THE CHALLENGES WITHIN IMPEACHMENT
Some thoughts on the third Presidential Impeachment Inquiry during my lifetime
Saturday, October 5, 2019
by RICHARD E. BERG-ANDERSSON
When it comes to Impeachment (of any civil officer of the United States liable to same, but especially the President of the United States), there are two primary "rules" above all others:
Despite the title of this piece, this Commentary will not all that much address the political challenges Impeachment might engender: that is, the political ramifications and/or merits of impeaching- or, for that matter, not impeaching- President Trump (although, Lord only knows, it right now looks more and more that I will have to, at some point, do so- sooner, if not later- as the 2020 Presidential Election cycle proceeds apace); instead, this piece will primarily deal with the legal, and constitutional, issues (and, thereby, concomitant challenges) Impeachment itself raises.
This past Spring, within a Commentary of mine for this website, I presented my own argument against the notion that a President of the United States cannot be held criminally liable (that is, indicted for a crime, let alone tried and convicted of same) while still in office. I need not rehash the details of the constitutional backing for my position here (for the reader can click on the link within this paragraph to see it, should he or she even be interested), except to here add that the Federal Constitution's Article I, Section 3, clause 7 (quoted therein) need not have specifically stated that a civil officer of the United States (including the President) could be held criminally responsible prior to Impeachment, as that would have created an unnecessary redundancy within the Constitution itself (for the Constitution need not provide such a thing as regards those liable to Impeachment still in office).
Simply put: all Article I, Section 3, clause 7 does, then, is make clear that what we call 'Double Jeopardy' (a person being tried twice for the same crime, even after acquittal in an earlier proceeding at the same jurisdictional level: something American Law does not allow) does not at all attach to Impeachment: that is, a person so impeached before criminal trial cannot thereafter claim that his/her Impeachment itself thereafter bars any potential criminal liability for the same acts for which one was impeached in the first place. Nowhere, however, does the Constitution specifically bar criminal proceedings against "[t]he President, Vice President, and all civil officers of the United States" (those liable to Impeachment per Article II, Section 4 [also quoted therein]) prior to Impeachment!
Nevertheless, where there is not outright disagreement with this last statement (at least insofar as the President be concerned), there is at least general tacit acceptance of its opposite (even former Special Counsel Robert Mueller, in his appearance before two Congressional Committees this past July, stated that indicting a sitting President was "unconstitutional"). Thus, we are- if only for the time being- left with Impeachment by the U.S. House of Representatives and Removal from Office by the United States Senate as the only manner and method of punishing a sitting President of the United States for wrongdoing while in office, absent some future definitive ruling by the United States Supreme Court on the matter.
In that same Commentary of 23 April linked to above, I outlined the debate over- as well as the ultimate adoption of- the procedures to be utilized within Impeachment: Who impeaches? Who thereafter tries the person so impeached? and such. I did not, within that same piece of mine, spend all that much verbiage on (though I did, from time to time, at least touch upon) the very why of Impeachment: that is, for what reasons should a civil officer of the United States, and especially the President, be subject to possible Impeachment by the U.S. House of Representatives, and perhaps subsequent Removal from Office by the United States Senate?
Now, however, with yet another Impeachment Inquiry re: a President of the United States (the third within my own lifetime, by the way!) by the U.S. House of Representatives currently underway, I must do so.
In that Commentary of mine from this past 23 April, I noted (among many other things, of course) that the Constitutional Convention met at Philadelphia back in 1787 had, on 18 July of that year, formally voted down a provision regarding Impeachment that it had previously adopted (albeit while still in Committee of the Whole the previous 13 June) that the National Judiciary be the vehicle through which civil officers impeached (by, as things later turned out, the lower house of Congress) be later tried (leaving the Committee of Detail to have to sort this one out as July turned into August); I also noted therein that the Convention- having now "risen" out of Committee of the Whole- discussed, on 20 July (the longest period of debate on anything having to do with Impeachment, as it turned out), the reasons for impeaching, in particular, the (by now, to be a single) Executive, after which I summarized- in only one paragraph (as my 23 April piece was primarily about the Impeachment process, within the context of my contention that it is hardly unconstitutional for a sitting President to be held criminally liable through mere indictment, trial, and perhaps even conviction in a court of Law)- the essence of that particular day's debate on the Convention floor.
