Impeachment- a Citizen's Guide

by Cass R Sunstein

  I was no expert on the legal intricacies, and I decided to get up to speed in a hurry. I read everything I could on the subject—old books and new books, and primary sources too, including the debates at the Constitutional Convention. Because there was so much to learn, and because the topic turned out to be so fascinating, a kind of unused key that might unlock the whole republic, I studied it obsessively.

  To my amazement, and through some twists of fate, I ended up as an active participant in the Clinton proceedings. I testified before Congress on the meaning of “high crimes and misdemeanors.” I met privately with numerous members of Congress (dozens, I think). I made appearances on radio and television. I spent a little time at the White House, working on my own but also consulting with the president’s legal team, with whom I was broadly in accord. I nearly broke off the conversations when one of the president’s advisers essentially ordered me to write a newspaper column with a specific theme; the idea of taking direction from the White House struck me as corrupt.

  No less than the Nixon controversy, Clinton’s impeachment captured the nation’s attention. There was plenty of talk about the meaning of constitutional standard and that opaque phrase, “high crimes and misdemeanors.” At the same time, most of the national discussion was focused elsewhere, above all on the question whether the president was a terrible person, and how he could have done what he apparently did. There is no question that the effort to impeach Clinton was politically motivated; for his opponents, the whole process seemed exhilarating, a kind of thrill, a highlight of their lives. (The same was true for the Nixon impeachment.) The smallness of the national debates over Clinton’s relationship with Monica Lewinsky, and over whether he had lied about it, could not have been in sharper contrast with the largeness of Benjamin Franklin’s words, and of what he and his colleagues had managed to produce back in Philadelphia. And just a few years after the Clinton impeachment, the real issues, small and large, became shrouded in some kind of mist.

  That’s a shame. My principal goal in this book is to try to dissolve the mist, and in the process recover something about our nation’s origins and aspirations. But what ultimately inspired me to pursue this topic was something far more personal.

  Embattled Farmers

  A few months ago, I moved from New York to Massachusetts. My wife and I chose to live in Concord, even though we are not working there. That wasn’t the most practical decision, but still, it made some sense. Concord is breathtakingly beautiful. It is also historic. It’s where the Revolutionary War started on April 19, 1775, when about seven hundred British soldiers were given what they thought were secret orders—to destroy colonial military supplies being held in Concord. That’s where Paul Revere rode, where dozens of people died and dozens were badly hurt, and where our nation started to be born.

  Know the phrase “the shot heard ’round the world”? If you’d asked me a year ago, I would have said, with complete confidence, that it referred to Bobby Thomson’s game-winning home run in 1951, which won the pennant for the New York Giants. Wrong answer.

  The phrase is a lot older than that. Here’s “Concord Hymn,” written in 1836 by Concord’s Ralph Waldo Emerson for the dedication of the Obelisk, a monument commemorating the Battle of Concord. You might focus on the fourth line (though I confess it is the third that really gets to me):

  By the rude bridge that arched the flood,

  Their flag to April’s breeze unfurled,

  Here once the embattled farmers stood,

  And fired the shot heard round the world.

  The foe long since in silence slept;

  Alike the conqueror silent sleeps;

  And Time the ruined bridge has swept

  Down the dark stream which seaward creeps.

  On this green bank, by this soft stream,

  We set to-day a votive stone;

  That memory may their deed redeem,

  When, like our sires, our sons are gone.

  Spirit, that made those heroes dare

  To die, and leave their children free,

  Bid Time and Nature gently spare

  The shaft we raise to them and thee.5

  Emerson wrote that sixty-one years after the event. No single shot is known to have started the Revolutionary War, but it was in Concord that British soldiers confronted the American militia on North Bridge. The Americans were under strict orders not to shoot unless the British shot first. The British began by firing two or three shots into the Concord River; the Americans interpreted those shots as mere warnings. Consistent with their orders, they did not respond. But the British soon followed with a volley, killing two Americans, including one of their leaders, Captain Isaac Davis, who was shot in the heart—the first American officer to lose his life in the Revolution. He left a widow and four children.

  Seeing this, Major John Buttrick, a leader of the Concord militia, immediately leaped up from the ground and exclaimed, “Fire, fellow soldiers, for God’s sake, fire.” According to those who were actually there, “the word fire ran like electricity through the whole line of Americans . . . and for a few seconds, the word, fire, fire was heard from hundreds of mouths.”6 Acting as one, Concord’s embattled farmers followed Buttrick’s order. (That, I like to think, was the famous shot—the first battle in which the Americans defended themselves.) Two British soldiers were killed. The rest immediately retreated. To their own surprise, the Americans won the initial engagement. The war was on.

