Of course, arguments in favor of impeachment were not invented out of whole cloth at the Convention. Every delegate who addressed the subject in Philadelphia had personal experience with colonial or state impeachment practice. That background familiarized them with a distinctly American conception of this parliamentary power. It also led them to reject the English notion that a head of state could never be impeached. Indeed, Alexander Hamilton later invoked this point while defending the Constitution from its critics. The president, Hamilton argued in Federalist No. 69, would have no more resemblance to the British king than to “the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” Whereas “the person of the king of Great Britain is sacred and inviolable,” the American president could be “impeached, tried, and upon conviction… removed from office.”15
Eventually, the case for including an impeachment power in the Constitution achieved something that happens all too rarely in politics: it persuaded someone. By the end of the debate, Morris came around, declaring that “he was now sensible of the necessity of impeachments.”16 Just days later, Morris defended his new position with a convert’s zeal. “No man,” he emphasized, would say “an Executive known to be in the pay of an Enemy, should not be removable in some way or other.”17
This may seem self-evident. But originally Morris had believed that a combination of term limits, electoral accountability, and criminal punishments for their co-conspirators would keep wayward presidents in line. As he explained, reelection “will be sufficient proof [of] innocence.” On reflection, however, Morris saw that this logic didn’t hold up. If monarchs with lifelong thrones and hereditary fortunes could be bribed, then presidents—who were given only a brief taste of power—would surely be vulnerable to foreign influence. Further, as Madison pointed out, even temporary presidential corruption could be “fatal to the Republic.”18 Waiting until the next election might not be an option.
That risk loomed large because the president was vested with formidable authority. Although colonists had come to despise strong centralized control, the failure of the Articles of Confederation had convinced many Framers that the legislature could not govern alone. Americans needed a robust chief executive who could stand his ground against Congress. As Professor Michael Klarman has observed, this belief led the Framers to create an “extraordinarily powerful” presidency.19
The Framers’ obsession with calibrating power between Congress and the executive branch explains why some delegates never came around on impeachment. In their view, if Congress were given the power to end presidencies, a finely wrought balance would be destroyed. Pinckney thus insisted that impeachments “ought not to issue from the Legislature,” which would “hold them as a rod over the Executive and by that means effectually destroy his independence.”20
This fear was understandable. As Chief Justice John G. Roberts Jr. has observed, “in a system of checks and balances, power abhors a vacuum.”21 Constitutional powers must always be understood with an eye to who can exercise them—and with what constraints. It was not unreasonable in 1787 to believe that giving the impeachment power to Congress would sabotage the presidency. But in the Framers’ considered opinion, nobody other than Congress could properly wield this authority. The Convention thus faced a choice: include a presidential impeachment power and risk its misuse by Congress, or deny the nation any lawful means of swiftly removing a disastrous leader. Either path could threaten the constitutional plan. Still, a decision had to be made.
When caught between Scylla and Charybdis, sometimes the only path is to pick your monster and hope for the best. Here, the Framers concluded that they would not leave the nation defenseless against leaders who betrayed all that they sought to build. With that historic decision behind them, the Framers turned to a much more difficult question: How should they structure and limit the impeachment power?
In 1831, an ambitious French aristocrat arrived in Rhode Island to study prisons and penitentiaries. Sensing transformation on the horizon, Alexis de Tocqueville took a broad view of his mandate, traveling the young nation and examining its social and political order. He grew convinced that “a great democratic revolution is taking place among us.”22 Keen to understand the promise and perils of that revolution, he wrote Democracy in America—a book so deservedly famous that it’s still required reading for political science undergraduates.
Tocqueville devoted a whole chapter to the impeachment power. He built his analysis around an apparent paradox. Americans had made impeachment “the most formidable weapon that has ever been placed in the grasp of a majority.”23 However, they had done so by rendering impeachment “an imperfect weapon,” bounded by limits that he had never seen before.24 Intrigued by these innovations, Tocqueville undertook an exploration of how American-style impeachment fit within the broader constitutional plan.
This study probed an uneasy balance struck at the Convention. The Framers resolved to include a power to remove out-of-control presidents. But they also wanted an executive capable of resisting pressure from Congress when disagreements emerged in the ordinary course. After extensive deliberations, they sought to achieve both goals at once through clever constitutional design. In that effort, the Framers had access to a helpful tool kit: state constitutions that had been adopted since the American Revolution. As Professor Michael Gerhardt has noted, although there were “vast differences” across the states, the Convention ultimately adopted “the basic features of the most popular state impeachment systems.”25
Drawing on this background and their own creativity, the Framers imposed four main limitations on the impeachment power. The first was a rule of wrongdoing. The president can be removed from office only upon proof of “Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution thus requires proof of conduct so terrible that it makes the president unviable as a national leader. Presidents can’t be removed from office on the sole basis of poor judgment, general inadequacy, perceived incapacity, or strong policy disagreements.