It is now time for me to go deeper into what the Framers of the Constitution themselves thought in this particular regard:
On 20 July 1787, the delegates to the Constitutional Convention were in the middle of several days of discussing, and ultimately either approving or rejecting, the proposals contained within Resolution #9 of the updated version of the so-called 'Virginia Plan' (that had, since the Convention itself was first gaveled into session nearly two months earlier, essentially become the "working draft" of the emerging Constitution they were then framing) earlier approved by the delegates while still in Committee of the Whole. The time, then, came when the issue at hand was the provision within that Resolution that the national Executive (yet to be formally denominated "President of the United States") be removable on impeachment and conviction for mal Practice [sic] or neglect of Duty.
Immediately, both Charles Pinckney of South Carolina and Gouverneur Morris of Pennsylvania moved to strike the provision altogether, Pinckney going so far as to opine that the Executive himself need not be impeachable at all during his service in office. To this, William Davie of North Carolina objected (thereby setting aside this motion), arguing that if the Executive were not impeachable "he will spare no efforts or means whatever to get himself re-elected", and instead seeing Impeachment as "an essential security for the good behavior of the Executive", a contention with which James Wilson of Pennsylvania immediately agreed.
To this, Morris countered that the Executive could commit no wrong without the assistance of "co-adjutors" (that is, underlings who would become- during some wrongful act on the part of the Executive- his co-conspirators and/or accessories) who themselves could be punished; he also considered re-election of the Executive after such acts carried out by underlings to be itself proof of the Executive's innocence in the eyes of those empowered to elect him. Morris, further, asked if impeachment (only after which consideration of removal of the Executive could take place) would, if only temporarily, suspend the Executive from his functions: if it did not, Morris said, "the mischief would go on" and, if it did, the impeaching body (it was not yet clear that the national Legislature [only later would it come to be called 'Congress'] would serve in this capacity) would render the Executive responsible to said body, thereby threatening Separation of Powers (a concept already driving the debate in the Convention on other topics by that time).
George Mason of Virginia retorted that "when great crimes [are] committed... the principal as well as the co-adjutors" should be punished. "Shall any man be above Justice?", Mason asked: "Above all shall that man be above it, who can commit the most extensive injustice?". He further asked "Shall the man who has practiced Corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?"
Benjamin Franklin of Pennsylvania soberly noted that, in History, where "the first Magistrate rendered himself obnoxious", such means as Assassination "in which he was not only deprived of life, but of the opportunity to vindicate his character" were all too often employed. Franklin was, instead, in favor of "the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused". Morris then readily admitted that corruption and a few other offenses might well be impeachable, but he insisted that these be specifically defined within the new Constitution they all were then drafting.
James Madison of Virginia then rose to opine that the new Government under the Constitution being able to deal with "the incapacity, negligence, or perfidy" of the Executive was "indispensable". "He might lose his capacity after appointment", Madison argued. "He might pervert his Administration into a scheme of peculation [meaning, the stealing or misuse of public funds: REB-A] or oppression. He might betray his trust to foreign Powers". Where, unlike as was the case with a Legislature, the Executive was to be "administered by a single man", Madison continued, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic".
Pinckney, nonetheless, continued to insist that impeachments of the Executive were wholly unnecessary. And, besides, he was "sure they ought not issue from the Legislature who would... hold them as a rod over the Executive and... effectively destroy his independence". Elbridge Gerry of Massachusetts strongly disagreed: "A good Magistrate would not fear [impeachments]", Gerry opined, while "a bad one ought to be kept in fear of them". Gerry himself feared that Pinckney was, in fact, arguing a maxim that "the chief Magistrate can do no wrong".
Rufus King of Massachusetts, on the other hand, feared that Impeachment would imperil Separation of Powers (in this, he was agreeing with what Gouverneur Morris had said earlier in the discussion). King argued that, unlike the Judiciary (the Convention had already agreed that Federal judges would serve during "good behavior"), the national Executive would be "appointed for a limited term like the members of the Legislature. Like them... he would be periodically tried for his behavior by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them, therefore, he ought to be subject to no intermediate trial, by impeachment". King insisted that Impeachment would weaken "the vigor of the Executive" which he saw as "a great security for public liberties".
