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

The wide angle

One big question inevitably raised by Anglo-American history is why, given the Framers’ expansive views of impeachment, it has so seldom been employed against American presidents, and why it seems so impossible to do so now. Part of the answer is simple – the Framers erected the procedural barrier of a 2/3 vote for conviction in the Senate. But it is plain that they didn’t imagine a 2/3 Senate supermajority to be an insuperable obstacle. For example, they also required a 2/3 vote of the Senate to ratify treaties. Yet they imagined the formation of treaties between nation-states to be the primary form of international relations and they surely didn’t mean to make that ordinary governmental function next-to-impossible.

Here, too, history provides some explanations for our current situation. The Framers generally viewed political parties, which they dismissively labeled as “factions”, as undesirable. Some of them undoubtedly anticipated the rise of such factions, and nearly all of them entered vigorously into party politics as soon as they became a feature of American political life. Nonetheless, I think they failed to anticipate that congressional loyalty to party, and to the president of one’s party, would ever completely overwhelm protection of Congress’s institutional prerogatives and, more fundamentally, dedication to the national interest.

Moreover, the Framers never anticipated that the presidency, and the person of the president, would assume their current outsize importance. They viewed Congress as the inevitably supreme branch of American government. They certainly did not anticipate the rise of the modern post-New Deal administrative state or its concomitant, the imperial presidency. Nor could they have imagined that any Congress would consent to its own progressive defenestration in favor of executive action.

The transformation of the relative positions of Congress and the presidency might not itself have rendered impeachment prohibitively difficult. However, this trend has recently been abetted by the increasing ideological purity of the two major parties, and the fracture of the media into a siloed environment in which there is no generally accepted source of facts upon which most members of the public rely.

The result is a Congress most of whose members resist even participating in the fact-finding necessary to an impeachment inquiry if the target of the inquiry is of their own party. In this environment, the bipartisanship necessary to achieve cross-party participation in either impeachment by the House or the 2/3 vote required for conviction seems inconceivable.