Testimony of Jack Rakove
Coe Professor of History and American Studies, Stanford University
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
Historians who spend their waking hours in the eighteenth century, as I do, have many opportunities to reflect on the way in which contemporary political debate uses and abuses the evidence from the past. But we rarely have the chance to contribute to a debate potentially as momentous as this committee's proceedings promise to be. I am accordingly very grateful to the committee for giving me the opportunity to add my perspective to that of the other members of today's panels.
Any attempt to interpret the origins and scope of the impeachment clauses of the Constitution must begin with a few preliminary observations about the nature of the inquiry. Had presidential impeachment evolved into a common, often invoked element of our constitutional system, there would be no need to have anything like today's hearing. We would then have developed what might be called a doctrine of impeachment, in the same way that so many other aspects of our constitutional system--our constitutional law, or many of the working rules of Congress--can be said to embody constitutional doctrines. But clearly that is not the case in the realm of presidential impeachment. The proceedings involving Presidents Andrew Johnson and Richard Nixon offer precedents that may help Congress to set the procedures for proposing and trying an impeachment. They are far less helpful in resolving uncertainties about the range of offenses for which a president may be impeached. The circumstances in those two cases differ as much from each other as they do from the misbehavior for which President Clinton now faces impeachment. Two precedents set a century apart do not a doctrine make.
In such circumstances, it is inevitable that we have to return to the constitutional debates of the 1780s, and the larger history of which they were a part, and try to make some sense of why the framers included provisions for impeachment in the Constitution, and how they understood the key phrases that are most germane to our contemporary debate. Here we face other difficulties. The historical evidence relating to the "original meaning" of the key clause defining impeachable offenses nearly as full as we could wish. For better or worse, "other high Crimes and Misdemeanors" is one of those many tantalizing phrases than entered the Constitution without adequate discussion; its addition was more than an afterthought but something less than a decision taken only after careful efforts at definition had been scrupulously undertaken. It is of course true that the phrase did not appear from nowhere; its use in English impeachments dates to 1386. But it was not the term that the American revolutionaries had employed when they wrote impeachment clauses in some of the early state constitutions, and we may wonder how well the framers of the Constitution understood how that term had been used in England. We can also ask how useful any definition of "high crimes and misdemeanors" derived from English practice could be in an American setting. Impeachment had originated in the fourteenth century, but it had dropped out of English usage for roughly a century and a half before being revived in 1621. It flourished again for another century before largely lapsing again after 1715, and during this period--its great heyday--it was intimately involved with the ongoing constitutional struggles between Parliament and Crown that led to civil war in the 1640s, the execution of Charles I in 1649, near martial law in the 1650s, bitter partisan conflict in the 1670s, another revolution in 1689, and renewed partisan strife over the next quarter century. During this era, in short, impeachment was a political weapon deployed under often extreme conditions. Whether any definition of "high crimes and misdemeanors" drawn from that violent history can apply to the processes of constitutional government we have followed since our own Revolution is, I think, a fair question.
I remind the committee of this history, because in examining the origins of the impeachment clause, the historian's first task is to explain why we should be cautious about ascribing too precise a meaning to this seemingly potent but admittedly obscure phrase. The fact that Americans have not had occasion to develop a true doctrine from the sketchy definition that the framers derived from a vestigial English practice is significant in itself. There must be compelling reasons why impeachment remains so infrequent. It took three years of repeated and embittered disputes over the most fundamental questions of policy--the Reconstruction of the defeated Confederacy--to bring about the impeachment of Andrew Johnson, and even then the pretext under which Congress acted was of doubtful constitutionality. In the case of Richard Nixon, it took the continual unraveling of a conspiracy to obstruct justice to produce the consensus in this committee to recommend impeachment. These precedents suggest that presidential impeachment should remain a remedy to be deployed only in extremely serious and unequivocal cases, where we have a high degree of confidence that the conduct in question falls squarely and unambiguously within the parameters of a persuasive definition, and where the insult to the constitutional system is grave indeed. Otherwise we do risk lowering the threshold for impeachment in a way that would genuinely threaten a transformation of our constitutional system.
