Frank O. Bowman III

 

On his book High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump

Cover Interview of September 18, 2019

In a nutshell

Some book titles are mysterious or allegorical, providing no obvious clue of what the darn things are about.  No danger of that here. I’ve written a book about the long history of impeachment and why that history matters during the presidency of Donald Trump.

Impeachment was invented by the British Parliament in the 1300s as a counterweight to the authoritarian tendencies of monarchy. The legislature could not remove kings or queens except by revolution but could alter or impede royal policies of which it disapproved by removing the monarch’s agents – royal ministers, favorites, and judges. Even though a lot of old British impeachments were no more than rough incidents of ordinary politics, the most important ones were conscious efforts to resist royal tyranny and establish or preserve emerging norms of representative constitutional government.

The great impeachments of British history stuck in the historical memory of North American colonists and the Framers of the American constitution. They adopted both the British mechanism of legislative impeachment and its traditional British purposes when they wrote early state constitutions and the federal constitution of 1788. Likewise, by borrowing the phrase “high crimes and misdemeanors” from parliamentary practice to describe the scope of impeachable behavior, the Framers of the federal constitution incorporated four centuries of British precedent into American practice. Of course, the Framers created an impeachment power broader than that of Parliament in that it can remove the national chief executive him or herself.  But here, too, the Framers were merely transplanting into Republican soil the most important function of impeachment in Britain’s emerging constitutional monarchy – preventing executive overreach and preserving constitutional balance.

The Framers intended impeachment, not as a criminal proceeding for punishing individual wrongdoing, but as a political tool. When directed at judges and lesser federal officials, it is primarily a housekeeping mechanism for dealing with corruption or rank incompetence. In the case of presidents, it is a means of defining and protecting constitutional order against executive malfeasance.

The middle chapters of the book discuss the relatively few federal impeachments or near-impeachments – one Senator, one Secretary of War, a passel of judges, and Presidents Andrew Johnson, Richard Nixon, and Bill Clinton. Each incident, particularly those involving presidents, teaches its own lessons.

I argue that Johnson’s narrow 1868 escape from conviction in the Senate was a mistake – a failure by Congress to assert its power to define the nation’s constitutional future in the aftermath of the Civil War.

The events that forced Nixon’s resignation provided an exemplar of proper investigative process in such cases and exposed behavior that is the paradigm of impeachable “high crimes and misdemeanors.”

The Clinton affair was a misadventure – a misuse of the independent counsel mechanism created after Watergate and a living illustration of presidential misbehavior too inconsequential to merit removal.

The final six chapters address the 25th Amendment and kinds of presidential conduct potentially relevant to the current moment – obstruction of justice, abuse of the pardon power, lying, corruption – and conclude with a summary of the case for and against impeaching Mr. Trump.