In rebuttal to King, Edmund Randolph of Virginia thought that "guilt, wherever found, ought to be punished" (here, he appears to have been answering Morris's earlier notion that the civil officers under the Executive would still be answerable for Executive wrongdoing, even were the Executive himself not so answerable). "The Executive will have great opportunities of abusing his power", Randolph argued. "Should no regular punishment be provided, it will be irregularly inflicted by tumults and insurrections". To this, Benjamin Franklin (as was his wont) added a specific example from History, noting that the Prince of Orange (Statholder of the Dutch United Provinces) had failed to implement an agreement with France to merge their fleets in naval battle: this only thereafter served to strengthen both the Statholder's supporters and his opposition. Because he could not be impeached, "no regular examination took place, he remained in his office" which, in turn, "gave birth to the most violent animosities and contentions".
"Had he been impeachable", Franklin opined, "a regular and peaceable enquiry would have taken place and he would, if guilty, have been duly punished; if innocent, restored to the confidence of the public". But, from this, Rufus King demurred, arguing that Franklin's example did not apply, as the Dutch Statholder "held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behavior. In the latter, they are unnecessary; the periodical responsibility to the electors being an equivalent security".
James Wilson then noted that one could well argue that the Senators whose terms were the same as the Executive's (at the time of this discussion, the Convention had already decided that the Executive and Senators would both serve for 6 years; the current 4-year term for the President would be adopted by the Convention later) might also face Impeachment. Meanwhile, Pinckney opined that there seemed to be a misapprehension, within all this discussion, that the Executive would have powers not granted to him; instead, Pinckney presumed "that his powers would be so circumscribed" in the new Constitution "as to render impeachments unnecessary".
It was left to Gouverneur Morris to close out debate on this issue: he admitted that his mind had been changed by the discussion. "Our Executive was not like a Magistrate having a life interest, much less like one having a hereditary interest in his office", Morris said. "He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him". Morris thereafter argued that "[t]he Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of Impeachment... This Magistrate is not the King, but the Prime Minister. The People are the King". Morris added that "[w]hen we make him amenable to Justice, however, we should take care to provide some mode that will not make him dependent on the Legislature".
A motion to postpone any consideration of Impeachment was defeated by a vote of 8 to 2 (only ten States were present: New Hampshire's delegates would not first arrive for another few days; New York's delegation was entirely absent at this time; and Rhode Island never sent a delegation to the Constitutional Convention). The question was then put and the resolution that the national Executive be removable on impeachment and conviction for mal Practice or neglect of Duty carried by that same vote of 8 to 2 (only Massachusetts and South Carolina were in the minority on both votes). This resolution, along with all the others adopted by the Convention- as "the Convention" at this time- would be passed on to the Committee on Detail less than a week later.
And, with that, what was to prove to be the longest debate and discussion at the Constitutional Convention as to why the President of the United States should be impeachable and, perhaps, thereby removed from office came to an end...
... although it was not to be the last word on the matter!
Along this line, I present the following excerpt from my own Commentary of last 23 April:
the Committee on Detail... had made an important change, by the time it reported back to the Convention on 6 August, with their provision that the President (as the chief executive office was now to be called) "be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of Treason, Bribery, or Corruption".
The switch to the Senate, rather than the Supreme Court, as the trying body upon Impeachment is, of course, recounted earlier [in my 23 April 2019 piece]. Meanwhile, no change was made to the reasons a President could be impeached until, in the Committee on Unfinished Portions, the provision (as reported out by this committee on 4 September) had been truncated to merely "for Treason or Bribery". When debate on this provision ensued on 8 September, delegate George Mason proposed adding the words "or mal Administration [sic]" but James Madison objected, on grounds that the term was much too vague; Mason then proposed the by now-well known phrase "or other high Crimes and Misdemeanors against the State", which was adopted by the Convention (with the sole exception that the last part was changed to "against the United States") and then passed on to the Committee on Style.
Up to this point, less than ten days before the final draft of the original text of the Constitution would come to be approved by the Convention, all of this discussion (such as it was) as regarded the constitutional reasons for Impeachment only involved the President. On that same 8 September, however, a provision that "[t]he Vice President and other civil Officers of the United States shall be removed from Office on Impeachment and Conviction, as aforesaid" was also adopted (the first specific reference at the Convention to the other Federal offices liable to Impeachment), almost as something of an afterthought.
