04 Oct The Legal Precedent of Impeachment*
The Legal Precedent of Impeachment
Over the more than 230 years of U.S. history, Articles of Impeachment have been filed by the House of Representatives against three American Presidents: Andrew Johnson in 1868; Richard Nixon in 1974; and William Clinton in 1998. The charges against Presidents Johnson and Clinton did not result in their removal from office by the U.S. Senate; President Nixon, however, resigned prior to a Senate vote in what historians have concluded was an admission that the Senate would have removed him. These three “cases” provide the only precedents in defining what the U.S. Congress has determined are or may be “high crimes and misdemeanors” sufficient to remove a sitting U.S. President from office.
The U.S. Constitution states that a President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The House has “the sole power of Impeachment” and the Senate has “the sole Power to try all Impeachments,” the conviction for which requires the affirmative vote “of two-thirds of the Members present.” A President who is Impeached and removed from office thereafter is “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” However, that does not mean that an impeachable offense requires criminal conduct.
In general, impeachment and conviction by the Senate hasn’t turned and shouldn’t turn on a President’s competency or maladministration, but rather on conduct that is incompatible with the Constitutional duties of the Presidency. That conduct might be abusing Presidential powers, or obstructing justice, or misusing the office for personal gain. That is, mere incompetency and inappropriate behavior should not be grounds for impeachment …, although they should be more than sufficient to vote a President out of office at election time. Corruption that damages the country or undermines American democracy or subverts the Rule of Law or crosses Constitutional boundaries are the appropriate bases for impeachment and conviction.
That legal tension was neatly framed by opposing counsel in the closing arguments presented to the Senate in the Bill Clinton impeachment trial:
Arguing on President Clinton’s behalf, White House Counsel Charles Ruff framed the determination as one of national interest: “Would it put at risk the liberties of the people to retain the President in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safe in his hands, then you must vote to acquit.”
Chief Prosecutor Henry Hyde framed the constitutional question differently: “A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious…. We have reduced lying under oath to a breach of etiquette, but only if you are the President.…”
Both statements correctly frame the Constitutional question. The 1999 Senate decided that Americans’ liberties were not placed at risk by a lying, perjuring President and, consequently, that the Constitution does not view lying under oath as an impeachable offense sufficient to remove a President from office. (That conclusion has had long-term, adverse consequences for American government, American society and American jurisprudence.) TLR found that outcome to be problematic questionable; however, the Senate vote does provide precedent. The question of whether a President who perjures himself could be criminally prosecuted after leaving office has not yet been addressed – Nixon was pardoned and no attempt was made to prosecute Clinton after he left office.
America’s 1868 Senate similarly decided that President Johnson should not be removed from office for contravening Congressional legislation that proscribed the firing of Cabinet members without Congressional consent and then appointing Cabinet replacements without the consent of the Senate. That, too, provides precedent.
The only arguably successful removal of a President from office was in 1974 when, faced with three Articles of Impeachment (and “smoking gun” White House tapes), President Nixon resigned before a Senate vote could be taken. In passing its Articles of Impeachment, the House of Representatives had determined that Nixon had (1) obstructed justice by personally engaging “in a course of conduct … designed to delay, impede, and obstruct the investigation” into the felonious Watergate break-in and “to cover up, conceal and protect those responsible,” (2) abused his power by “violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries,” and (3) was in Contempt of Congress for willfully disobeying “duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives … thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.” It’s notable that the House rejected an Article of Impeachment against President Nixon for flagrant tax fraud based on the fact that the fraud “related to the President’s private conduct, not to an abuse of his authority as President.”
In 1970, then-House Minority Leader (and later President) Gerald Ford provided a straightforward description of what would constitute appropriate grounds for impeachment: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” The Supreme Court in Nixon v. United States subsequently confirmed Ford’s statement. It upheld the exclusive impeachment authority of Congress, ruling that the Constitution vests in Congress the sole discretion to determine what constitutes an impeachable offense.
