My latest article, “Conviction, Nullification, and the Limits of Impeachment as Politics,” has now been published in the Case Western Reserve Law Review. In it, I argue that although impeachment is often denominated as “political,” that description both overstates and misstates the nature of impeachment, which represents a sober constitutional moment that must rise above ordinary politics. That is especially true when an impeachment reaches the Senate, which is transformed from a political body into a quasi-judicial body adjudicating guilt.
Although not strictly “criminal” in the conventional sense, and although an impeachable offense arguably need not be a defined part of the existing criminal law, much impeachment law and procedure is nonetheless informed by the law of crimes. Note, in particular, that the Constitution requires that the Senate “convict” an impeached official, a term that the Constitution normally employs only in the context of criminal adjudications. In light of this understanding, when the United States Senate sits as a court of impeachment, I argue, it is transformed into a body where the incidents of partisanship and political coalition-building that characterize ordinary legislative business must ultimately be subordinated to objective judgments about higher-order interests. Those interests include fairness, the rule of law, the separation of powers, and — when the president is impeached — presidential responsibility.
Hamilton spoke of presidential responsibility in the impeachment context. Arguing for energy in the executive in Federalist No. 70, Hamilton urged unity. Unity is better for, among other things, holding presidents responsible (because plural executives will try to shift blame from one to the other). Unity therefore allows the people the chance to discover “with facility and clearness the misdeeds of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.” Hamilton then returns to responsibility in Federalist No. 77, where he reiterates impeachment as a safeguard for abuses of executive power. Indeed, in No. 77, Hamilton is defending the Senate’s role as a check on presidential appointment power. He is demonstrating that this check, along with impeachment, reflects the safety of a system in which the legislature has control over the executive when he abuses his office.
Impeachment has, of course, been much in the news of late, and a subject of multiple posts here. Last week, for example, reporting concerned statements by former Senate Democratic Leader Harry Reid, who cautioned Democrats against aggressively pursuing impeachment of President Trump. “Stop it,” he said of impeachment talk, noting the political risks to Democrats. But Reid also went on to say that vital institutions — the legislative branch and judiciary — have been “decimated” and that constitutional checks and balances have been “sliding out the door” since Trump’s election.
This is worthy of reflection. If — if — the President has deliberately violated the Constitution, or done serious damage to the separation of powers, and if those offenses are sufficiently serious, why not talk about the possibility of impeachment?
If you are among those who have demanded that congressional Republicans in the Trump Era set aside political calculations and place national interests above party interests — even if doing so presents political risks — then you must acknowledge that this wise advice should apply to Democrats, as well. If the interests of preserving constitutional government and the rule of law demand an impeachment inquiry (and presidential accountability), why ignore that demand merely because impeachment brings political risks?
Of course, whether a president has committed impeachable offenses is a separate, and complicated, matter. People of good faith can reasonably debate whether this President, or others, committed impeachable offenses. Indeed, that debate may well be premature with respect to the current President (and I remain skeptical that pre-presidential private acts can be impeachable, even if they are criminal). But even setting aside whether sufficient evidence exists to convict a president of a crime, if a president endeavored to thwart a criminal investigation or prosecution, to undermine the legitimacy of and public confidence in federal law enforcement officials or of the criminal law, or to exert undue influence upon an investigation or prosecution, this would raise serious questions about whether the president had abused his office and violated the sacred commands of Article II. That part of the Constitution requires him to “take care that the laws be faithfully executed,” as well as to faithfully execute his office and to preserve, protect, and defend the Constitution. Those questions rise to the level of gravely serious when the president engages in such actions for the purpose of protecting himself or his associates from being implicated in wrongdoing, or of endeavoring to assure that the laws are not enforced against him or his allies.
Congress must therefore ask, if those conditions ever existed, even short of prosecutable criminality, would they be worthy of an impeachment inquiry? If so, would it matter that there was political risk, or would fidelity to constitutional government be more important, despite the risks?
Senator Reid is correct that impeachments are “unpleasant.” Moreover, the super-majority requirement for conviction in the Senate makes it difficult to imagine any president being convicted when the Senate is closely divided along party lines. Surely the Senate would be rightly concerned about taking up an impeachment where acquittal was a foregone conclusion. Those are not inconsiderable factors. And there is no question that Congress is a political beast. But just as raw politics or partisanship should not be employed to instigate an impeachment or drive a conviction, neither should raw politics or partisanship be employed to scuttle a legitimate impeachment inquiry or sensible senatorial judgment about guilt.
As I urge in this paper, there must be limits to the electoral calculations and partisan machinations that attend impeachments, particularly those that form of a part of ordinary Senate business, once impeachment has arrived at the chamber. Otherwise, the constitutional mechanisms for presidential responsibility become substantially weakened, and Congress takes yet another step toward irrelevance.