Second, the Constitution limits who can be impeached. By its terms, the impeachment power extends only to “the President, Vice President and all civil Officers of the United States.” As Tocqueville emphasized, the Framers thus departed from European custom, which allowed legislatures to impeach any “great offenders, whatever may be their birth, their rank, or their power in the state.”26 In America, unlike in Europe, private citizens could never be impeached or otherwise prosecuted by the legislature. To fortify this limit, the Framers also forbade bills of attainder, which single out private individuals for trial and punishment without judicial protection. As a result of these categorical restrictions, the impeachment power is limited in scope to officers of the United States.
In the early years of the Republic, there was some confusion about whether legislators also could be impeached. But that issue was effectively resolved in the 1790s, when the House impeached Senator William Blount for violating US neutrality laws by urging Native Americans to attack Spanish territories. Instead of holding an impeachment trial, the Senate expelled Blount under Article I, Section 5 of the Constitution, which allows each house to “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Yet even after Blount’s expulsion, the articles of impeachment against him lingered in the Senate. Mounting a constitutional defense, Blount argued with great force that he was not a “civil officer.” In 1799, a majority of the Senate agreed and dismissed the impeachment charges for lack of jurisdiction. This precedent suggests that legislators can’t be impeached. Accordingly, the impeachment power reaches only principal executive and judicial officers, including the president.
Third, the Constitution divides impeachment between the two houses of Congress. The House of Representatives is given “the sole Power of Impeachment.” The Senate, in turn, enjoys “the sole Power to try all Impeachments.” Whereas the House can impeach by majority vote, the Senate canno
t convict on articles of impeachment “without the Concurrence of two thirds of the Members present.” This plan generally ensures a president will not be removed absent a strong national consensus in favor of that result.
Finally, the consequences of a conviction are strictly limited. The Constitution is unusually explicit on this point: “Judgement in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Thus, if the Senate convicts on articles of impeachment, it must remove the official from his position of power. If it wishes, the Senate may further disqualify him from future office holding. But unlike in England and France, where legislatures could impose capital punishment in cases of impeachment, Congress can do nothing more. Only the criminal justice system can impose fines, imprisonment, or a death sentence as punishment for misdeeds committed while in office.
The limited consequences of an impeachment are rarely discussed in modern accounts. They seem obvious to us. Nowadays, nobody thinks that Congress should have the power to mete out a death sentence if it finds that the president abused his power or betrayed the nation. We recognize that those kinds of criminal judgments are properly reserved for the courts.
To contemporaries, though, this rule was seen as central to the underlying theory of American impeachment. Justice Joseph Story therefore discussed it at length in his Commentaries on the Constitution of the United States (1833). Story began by observing that impeachment often will be applied to “political” offenses that may be “exaggerated by party spirit.” As a result of the surrounding political drama, Congress might be tempted to impose punishment “wholly out of proportion to the offence.” In the criminal code—which is enforced in courts—we can seek to prevent such unfairness by attaching specific sentences to specific crimes. But with impeachment, that’s not an option. Impeachable conduct is so diverse that it is not possible to “define the offenses” or fix their “appropriate measure of punishment” in advance. The impeachment power is therefore “peculiarly subject to abuse.”27
The Framers solved that problem by drawing a sharp line between political and criminal penalties. As Story explained, “the power of the senate to inflict punishment should merely reach the right and qualifications to office.” This limit removes the “temptation in factious times to sacrifice good and great men upon the altar of party.” Once a president has been removed from our highest office, he cannot use its power to cause harm and thus there’s no need for Congress to stay involved. At that point, Story emphasized, it’s best to let the judiciary take control. Otherwise a president might be unjustly jailed or killed by overzealous legislators.
In Story’s view, this wasn’t merely wise policy. Rather, it spoke to the very essence of impeachment as political rather than criminal in character. From that premise, Story developed an elaborate theory of which offenses are impeachable and why politicians rather than judges hold the impeachment power. Story also celebrated impeachment as carefully, prudently limited by the Constitution.
Story’s work was well known to Tocqueville. In fact, during the Frenchman’s nine-month tour, they met for an interview. Tocqueville was impressed. When Democracy in America appeared four years later, it generously cited Story’s Commentaries. But the admiration was not mutual. In 1840, Story bitterly complained: “The work of De Tocqueville has a great reputation abroad, partly founded on their ignorance that he has borrowed the greater part of his reflections from American works, and little from his own observation. The main body of his materials will be found in the Federalist and in Story’s [Commentaries], sic vos non vobis.”28 This Latin conclusion was lifted straight from Virgil. Translated as “thus we [labor] but not for ourselves,” it unsubtly signaled that Story saw Tocqueville as a second-rate plagiarist.
