The Peoples’ Constitution: Impeachment and Goldilocks (Part One)

By Ben Lenhart

Separation of Powers lies at the heart of our Constitution, and impeachment is one of the most important ingredients of separation of powers. Both separation of powers and impeachment serve the same ultimate goals: preventing any branch of government from abusing its power and ensuring that our government does not grow into a tyranny that threatens the fundamental rights and freedoms of all Americans. This two-part article lays out the key features of impeachment under our Constitution (and aims to do so while avoiding politics or partisanship). Part One describes how the impeachment process works and the meaning of the key term “High Crimes and Misdemeanors.” Part Two next week then looks at actual examples of impeachment and ends with a review of potential impeachment issues arising out of the Mueller report concerning Russian interference in the 2016 Presidential Election.

Impeachment:Nuts and Bolts

The best starting point for impeachment is the Constitution itself.

First, Article One, Section 2 states that the House of Represents shall have “the sole power of impeachment.” The House can impeach federal officials—up to and including the president—based on a simple majority vote in the House.

Second, once impeached by the House, a person then faces a trial in the Senate. Article One, Section 3 states that “the Senate shall have the sole power to try all impeachments.” It also states that a two-thirds vote is required by the Senate to remove an impeached person from office.

Third, the same section states that no one can be sent to jail as result of the Senate vote. Instead such person is removed from office and barred from holding public office for life. But such person can later be tried in a regular court for his crimes that led to his impeachment.

Fourth, when the president is impeached and tried in the Senate, the Chief Justice of the Supreme Court presides over the process.

Fifth, and most importantly, Article 2, Section 4 contains the key test for 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.”

Impeachment at the Heart of Separation of Powers

Few things are more important for protecting American liberty than separation of powers. Under our Constitution, separation of powers means that the three branches of our federal government—legislative, executive and judicial—each serve distinct and important functions in our American system, and no branch can take actions that prevent another branch from carrying out those core functions. But it also means that each branch “checks and balances” the other branches, making sure they do not engage in illegal behavior or otherwise stray outside their constitutional role.Impeachment is among the most powerful “checks and balances” because it gives the people the ultimate check on government. Through the impeachment process “We the People” (through our elected representatives) can remove from office any federal government official, even the President, for serious public misconduct. But this leaves open a key question: What counts as an impeachable offense?

The Founders’ Views on Impeachment: Goldilocks Part 1.

In drafting and ratifying the Constitution, the Founders realized the awesome power of impeachment, and debated whether it should be broad or narrow. Under the broad view, the president could be impeached simply for doing a bad job in office, or for adopting policies that a majority believe are wrong. Under the narrow view, the president could only be impeached for truly heinous crimes like secretly helping our enemies, of engaging in gross corruption (e.g., taking a million-dollar bribe in exchange for a government favor). At the Constitutional convention, some argued that the president should be removed only for two crimes—treason or bribery. Indeed, some Founders went even further and argued that the president’s four-year term of office was sufficient to control the president, and that presidential impeachment was therefore unnecessary altogether. Refuting this view,George Mason stated “no point is of more importance than that the right of impeachment [of the president] should be continued.” Then Mason asked his famous question: “Shall any man be above Justice?”

This was the “Goldilocks” question facing the Founders—and getting the answer “just right” was critical. If the president could be impeached and removed from office too easily, he would be under the thumb of congress—the power to remove is the power to control. The result would be a greatly weakened president, harming the very idea of separation of powers and injuring the nation as a whole. On the other hand, if impeachment was too hard (or impossible), the nation could be forced to suffer for years under a truly horrible president with no power to remove him until the next election, which could be years off.

The Founders needed to get the balance right, and they did so by adding the phrase “High Crimes and Misdemeanors” to the impeachment test, thereby expanding the grounds for impeachment beyond treason and bribery, but also by requiring that both houses of congress play a role in impeachment, and mandating a super majority in the Senate before removal from office. The former made impeachment easier (at least compared to what some Founders wanted), while the latter made it harder. The end result landed in the middle—not impossible to impeach, but not too easy either—a balanced approach to impeachment that was, hopefully, “just right.”