Perhaps it was much too much of an "afterthought", however: for it was the Committee on Style that, come 12 September, reported out the current wording of Article II, Section 4 (formally adopted by the Convention on 14 September)...
Thus, Article II, Section 4 of the United States Constitution came to read:
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.
And this is all that Congress has to work with when considering (in the House) Impeachment and, if and when so impeached, Removal from Office (by the Senate); although the various and sundry concerns of the Framers (particularly as regards wrongdoing by a President) should not be ignored-- even in a 21st Century context!
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences 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 the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly, or inimical, to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.--
And so Alexander Hamilton himself once described the political aspects of Impeachment, leaving me free- more than 230 years later- to here at least attempt to, however briefly, address the legal ones. In the main, however, it has to be noted we are pretty much back to my own two "rules" re: Impeachment above:
Modern Political Science sees Government as consisting of three basic elements: Administration of the State itself, popular Accountability, and Rule of Law... The image here is that of the Executive (either in the person of the President himself, or the workings of an Administration that bears his name) inside a "bubble" (yes, the very "sphere" of its Power) and ever pushing out against the walls of that bubble in order to attempt to expand it (yes, indeed, truly "pushing the envelope"), while both popular Accountability (in the form of the duly elected members of both houses of Congress as representative of the People) and Rule of Law (Jurisprudence: the application of law through rulings handed down by the Courts in live "cases or controversies" brought before them) attempt to press the walls of that same "bubble" back inward.--
The connection with the very core of what has since come to be known as "Madisonian" 'Institutional Egalitarianism' is, therefore, herein most clear: as each of the three Branches of Government are co-equal, no one Branch has inherent supremacy over the other (and, where one Branch does get to do certain things- things innate to its own organization and purposes alone- in contradistinction, where not also in relation, to the other two, the reason for this is principally one of practicality [as opposed to mere convenience], so long as it does not conflict with the Constitution itself). Hence, my own characterization as quoted above, ahead of this section of my piece, of the President being in a "bubble"-- ever pushing outward as the other two Branches seek to push back and, thereby, hem him in.
Saying, instead, that a President of the United States (alone among all other Federal officers- Executive and Judicial) cannot be held criminally liable while still in office is, indeed, the effective removal of at least one of the two checks on the Executive Branch (arguably, the more important one: that of 'Rule of Law'); moreover, it allows for a President of the United States (any President of the United States) to continue to engage in that which might well be construed as criminal activity so long as he remains in office! This appears most contrary to the Framers' intent, considering their own evident (from the records of the Constitutional Convention of 1787) concern with just such things as "mal Practice", "mal Administration", and "Corruption".--
Generally speaking, Impeachment in the House is the legislative equivalent of Indictment handed up by a Grand Jury in a criminal case to be dealt with in the Judiciary; meanwhile, the Senators- when constituted as a 'court of Impeachment' and, thereby, considering whether or not to remove a person so impeached from office- function, more or less, as a legislative equivalent of a Petit Jury hearing (in order to thereafter render a fair verdict of either guilt or acquittal in) a criminal case at trial.
However, this analogy might well be stretched too far.
The purpose of a Grand Jury (by very definition, a larger body than the Petit Jury at trial: much as the House of Representatives is larger in membership than is the Senate) is to determine whether or not the Prosecution has provided them with a Prima Facie case: that is, at least the smallest basis for the Prosecution continuing to press the criminal charge(s) against the Defendant. If the Grand Jury feels that the Prosecution has failed in this endeavor, it can vote 'no True Bill' (that is: refuse to hand up the Indictment, which then prevents the case from going forward, on to trial, in the first place).
Unlike at trial, the Defendant is not necessarily entitled to plead his/her own case before the Grand Jury (for the Defense will have its shot against the Prosecution's evidence at the ensuing trial: that is, only if the Grand Jury hands up a 'True Bill' of Indictment to begin with, of course). Therefore, the Grand Jury is but ancillary to the functions of the Prosecutor alone.
