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.
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.
If the random reader encountered the book in a bookstore, I suppose I’d most want them to glance through one (or all) of three chapters:
Chapter Four describes the Framers’ deliberations over the constitution and its impeachment clauses, and thus sets the framework for everything that follows.
Chapter Seven treats the impeachment of Andrew Johnson and advances one of the most important (and probably controversial) arguments in the book. I contend that impeachment is not merely a tool for expelling criminal, grossly incompetent, or corrupt officials, and is indeed not even limited to evicting presidents who threaten existing constitutional norms. Rather, I argue impeachment plays a role in those rare situations where the country is at a constitutional crossroads – a point in history where a fundamental choice about the country’s future must be made – and the president and Congress have an irreconcilable disagreement. I conclude that, “In the impeachment clauses, the constitution confers on Congress the power, in the last extremity, to choose its fundamental vision of America over the idiosyncratic view entertained by the individual person occupying the presidency.”
Finally, I’d recommend Chapter Ten, which summarizes the lessons of history and frames final chapters’ discussion of the situation presented by Mr. Trump.
In my role as constitutional historian, I have striven for political objectivity. Nonetheless, the lessons history teaches compel what will undoubtedly seem to some a partisan conclusion. Put simply, impeachment is the Constitution’s defense against a president who, by conscious design or because of defects in his character, threatens republican government. The Framers made impeachment hard because they didn’t want Congress throwing out presidents in partisan hissy fits. Still, the framers meant it to be used if, somehow, a manifestly unfit person were to become president and endanger the constitutional order they so carefully constructed. Donald Trump is the contingency for which they gave us the weapon of impeachment. The question is whether our politics is so broken that we lack the will even to pick it up.
Frank O. Bowman, III, is the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law, as well as a Visiting Professor of Law at Georgetown University. He is a former federal and state prosecutor, sometime criminal defense lawyer, and widely published in the field of criminal law and sentencing. He has been writing about impeachment on and off since submitting testimony to the House Judiciary Committee in the Clinton affair.