High Crimes and Misdemeanors

“High Crimes and Misdemeanors” sounds good, but what does it mean?

While the phrase had been in use for many years in England and the American colonies in connection with impeachment, it had no single definition. Unlike treason, it is not defined in the Constitution. Nor was there any significant debate about its meaning at the Constitutional Convention in Philadelphia in 1787. However, the debates between the Federalists and the Anti-federalists over whether to ratify the Constitution are helpful in shedding light on the meaning and purpose of “High Crimes and Misdemeanors.” In Federalist Paper (No. 65), Alexander Hamilton said that impeachment should take place for “offenses which proceed from the misconduct of public men, or in other words, from 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 society itself.” And in Federalist Papers (No. 51) James Madison said: “It may be a reflection of human nature that such precaution [as impeachment] may be necessary. But what is government but the greatest of all reflections on human nature?” One of the most respected early Supreme Court justices, Joseph Story, remarked that the defining feature of impeachable offenses is that they be of a “public character” involving abuse of public office or duty.

From these and other sources, we distill down the key aspects of impeachment:

  1. Impeachment is appropriate for serious abuse of public office. Note two requirements—the wrongdoing has to be serious or grave, and it has to involve public, not private, wrongs.
  2. A crime is neither necessary nor sufficient for impeachment. First, a crime is not needed to impeach. For example, if a president takes a year-long vacation while in office, or fails to defend the nation against imminent attack, these are not crimes, but he can still be impeached because they are grave abuses of his public duties. Second, the fact that the president has committed a crime is not, by itself enough to impeach. Reckless driving or failure to pay taxes are crimes, but they would almost never be impeachable. Of course, many impeachable offenses are also crimes. For example, extensive use of the machinery of government for the express purpose of obstructing a criminal investigation would be impeachable: this conduct meets both requirements because it involves both serious wrongdoing and the abuse of public office.
  • Purely private conduct is almost never impeachable, even if the conduct is criminal. (I say “almost” never because particularly heinous private crimes—such as rape or murder—may be so severe that impeachment may be the only remedy, especially when committed by the president who, as some argue, can’t be indicted while in office. Also, where such a severe crime has been proven, the president may have lost all ability to govern.)

[To be continued in Part Two]

Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

2 thoughts on “The Peoples’ Constitution: Impeachment and Goldilocks (Part One)

  • 2019-07-26 at 9:52 am
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    Ben, Excellent piece for a Sunday afternoon discussion while we wait for football to be back but when it comes to abuse of power we don’t have to look farther than Richmond, Virginia to see how such unfairness can impact our daily lives. Yes – abuse of power! Virginia is a Dillon State which basically means that a County like Loudoun or Fairfax can not do anything that is not already approved by Richmond, Virginia based legislature. Here are just a few examples: LCPS can’t accept advertising revenues for its 800 or so buses that traverse the county all school day long, the state utilizes the “composite index” to withhold over $200 million per year of sales tax funds which are supposed to be returned to Loudoun to support schools, VDOT is dramatically under budgeted by the state making Loudoun have to absorb costs that should be borne by the state for roads like Route 15 north or the overpasses being built along Route 7 and many other examples. The state of Virginia thus far refuses to accept that the MWAA controlled parking lots which serve the Metro should be property taxed by Loudoun to support our schools even though they have nothing to do with the national security aspect of Dulles Airport. The state pushed for the State Corporation commission to allow Dominion Power to place extremely large power lines above the W&OD path even though most of Loudoun opposed it. The state even interfered with our local zoning rules on signs to make sure all the developer paid 4 by 8 foot signs can litter our main roads for months before elections. As Chair of the BOS I plan to have joint meetings with the Fairfax BOS to insure our county has a larger voice with the state and can jointly bid on commodities to drive costs down for all Loudoun taxpayers. The state of Virginia needs to understand that as of 2020 Loudoun will no longer sacrifice its living environment just so the state’s addiction to ever increasing income tax revenues from high density residential developments will be condoned unless Loudoun is treated more fairly by the state. Now that is a topic I would love to see you research! States rights against County interests on the basis of “just because we said so or didn’t say yes”.

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