Having reminded the committee of why this is a difficult subject, however, my greater obligation is to shed the best light on it that I can, from the vantage point of a scholar who has spent the last decade and a half trying to make sense of why the Constitution took the form it did. To do this, it is important to look beyond the controverted language of the impeachment clause, and to ask, Where does this clause fit within the larger framework of constitutional government the framers were erecting? For impeachment was never an issue that the framers truly considered for its own sake. It was only one problem among many that they faced in trying, with no useful precedents at hand, to design the institution of an elected national executive whose political influence and authority were almost impossible to anticipate. For of all the institutions the framers created in 1787, the most novel was the presidency.
Though some of the important changes in the language of the impeachment clause occurred in various committees of the Convention, for which we have no records of debate, the task of tracing its evolution is relatively easy. We can draw at least four significant conclusions about this process.
First, the decision to make the Senate the trial court for impeachments came only within the final fortnight of deliberation. Until then, the framers had assumed that task would lie with the Supreme Court. The most likely explanation for this belated change is that well into August, the framers assumed that the Senate, not the president, would be vested with the appointment- and the treaty-making powers, and these were two forms of power whose abuse impeachment was manifestly designed to reach and correct.
Second, in their efforts to characterize or list the offenses for which impeachment would be warranted, the framers moved from more general terms to more specific ones. In the original clause moved by the North Carolina delegates Hugh Williamson and William Davie on June 2, the operative words were "mal-practice or neglect of duty" (language drawn from their own state's constitution). Two months later, the committee of style replaced this phrase with "treason, bribery, or corruption." In early September, the committee on postponed parts deleted "corruption" from this list, so that only two fairly unambiguous offenses lay before the Convention when George Mason proposed the addition of "maladministration" on September 8, arguing that there were other "great and dangerous offences" that might warrant impeachment, including "Attempts to subvert the Constitution." Mason's term was capacious enough to restore the original Williamson-Davie standard, and that is why James Madison immediately objected that "So vague a term will be equivalent to a tenure during pleasure of the Senate." Mason obliged by proposing "other high Crimes and Misdemeanors against the State." Madison still worried that "misdemeanor" was too expansive a term, but his effort to delete it failed. (The Convention also changed the formula "against the State" to "against the United States," but a few days later the committee of style silently deleted that phrase, presumably because they deemed the qualifying words redundant.) Mason's amendment obviously had the effect of enlarging the scope of impeachment, but Madison's objection again narrowed this shift beyond what Mason desired. "Other high crimes and misdemeanors" will always defy precise definition, but it is still less ambiguous or subjective than "malpractice" or "maladministration."
Third, the examples the delegates used to describe acts warranting impeachment (notably during the debate of July 20) all confirm that they were thinking primarily, indeed exclusively, about failure to perform the duties of office or a misuse of its powers, in ways that manifestly endangered the general public good. That does not, of course, eliminate the possibility that reprehensible private acts might fall within a category of "high misdemeanor"; it only suggests that such acts were not what they were actively concerned with. For obvious reasons they were preoccupied with the public performance of institutions and officeholders, not the regulation of all the human vices.
Fourth, while the framers obviously concluded that impeachment was a device the Constitution could not afford to discard, several of them argued that it would probably prove unnecessary, primarily because regularly held elections would offer an adequate method of removing misbehaving officials from power. Here, again, the contrast with seventeenth- and eighteenth-century English practice is both striking and instructive, for there elections rarely if ever affected the tenure of the royal officials who were the main targets of impeachment.