This, however, cannot really be the case with Impeachment (of any civil officer of the United States, not just the President: this would include impeachment of a Vice-President, the head of an Executive and/or Administrative Department or Agency, or a Federal judge [including Justices of the Supreme Court]-- although, admittedly where not also obviously, the situation is the more highly charged where it involves a President): for those opposed to the impeachment of such a Federal officer- by dint of Legislative Procedure alone- are as much a part of an Impeachment inquiry, and subsequent proceedings flowing therefrom, in the House as are those in that same body who are, in essence, "prosecuting" the officer in question accused of wrongdoing!
It is but a by-product of the difference in the inherent functions of the Legislature versus those of the Judiciary. To once again quote from that which I wrote the very day before President Trump himself took office: [t]he image here is that of the Executive (either in the person of the President himself, or the workings of an Administration that bears his name) inside a "bubble" (yes, the very "sphere" of its Power) and ever pushing out against the walls of that bubble in order to attempt to expand it (yes, indeed, truly "pushing the envelope"), while both popular Accountability (in the form of the duly elected members of both houses of Congress as representative of the People) and Rule of Law (Jurisprudence: the application of law through rulings handed down by the Courts in live "cases or controversies" brought before them) attempt to press the walls of that same "bubble" back inward.
While the Judiciary is, by its very nature (not to also mention its organization and procedures), forced to contemplate but 'Rule of Law', the Legislative branch always acts primarily on grounds of 'popular Accountability'-- and this is certainly no less so in the realm of Impeachment!
Thus, unlike in a Grand Jury (in which each grand juror acts only upon his/her own conscience and understanding of the standards of his/her community, both applied to his/her understanding of the Law as the Prosecution is presenting it to them while they consider the case being put before them by said Prosecution), each member of the House considering Impeachment (especially that of a President of the United States) is, first and foremost, as much accountable to their own constituents as they might be to either Conscience or Constitutionalism as they best understand it (where not both).
Where the Congressional District is one in which stronger support for a President trumps (again, no pun intended) the charges of wrongdoing brought against that President, the Member of Congress most recently elected from that District will be under greater pressure to vote down Impeachment (as well as to speak most forcefully against Impeachment and Removal of the President even in Committee, let alone on the floor of the House itself), regardless of the efficacy of those charges. Likewise, a District where there is stronger support for Impeachment and Removal of the President will press the Representative thereof to more forcefully argue (and, indeed, vote) in favor of Impeachment in the same forums, even where the charges against the President might be weak...
and woe be to the Member of Congress from a District in which opinion on the matter is, more or less, evenly divided!
Yet, in this very way, Popular Opinion itself becomes the vehicle pushing forward- or pushing back against- impeaching a President. And perhaps, in the end, this is as it should be: especially where events have moved in such a way that the country has already gone beyond simply adhering to the dictum of my old U.S. History professor at Boston University, the late Robert Vance Bruce, that "the best Impeachment is more usually the next Election"...
maybe, then, we should now add a corollary to Professor Bruce's dictum to the effect that "absent waiting for that next Election, resort can then only be had to Popular Opinion".
Therefore, the principal challenge within Impeachment might well be that one cannot ever truly separate the Legal/Constitutional from the Political in this regard, as the same pressures felt in the House (as outlined above) are surely also to be felt within the Senate (except that the constituency of a Senator is an entire State of the American Union, rather than a mere- much more usually smaller, in area as well as in population- Congressional District) when it comes to being pro- or con- on the issue of Removal from Office upon impeachment in a given case!
All things considered (as well as equal, which they never really ever are), however, and no matter what, we cannot know- as a Presidential Impeachment Inquiry begins- where, and how, it will ultimately end. As I have said, I have already lived through two of these (that re: Richard Nixon in 1974, and that re: Bill Clinton in 1998) and am, in truth, none the worse for wear-- then again, neither is the United States of America (or, as the late Congresswoman Barbara Jordan [D-Texas] herself said, as the first of these approached its climax, "My faith in the Constitution is whole; it is complete; it is total"-- to which I can only say, now 45 years later, 'Amen, sister!'). Nonetheless, 'Past Performance is no guarantee of future results', and History provides no Operating Manual (only analogies and similarities, as Benjamin Franklin himself found out on that summer day back in 1787 Philadelphia), even as- at the same time- future History must ever remain unknown.
And all of this (let alone all of what I have written throughout this piece) should be well kept in mind, no matter where the reader might right now stand on the current Impeachment Inquiry- pro, con, or as yet undecided.