  Today, schoolchildren read Emerson’s words when they visit the Minute Man National Historical Park. But to Benjamin Franklin, Alexander Hamilton, James Madison, and their peers, revolutionary Concord was hardly history. It was fresh. It was where their friends and colleagues fought, and where some of them died. It was where the national project began. With such a background, Mrs. Powel’s insistent question—“What have you given us?”—produced Franklin’s inevitable answer.

  Having settled on Concord, my wife and I had to decide among possible houses, for us and our two young children (and the puppy we knew we would soon get—as it turned out, a yellow Labrador retriever named Snow). There were two finalists. The first had been completed just a few months before we visited. It was perfect—gorgeous, sunlit, shining, functional, clean, with a new air-conditioning system, a kitchen to die for, and all the modern amenities. You had to love it. I certainly did.

  The second finalist was built in 1763, by an active participant in the American Revolution named Ephraim Wood, Jr. In 1771, Wood was chosen as one of Concord’s selectmen, town clerk, and assessor and overseer of the poor. (He was reelected to those offices—seventeen times.) In 1773, he served on the committee that decided to protest the tax on tea. According to the Massachusetts Historical Commission, the Wood house, as it is called, is “one of the most important of Concord’s early farmhouses.”7 The house played a role in the Revolutionary War. It stood proud at the inception. Actually, it helped precipitate the fighting. It was one of the places where munitions were being held, which is what prompted the initial British expedition.

  As the Commission explains, “In the weeks before April 19, 1775, when military stores were being sent inland to Concord for hiding, six of 35 barrels of powder and some bullets were hidden on Ephraim Wood’s farm.” Some time before shots were fired, the British forces went to that farm, look-ing for the munitions and also for Wood. They didn’t find either. Walking home, Wood spotted British soldiers, and he managed to escape, carrying munitions on his back. Wood was one of Emerson’s embattled farmers.

  On that fateful day, British soldiers destroyed a lot of property, including every public store they could find. But they didn’t burn down or even damage the houses. Wood returned. As the fighting moved on, got terrible, and then worse, the house remained intact. It was there before the United States turned into a country, and it was there when Jefferson wrote the Declaration of Independence. Just a few months after Jeffe
rson did that, Wood himself, a short distance from his house, was a member of a small group that wrote a document calling for a Constitutional Convention in Concord, resolving:

  that the supreme Legislative, Either in their proper capacity or in Joint Committee are by no means a Body Proper to form & Establish a Constitution or form of Government for Reasones following, viz—first Because we conceive that Constitution, in its proper Idea intends a system of principals established to secure the subject in the Possession of and enjoyment of their Rights & Privileges against any encrouchment of the Governing Part. . . . 8

  Wood’s group, which included Major Buttrick (“Fire, fellow soldiers, for God’s sake, fire!”), has been credited with inventing the whole idea of a convention for constitution-making. His house was there when the Articles of Confederation ruled the land, and it was there when the Federalist papers were written and when the Constitution was ratified. Wood himself was a shoemaker and he set up shop there, as did one of his sons. In the late nineteenth century, it became the site of the Concord Home School.

  But in the twenty-first century, the Wood house had been on the market for a long time. Nobody wanted to buy it. It isn’t close to perfect. Its eighteenth-century origins show. Upstairs, some of the old floors tilt; you feel as if you’re dizzy, or in some kind of fun house. People used to be a lot shorter, and as you enter the front door, you have to bend down. For the same reason, the original ceilings are uncomfortably low.

  The master bedroom seemed built for people under five feet tall. On the property you could find a small “pony barn,” but it was dilapidated. No pony would want to live there. The house and the barn needed a lot of work.

  Of course the Wood house didn’t have air-conditioning. The basement was a mess, full of crazy wires from various decades. We asked a friend of ours, an architect, to have a close look and to give us an evaluation. When he did so, his face was grim. He didn’t have a nice word to say about the house.

  But still: whenever you enter the front door, and bend down, you know that you are where the Revolution started, and where Americans hid arms, ready to fight for their liberty, and where they felt a spirit “that made those heroes dare/To die, and leave their children free.”

  I am one of those children. Reader, I bought it.

  Something Different

  Because impeachment has been so rare, the American people rarely focus on it. That’s good. In a way, it’s great. Impeachment is a remedy of last resort. If We the People don’t discuss impeachment for a decade or two, or three, that’s not the worst news. The likely reason is that our presidents are performing well, or at least well enough. We don’t have to worry over how and whether to get rid of them.

  But in a way, the citizenry’s failure to discuss impeachment is a big problem, above all on republican grounds. Thanks to the fighters and the founders, we are a self-governing people. In the view of some of the authors of our founding document, the impeachment clause was among the most important parts of the entire Constitution.