All of these points identify important considerations that any attempt to interpret the impeachment provisions must ponder. But isolated as they are from the larger debates of which they were only a small (and not especially important) part, they offer an incomplete picture of where impeachment fit in the larger constitutional scheme. From the beginning, impeachment was very much tied to the problem of the presidency. But that problem was the single most perplexing issue the framers confronted. The whole subject of the presidency was "peculiarly embarrassing," Madison complained, and the decisions the Convention reached came only after "tedious and reiterated discussions." Understanding why this was the case will illuminate the framers' notions of impeachment. More important, it will strongly suggest that any move to stretch the impeachment clause to cover acts of marginal relation to the official duties of the presidency risks violating the basic constitutional design.
It is often said that, in creating the presidency, the framers consciously rejected the parliamentary system we associate with Britain. Indeed, one stock argument against impeachment is that its casual or frequent use would turn our system of separated powers into something it was never meant to be. But in fact, a full blown model of parliamentary government was not yet available for the framers to reject. In the eighteenth century, the ministers who formed the Cabinet were still much more the servants of the king than Parliament. Kings had to pick men who enjoyed the confidence of Parliament, but they gained this confidence largely by forming alliances among cliques of the aristocracy who then used their own resources and those of the government to manage parliamentary majorities that were almost always stable and docile. Elections had almost no effect on the composition of government. Ministers often had to work much harder to maintain the confidence and favor of the king, who could pick and dismiss his ministers for entirely personal reasons, independent of parliamentary concern. Only rarely did cabinets act as closely unified bodies; more often they were shifting alliances depending on political agreements among the principal members.
The framers did not start their deliberations on the executive by rejecting parliamentary models of ministerial government. Instead, they began by reaching quick agreement on two other principles. The first was that the executive power should ultimately be vested in a single person (what might be called the Harry S Truman buck-stopping-here idea of presidential responsibility). And they further agreed that the president should be armed with at least a limited veto over legislation. In Britain the veto had long since become obsolete; and most of the American state constitutions had deprived the governor of that weapon. The fact that the framers restored it so quickly offers the first important clue to their idea of executive power; they wanted a president who would be able to resist the "encroachments" of the legislature, the branch of government they feared most--an officer capable of resisting what Madison called the "impetuous vortex" of legislative power.
After reaching agreement on these two points in early June 1787, however, the Convention found itself befuddled when it returned to the presidency in late July. The first problem was election. The framers simply had no idea which mode of electing a president would be most effective. Popular election seemed doubtful because the people would not have enough information to make an informed or conclusive choice among a plethora of candidates. The idea of an electoral college seemed attractive, until the framers began to doubt that electors would be persons of quality. The most objectionable mode of election was also the most practical: to let Congress, which would presumably be well informed, make the choice. But because the framers were intent on making the president as independent of Congress as possible, that mode of election meant giving the president a long term (because short-timers would not be able to stand up to Congress), and also restricting his tenure to a single term (because otherwise he would toady up to Congress). Thus when impeachment was seriously debated in late July, one argument for retaining this vestigial English practice was that it would enable the president to serve the seven-year term then favored, because it would provide a remedy in case he abused his trust. (Conversely, impeachment would be less necessary with a shorter term and reeligibility.)
The presidency took decisive shape only during the final weeks of debate. Two developments were critical. First, a reaction against the idea that the Senate should discharge certain executive powers (appointments and foreign relations) redounded to the advantage of the president. Second, a renewed discussion of congressional election of the president on August 24 found the Convention evenly divided, leading the whole question to be submitted to the committee on postponed parts. It in turn proposed reviving the electoral college, transferring the appointment and treaty-making powers to the president (acting with the advice and consent of the Senate), eliminating "corruption" as a basis for impeachment, and replacing the Supreme Court with the Senate as the trial court for impeachments. The Convention approved all these proposals between September 4-8, with only modest changes (the most important being the substitution of the House for the Senate in electing the president when the electoral college failed to produce a majority).