Tocqueville indeed echoed Story in assigning great significance to the limited consequences of impeachment in America. However, Tocqueville took a very different lesson. In Europe, he wrote, impeachment tribunals were “invested with terrible powers which they are afraid to use.”29 The risk of a “horrible assassination”30 was too great. Americans, in contrast, didn’t allow impeachment to “menace the lives of the citizens.”31 Instead, it served only to remove political authority from “him who would make a bad use of it.”32 Thus, the “less formidable” American impeachment power could more easily evolve into an “ordinary means of government.”33 On this basis, Tocqueville anticipated that impeachment would become a “regular influence,” which was “at all times available.”34 And even in its milder form, impeachment would still deter official misconduct: “Ordinary offenders will dread it as a condemnation that destroys their position in the world, casts a blight upon their honor, and condemns them to a shameful inactivity worse than death.”35 Ultimately, Tocqueville worried that it was too easy to invoke impeachment, and that our ship of state would list toward popular tyranny rather than effective administration.
In Tocqueville’s telling, the irony is exquisite. The Framers feared that Congress would aggrandize its authority—and terrorize presidents—through abuse of the impeachment power. So they wove a tangled web of limits meant to preserve the president’s independence and restrain congressional excess. Yet it turns out that the very limits they carefully placed on impeachment would actually make Congress more willing to exercise this power at the president’s expense.
Irony, however, isn’t the end of this story. Tocqueville’s theory was brilliant and devious, but it was also wrong. Nearly two centuries later, while there are many things to say about impeachment, “at all times available” isn’t among them. The casual use of impeachment that Tocqueville foresaw has never materialized. To the contrary, Americans convinced of executive tyranny have long agonized over the political and practical difficulties of ending a presidency. And apart from Richard Nixon, who resigned before the process had run its course, we have never actually removed a sitting president. The exceptionally steep path to impeachment, in turn, has allowed most American officials to ignore the fear of “blight” that Tocqueville thought would pervade our society.
This analysis brings us to an important point. Constitutional design is more art than science, and its implications are not easy to predict—even for a genius like Tocqueville. Savvy students of government thus heed Justice Stephen Breyer’s warning that power is not always “susceptible to the equations of elementary arithmetic.”36 The dynamics of power in the federal system are fluid, contested, and ever-changing; rules meant to restrain may empower, or cripple, or send the whole edifice spinning in an unforeseen direction. Words on a page can describe structures of government, but the actual operation of that system—especially with the passage of time—can surprise even the most cautious of prophets. That’s why history books are littered with the broken remains of clever political theories. And it’s why even the best intentions can backfire when the ground rules for government are being written.
This perspective must guide our assessment of the Constitution. The Framers possessed great foresight. But the task they faced was daunting: to define, map, and balance the many powers and incentives of a form of government that nobody in human history had ever experienced. Amazingly, they got a lot right. We have enjoyed extraordinary progress under the Constitution they established. Many of the Framers’ basic structural choices remain central to American governance. However, the Framers also got important things wrong. It’s no damning criticism to say they couldn’t anticipate every respect in which the world—and the Constitution—would change, sometimes in ways that overturned premises of their original plan.
That’s true of impeachment. The United States retains the basic structure hammered out by the Framers. Some dynamics have worked as they imagined in 1787. But others haven’t. The Framers’ design was closely linked to many factual and legal assumptions that no longer hold true. For example, they did not anticipate the birth of political parties, changes in how the vice president is sele
cted, a switch to direct popular election of senators, the escalation of partisan gerrymandering, the creation of a standing army that can instantly be deployed anywhere in the world, or the vast twentieth-century expansion of federal authority. Today, however, it would be strange not to account for these developments in an assessment of the impeachment power. By the same token, it would be irresponsible to ignore lessons that we have learned from centuries of historical experience and multiple impeachment proceedings. Thus, although we’ve discussed the Framers at length and will later return to their debates, that should not be mistaken for a suggestion that their word is final. Now and always, the Constitution belongs to the living.
Broad claims about exercising good judgment in the modern world can be intimidating and unhelpful when stated abstractly. The rest of this book is devoted to clarifying and framing the judgments that must be made about impeachment. As a first cut, we can distill some high-level principles—based in history and the Constitution—to guide our analysis. We’ll approach that task by considering three points: (1) all presidents use power in controversial ways; (2) it is improper to impeach based on mere partisan disagreement; and (3) there are many kinds of misconduct that can justify impeachment.
To End a Presidency Page 3