  Pause over that. With the monarchical history looming in the background, they greatly feared a king. Sure, most of them wanted a powerful executive, with Alexander Hamilton helping to lead the charge. But they were ambivalent. They were gravely concerned about the possibility of abuse. They insisted on safeguards in the event that things went badly wrong (and they had a concrete sense of what that might mean). The impeachment mechanism was the most important of these safeguards. If the nation’s leader proved corrupt, invaded their rights, neglected his duty, or otherwise abused his authority, that mechanism gave We the People a way to say: NO MORE.

  To ordinary citizens, constitutional law has become abstruse, sometimes even unintelligible. The framers could not have anticipated this, and many of them would be surprised and disappointed, even appalled. But it’s true. For example, the First Amendment’s protection of free speech seems straightforward. It may be the most fundamental right of all, and it helps to define our nation’s self-understanding. But the text’s apparently simple words—“Congress shall make no law abridging the freedom of speech”—have given rise to legal doctrines, tests, and subtests applied to such problems as obscenity, commercial speech, and campaign finance regulation. Those doctrines, tests, and subtests aren’t exactly dinner table fare. To understand freedom of speech, law students study casebooks, and the free-speech sections cover hundreds of pages.

  Maybe that’s not ideal, but much of constitutional law is now for specialists, and above all, lawyers and federal judges. Our courts, consisting of unelected judges, devise and apply the tests and subtests.

  But impeachment is something altogether different. It really is designed for We the People, not the judges at all. It’s not just for specialists. It can’t be. As much as any part of the Constitution, the impeachment clause puts the fate of the republic squarely in our hands. And as we’ll see, an understanding of that clause tells us a great deal about our constitutional system as a whole. It’s impossible to understand impeachment without appreciating its intimate connections with other features of that system, and without seeing its origins in the Revolution itself.

  The Constitution is not a seamless web. But it’s definitely a web.

  Neutrality

  Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the president’s policies, and thought that he was otherwise doing a splendid job?

  That’s a good way of ensuring the requisite neutrality. The impeachment mechanism isn’t a way for political losers to overturn the outcome of a legitimate election. Nor is it a way for the public to say: Our leader is doing a rotten job. Put differently, loathing a president is not sufficient grounds for impeaching him, and the risk is that if you loathe him, you might find certain actions a legitimate basis for impeachment even if you would find those grounds patently inadequate if you loved him.

  Here’s a second test. Suppose that you do not think that the president should be impeached. You should ask yourself: Would I think the same thing if I abhorred the president’s policies, and thought that he was otherwise doing a horrific job? That’s an important question as well. If the president’s supporters do not think that he has committed an impeachable offense, they should test their neutrality by asking whether their judgment is being distorted by their political convictions.

  Here’s a third test, and the best of all. Try to put yourself behind a veil of ignorance, in which you know nothing about the president and his policies. You have no idea whether he would win your vote or your support. All you know about are the actions that are said to be a basis for impeachment. If that is all you know, would you think that he should be impeached?

  With the goal of neutrality in mind, I am not going to speak of any current political figure. I am going to focus on the majesty, and the mystery, of impeachment under the U.S. Constitution.

  chapter 2

  From King to President

  With respect to impeachment, the text of the Constitution seems pretty straightforward. There are three principal provisions.

  Article 1, section 2, clause 5, states: “The House of Representatives . . . shall have the sole Power of Impeachment.” Clear enough.

  Section 3, clause 6 of the same article adds, “The Senate shall have the sole Power to try all Impeachments. . . . When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

  That’s also clear. The House of Representatives has the power of impeachment, which is akin to an indictment, to be followed by a trial. No official can be removed until he is tried and convicted in the Senate, which operates like a court.

  Clause 7 goes on to say, “Judgment 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

  Okay. If an official is convicted, he’s out of office (forever). He is removed, but not punished. Still, he can be indicted, tried, and punished separately. We’ll find some puzzles there, but we’re hardly at sea.

  Article 2, section 4, states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

  That’s where things get trickiest. The more you stare at the critical words “high Crimes and Misdemeanors,” the more obscure they seem. Note, by the way, that all civil officers, including members of the cabinet and federal judges, can be impeached, though my principal focus here is on the president.

  The good news is that if we spend a little time in the last decades of the eighteenth century, we can find a framework. The framework turns out to answer most questions (not all of them, but most). In the process, it offers some clues to the deepest aspirations of the Constitution’s founders, and helps tell us what the American Revolution, and American exceptionalism, are all about.

  “Would You Like to Hear My Opinion of Princes?”

  Here’s a part of the Constitution that you might not know, but that provides indispensable context for the impeachment clause:

  No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.