The one constant factor driving these decisions, it must be stressed, was the desire to make the president as independent of Congress as possible. That concern had been expressed since early June. It was not a reaction against the model of parliamentary government, because in Britain the Crown effectively controlled Parliament. It sprang instead from the concern, repeatedly voiced by Madison but echoed by others, that the legislature was the most dangerous branch of government. It was manifested in the continued jockeying to find some alternative--any alternative--to legislative election of the president. The framers had to spend three days agonizing over the electoral college because they were concerned that the committee's proposal to make the Senate the contingent electors would leave the president nothing more than a tool of an aristocratic upper house with which it was now to share power. By eventually hitting upon the idea of allowing the House (voting by states) to assume that duty, the Convention made it possible (they thought) to unite the Senate and the president, through their shared powers, against the House, the one institution which Madison thought most likely to upset the equilibrium of constitutional government.
It is this concern, which gathered force the longer the Convention sat, which suggests that any effort to expand the scope of the impeachment power by a broad construction of "high Crimes and Misdemeanors" should be viewed with some skepticism. Impeachment was a blunt weapon in the great English constitutional disputes of the seventeenth century that was retained in American practice after it had become nearly moribund in the country of its birth. In the colonies and the new American states, we know (from the work of Peter Hoffer and N. E. H. Hull) that it operated in a much less controversial way to discipline lesser executive and judicial officials who had misused their offices or otherwise acted corruptly. In theory it could have been used against governors, too, the highest executive officials in the states. But in the first revolutionary-era constitutions of the mid-1770s, those governors were regarded as distinctly subordinate officials with little independent authority or political influence of their own; typically serving one-year terms and elected by the state assemblies, their removal would have had little if any disruptive impact on the equilibrium of state government. But in 1787 the American presidency was constituted on very different assumptions. Preserving constitutional equilibrium between the three co-equal branches of the new federal constitution was important in a way that was not true in the early state constitutions, where the legislature was clearly supreme while the executive and judiciary were distinctly inferior. That is why any effort to alter the standards of impeachment in a case where the performance of presidential duty is implicated only indirectly must be viewed skeptically.
That a deliberate misleading of a grand jury performing its legal duty--even under rather exceptional circumstances--warrants careful consideration as an impeachable offense cannot be denied. But neither does that simple fact, taken alone, provide a compelling or sufficient case to sustain an impeachment. Here, as in other areas of constitutional governance, a balancing of competing concerns is necessary. Whatever insult the president's conduct may have delivered to the legal system--and the consequences of that insult remain both speculative and doubtful--must be weighed against the palpable stretching of the boundaries of impeachable offenses that this inquiry risks entailing. Whatever misconduct took place lies at the far boundaries of what might be considered impeachable, primarily because it concerns an incident which took place well prior to the president's entrance into office, and which involved behavior that was essentially private and non-official even if subsequent proceedings gave it a legal and public character. Given the concern that leading framers of the Constitution voiced about the danger of subordinating the executive to legislative control and manipulation, an expansive reading of the impeachment clause in this context cannot, in my view, be sustained.
When the report of the independent counsel was first published in September, I wrote an essay for Chairman Hyde's and my own hometown newspaper, the Chicago Tribune, which took as its point of departure the Chairman's injunction that this committee, and members of Congress, must do what the Constitution requires. That injunction was not really as simple, I argued, as it first appears. Doing what the Constitution requires means, in the first instance, asking what duty has been passed on to you by the historic Constitution adopted in 1787-88, and that requires wrestling with the less than transparent language of the impeachment clause. It also means asking, what does our present Constitution require you to do--a statement which recognizes that members of Congress are products of a political party system which is essential to the real functioning of our constitutional system, even if it is not formally recognized in the constitutional text. But third, and most important, doing what the Constitution requires also means asking: What Constitution do we want to have when this controversy has ended? For make no mistake, a decision to proceed with impeachment in this matter would enlarge the impeachment clause well beyond its current boundaries, and in ways that threaten to distort the original constitutional design.