This is my fifth and last installment of a series about my new book. The Limits of President Power: Contested Ground. Today’s topic is Congress’ ultimate weapon against President Obama: Impeachment or removal from office.
Most controversial is the question of whether impeachment and commissions of “high crimes or misdemeanors” are limited to criminal offenses. The pre-frame history supports a wider reading of the past that also includes severe abuses of power. It was not an invention of the Framers to impeach. This practice has an extensive history that goes back to four centuries before the Constitution was written. In the late 1300s, England saw its first impeachment. They were accused of military failures and corruption as well as wasting public money. In 1386, the first time that “high crimes and other misdemeanors” was used was when it was first introduced. In 1450, the phrase was used once more. The criminal allegations against this defendant included some. Another charge was that the defendant purchased offices for persons who weren’t fit and spent public funds. The history of impeachment as an instrument for Parliament to eliminate unpopular royals was sporadic. The Stuart Kings, after Queen Elizabeth I’s passing, made impeachment a popular tool again. There were non-criminal offenses against officials at that time. These included mismanagement and subversion of the law. They also promoted tyrannical government. A judge was charged with browbeating witnesses, getting drunk and promoting tyrannical government.
While the Framers might not have all the facts about British history but would have had an excellent understanding of its general practices. The topic of impeachment in Britain was a hotly debated one at a time as the Constitution was being drafted in Philadelphia. British Parliament became involved in the impeachment proceedings against Warren Hastings. His power to manage India for the British was allegedly abused. Edmund Burke was the main advocate for impeachment. He stated that there weren’t any criminal charges.
Americans knew about impeachment because they had seen it used in England and because they were familiar with the process. Maryland, one century prior to Independence, impeached an officer from the colony for failing to execute a military expedition and sabotaging its policy towards Indian tribes. A Pennsylvania colonial official was impeached because of legislative contempt. A judge who agreed to receive a salary payment from King George V rather than colonial officials was also impeached. This case, according to the Massachusetts legislature, was considered an act of undue princely influence.
The Constitutional Convention was divided at first over whether impeachment was required or whether the wish for reelection would be sufficient to stop Presidents from misbehaving. Once that was resolved, there was protracted discussion of who should judge impeachments—the Senate, the Supreme Court, or someone else? Finally, they had difficulty defining the reasons for impeachment. After starting with “malpractice or neglect” they changed this to “treason.bribery.or corruption.” Finally, the delegates hit upon “treason.bribery.or high crimes.and misdemeanors. against the state.” Before being completely dropped, “Against the State” was changed to “against United States.”
Madison’s shorthand notes were analyzed for clues to what the delegate had in mind. Some delegates, including Madison, were concerned that the president’s abuse of power could go beyond criminal behavior. There were many grounds to impeach the President, including corruption, loss, capacity, treachery or negligence. The possibility that a president might win office through corruption of members of the Electoral College was discussed as well.
Although the debates held at the convention and a few references in Federalist papers are indicative, they don’t appear to be definitive of the meaning of “high crimes or misdemeanors”. Nevertheless, I believe the meaning of “high crimes and misdemeanors” was not limited historically to criminal law violations.
How about the later practices? Nearly all the impeachments that were successful involved federal judges. Because federal judges enjoy life tenure, the only way to get rid of them is through impeachment. This was primarily due to corruption, which is a crime. However, other grounds of impeachment are also possible. After being transferred from the Confederacy during Civil War, one judge was impeached for treason. Some others were dismissed because they had been mentally impaired or drunk while sitting on the bench. They also committed criminal acts as judges, such as tax evasion or other abusive behaviour during trials. Incapacity and abusive behavior are two examples of noncriminal behaviour that could be considered high crimes or misdemeanors.
I find the argument in favor of a broader interpretation of the class more convincing, on both historical and practical grounds. The imposition of impeachment would be limited to criminal offenses. This would make the process more complicated by technical legal arguments. Congress doesn’t have the expertise to address the complexity of the federal laws governing corruption. There are also certain conducts that can disqualify someone from being elected to office, but these may not constitute a crime. A judge could engage in disruptive and abusive conduct during trials, or even sexual harassment of employees. An example of this is when a President could declare his or her official authority to use political opposition silenced, and engage in intentional, noncriminal constitutional violations.
A narrower interpretation is better because Congress could abuse its impeachment power if they are not defined clearly. It is an issue. Given the complex federal criminal code, and the possibility of reading the provisions in broad strokes, I am skeptical about adopting a narrow interpretation to prevent abuses. A Senate vote of two-thirds is a better way to check this. This means that for removal from office, bipartisan support would be almost inevitable.
Impeachment refers to the “nuclear alternative” to checks and balances. The normal tools to check executive actions are Congress’s oversight of appropriations, and its ability to probe the executive branch. The mere existence and possibility of a nuclear option, even though the president was never removed by impeachment has a potential deterrent effect.
We have reached the end of this series. For closing, let me thank you again for allowing me to participate in this discussion forum. The attention I received from readers, who hopefully have gained some insight into my method of approaching these topics in general, is also something I appreciate. Contested Ground