To summarize the “precedents” of the three historical impeachment processes, a President ought not to be removed from office for (1) ignoring Congressional legislation that places limits on what he reasonably believes to be powers granted to him under the Constitution, for example, to appoint and remove members of the Executive Branch of government (a determination later confirmed as correct by the Supreme Court), or (2) sexual malfeasance, or (3) perjuring himself (a result that many have questioned), or (4) committing tax fraud or, presumably, any other fraud that relates to a President’s private conduct and not his authority as President (also a result that has been questioned) …, AND a President perhaps ought to be removed from office for (5) delaying, impeding, and obstructing an investigation in an effort to cover up, conceal and protect those responsible, or (6) violating the Constitutional rights of citizens by impairing or undermining the Rule of Law, or (7) willfully attempting to thwart Congress in the process of an impeachment inquiry.
The U.S. is now commencing its fourth Presidential impeachment process. For those who haven’t followed the allegations, the whistleblower’s complaint alleges that President Trump “used his office to solicit interference from a foreign country in the 2020 U.S. election” and, as The Economist noted, if true, “It would mean that a President has subverted the national interest to pursue a political vendetta.” The Economist added, “that would be more serious than a [Watergate] break-in or a [Clinton] fling.” Whether or not that editorial comment is correct, the question to wrestle with at this time is, “what would be the long-term consequences if the allegations in the whistleblower’s statement are proven to be correct and the Senate nevertheless were to vote not to remove President Trump from office.” What precedent might that set for a future President running for re-election …, for example, for a President Hillary Sanders in 2028? That is, to what lengths would an incumbent President thereafter be Constitutionally permitted to go to disadvantage his … or her … opponents (Presidential, Congressional, personal, or otherwise) by leveraging the substantial influence of the U.S. government, military and Treasury with foreign governments (and other influencers)? And what effect might that have on American security and democracy?
There’s a legal maxim that “difficult cases make bad law,” which attempts to explain why it is often necessary to subsume the interests of a sympathetic plaintiff or defendant in order to avoid creating a legal precedent that might result in tortuous legal line-drawing and a consequent proliferation of litigation. That is why courts try to create durable precedent and follow precedents even in cases where the result may seem unfair to specific litigants. The goal is to avoid both foreseeable consequences and those that inevitably arise even with the best of intentions.
The existing impeachment precedents arguably created by the Johnson and Nixon processes have proven to be beneficial to American government operations and to the durability of American Constitutionalism. The Trump impeachment process will be a difficult case. Congress should be careful to ensure that whatever steps it takes, American Constitutionalism and the two-party system are not damaged.
Finally (from a good friend)
Subject: YOU WERE IN MY CLASS!
HAVE YOU EVER BEEN GUILTY OF LOOKING AT OTHERS YOUR OWN AGE AND THINKING, “SURELY I CAN’T LOOK THAT OLD …? WELL …
I WAS SITTING IN THE WAITING ROOM FOR MY FIRST APPOINTMENT WITH A NEW DENTIST. I NOTICED HIS DDS DIPLOMA ON THE WALL, WHICH BORE HIS FULL NAME. SUDDENLY, I REMEMBERED THAT A TALL, HANDSOME, DARK-HAIRED BOY WITH THE SAME NAME HAD BEEN IN MY HIGH SCHOOL CLASS SOME 40-ODD YEARS AGO.
COULD HE BE THE SAME GUY THAT I HAD HAD A SECRET CRUSH ON, WAY BACK THEN?
UPON SEEING HIM, HOWEVER, I QUICKLY DISCARDED ANY SUCH THOUGHT.
THIS BALDING, GRAY-HAIRED MAN WITH THE DEEPLY-LINED FACE WAS WAY TOO OLD TO HAVE BEEN MY CLASSMATE.
AFTER HE EXAMINED MY TEETH, I ASKED HIM IF HE HAD ATTENDED MORGAN PARK HIGH SCHOOL ….
“YES. YES, I DID. I’M A MUSTANG,” HE GLEAMED WITH PRIDE.
“WHEN DID YOU GRADUATE?” I ASKED.
HE ANSWERED, “IN 1967. WHY DO YOU ASK?”
“YOU WERE IN MY CLASS!” I EXCLAIMED.
HE LOOKED AT ME CLOSELY.
THEN, THAT UGLY, OLD, BALD, WRINKLED FACED, FAT-ASSED, GRAY HAIRED, DECREPIT SON-OF-A-BITCH ASKED, “WHAT DID YOU TEACH?”
*┬® Copyright 2019 by William Natbony. All rights reserved.