the Constitution explicitly states that an impeachment conviction does not bar a subsequent criminal proceeding. The purposes and consequences of impeachment and criminal punishment are completely different. It is absurd to treat impeachment as a sort of dress rehearsal for the criminal prosecution, with all the same formalities and burdens of proof.
Impeachment is not a frivolous matter, but it will not lead to an execution or jail term, as it might have in fourteenth-century England. (Instead of Americans becoming more like the French, as Clinton’s flacks constantly recommend, so we can start warmly embracing those who violate their oaths to God and man, how about being more like the English?) Impeachment is nothing more than a constitutional process for removing rogues from office. Criminal punishment, if the impeachable act also happens to be a criminal act, comes by a different route.
It is often said that the impeachment of a president poses a “constitutional crisis.” One may call whatever one likes a “constitutional crisis,” but it can at least be said that this particular crisis is not unconstitutional. The Constitution specifically provides for impeachment, mentioning it six times. When other constitutional procedures are employed—elections, no naturalized citizens running for president, presidential vetoes, Senate confirmations, revenue bills originating in the House—no one speaks of a “crisis.” Impeachment is serious business, but so are elections. Both are part of constitutional government.
In fact, the framers assumed Congress would leap to the task of impeachment with a little more alacrity than has been the case over the past fifty years. From the founding to 1945, there were fifty-four “documented House impeachment investigations” of federal judges alone. Since 1945 there have been four. Two of the four were convicted felons.33 There have been fourteen impeachment trials in the Senate in the history of the country. In the past fifty years there have been only three, and these were rather unavoidable. All three concerned federal judges who had been indicted and tried for criminal offenses. Two were sitting in jail—continuing to draw their federal salaries—before the House and Senate finally moseyed around to removing them from office.34
The framers may have hoped for virtuous men in public office, but they weren’t necessarily counting on it. The Constitution is nothing if not contingency-oriented. There is a backup mechanism in the Constitution for every imaginable glitch (except a populace indifferent to self-government). Presidents and any other “civil officers” who were not fit for office could be—were expected to be—removed from o
ffice.
A president who is so lacking in virtue that a V-chip is required to discuss his conduct in office surely warrants the impeachment remedy—“removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” A president who is merely incompetent or neglectful—as the president would have us believe from his own explanations for the endless series of corrupt acts, abuses, and obstructions that have occurred on his watch—deserves the same: removal from office.
And if the president also happens to have perjured himself or conspired to break the laws in order to cover up his personal vices, he is also “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
HIGH CRIMES AND MISDEMEANORS THROUGHOUT HISTORY
Though an impeachable act need not be a criminal offense, it does need to be a particular kind of conduct, and not just an unpopular policy decision. As the Rodino Report notes, the phrase “high Crimes and Misdemeanors” was a “term of art” that must be construed “according to what the Framers meant when they adopted them”—an oddly originalist argument.35 Perhaps more to the point, records from the Constitutional Convention make clear that the framers were familiar with the English practice of impeachment and the particular technical meaning of the phrase “high Crimes and Misdemeanors” in that context.
Congressman Gerald Ford’s famous formulation—in this book, infamous—was that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”36
It could also be said that a constitutional right is whatever a majority of the Supreme Court says it is. That doesn’t mean the words in the Constitution have no meaning, or that justices of the Supreme Court aren’t supposed to give effect to those meanings. All it means it that there is no appeal, even when the court or Congress is wrong—such as when the Senate concluded in 1787 that senators were exempt from impeachment.
The framers did not choose the phrase “high Crimes and Misdemeanors” because it was imprecise; it was not imprecise to them. There is a fixed meaning to the term “high Crimes and Misdemeanors,” no more uncertain or malleable than the meaning of “cruel and unusual punishment,” “free press,” or “reasonable man.” The last thing the framers intended was to leave the Senate free to declare any conduct it chose to be an impeachable offense. Madison, for example, opposed a proposed version of the impeachment clause with the reductio ad absurdum argument that it would “be equivalent to tenure during pleasure of the Senate.”37 (Whose tenure Madison was talking about did not have to be explained.)
When the framers chose the phrase “high Crimes and Misdemeanors,” they were designating specific types of conduct that would constitute an impeachable offense.38 Hamilton described impeachable conduct as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”39 (Consequently, one of the punishments for impeachment is disbarment from ever holding an office of “Trust” or “honor” with the United States.)
Citing Berger,40 the Rodino Report recites the categories of impeachable conduct to “emerge from 400 years of English parliamentary experience with the phrase ‘high Crimes and Misdemeanors’”:• corruption
• abuse of official power
• neglect of duty
• betrayal of trust
• encroachment on Parliament’s prerogatives
• misapplication of funds
Both the drafters of the Rodino Report and impeachment scholar Raoul Berger provide examples from each category.
Corruption
Lord Treasurer Middlesex, was charged with “corruption, shadowed under pretext of a New Year’s-Gift,” and with “using the power of his place, and countenance of the king’s service to wrest [from certain persons] a lease and estate of great value.” There is also a charge of corruption in that Middlesex bought assets conveyed by the King for the benefit of creditors at much less than their value. (1624)41
Perhaps, as with the first lady’s financial wizardry in cattle futures, the lord treasurer just read the Wall Street Journal, which allowed him to make shrewd business moves in the land-leasing and asset businesses.
Earl of Suffolk and Lord Treasurer Middlesex “were charged with obtaining property from the King for less than its value.” (1388)
Buckingham Danby, the Earl of Arlington, Earl of Orford, Lord Somers, and Lord Halifax were charged with procuring large gifts from the King to themselves.
Lord Chancellor Macclesfield was charged with the sale of public offices.
Lord Halifax was accused of “opening a way to all manner of corrupt practices in the future management of the revenues” by appointing his brother to an office which had been designed as a check on his own, the profits to be held in trust for Halifax.42
Poor Lord Halifax engaged in a little cronyism in a single appointment of his brother to “an office which had been designed as a check on his own.” Upon assuming the presidency, Clinton fired all the United States attorneys—more than ninety—to replace them with, as Hillary might say, “his people.” No other president in memory has fired all top federal prosecutors like this.
Abuse of Official Power
At least one impeachment charge against the Earl of Oxford suggests, painfully, that we could have gotten rid of this guy after the 1993 tax bill.
Edward Earl of Oxford, was charged in 1701 with “violation of his duty and trust” in that, while a member of the King’s privy council, he took advantage of the ready access he had to the King to secure various royal rents and revenues for his own use, thereby greatly diminishing the revenues of the crown and subjecting the people of England to “grievous taxes.”43
Many examples of “abuse of official power” involve bad appointments.
Oxford was also charged with procuring a naval commission for William Kidd “known to be a person of ill fame and reputation” and ordering him “to pursue the intended voyage, in which Kidd did commit diverse piracies… being thereto encouraged through hopes of being protected by the high station and interest of Oxford, in violation of the law of nations and the interruption and discouragement of the trade of England.”44
Duke of Suffolk (1450), treason and high crimes and misdemeanors: procured offices for persons who were unfit and unworthy of them; delayed justice by stopping writs of appeal (private criminal Prosecutions) for the deaths of complainants’ husbands.45
Duke of Buckingham (1626), misdemeanors, misprisions, offenses, and crimes: though young and inexperienced, procured offices for himself thereby blocking the deserving: … procured titles of honor to his mother, brothers, kindred.46
Oxford’s offense was to use his office to get a government job for a crook. Though it is not clear how much Oxford knew of William Kidd’s piracies, Oxford was charged with having allowed Kidd to believe Oxford would protect him by virtue of his “high station and interest.”
The Duke of Suffolk “procured offices for persons who were unfit and unworthy of them,” and was impeached for it. Maybe that’s why we still don’t know who procured Craig Livingstone’s job for him.
A slew of other “abuse of power” cases concern highly placed government officials’ interference with legal processes—which included discouraging plaintiff’s counsel, reviling the grand jury, and invoking phony points of law.
Justice Berkley (1637), treason and other great misdemeanors: reviled and threatened the grand jury for presenting the removal of the communion table in All Saints Church; on the trial of an indictment, he “did much [to] discourage complainants’ counsel” and “did overrule the cause for matter of law.”47
Viscount Mordaunt (1660), high crimes and misdemeanors: prevented Tayleur from standing for election as a burgess to serve in Parliament; caused h
is illegal arrest and detention.48
Chief Justice Scroggs (1680), treason and high misdemeanors: discharged grand jury before they made their presentment, thereby obstructing the presentment of many Papists; arbitrarily granted general warrants in blank.49
Attorney General Yelverton (1621), high crimes and misdemeanors: committed persons for refusal to enter into bonds before he had authority so to require; commencing but not prosecuting suits.50
One wonders if Justice Berkley’s attempts to “discourage complainants’ counsel” included outing homosexuals on the counsel’s staff. Berkley was also charged with improperly overruling a cause of action as a “matter of law.” Clinton has repeatedly invoked invented principles of law for no other purpose than to delay legal proceedings—as former presidential adviser Dick Morris has expressly admitted in the case of Clinton’s “presidential immunity” claim.51 The contrived nature of this claim was evidenced by the fact that it was rejected by all nine Supreme Court justices—including the two Clinton himself appointed. Later, Clinton would begin introducing privilege claims ranging from the absurd secret service officer “protective services privilege” to the outrageous claim of “executive privilege” for communications about the president’s interactions with a White House intern. This last claim was directly at odds with the president’s media strategy: the president’s defenders themselves all insisted his relationship with the intern was a purely personal affair, making it completely off-limits to executive privilege claims.