Testimony of Cass R. Sunstein
Karl N. Llewellyn Professor of Law, University of Chicago Law School
House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998
I am grateful to have the opportunity to appear before you today to discuss some constitutional issues in connection with impeachment. The basic question I will be examining is the appropriate understanding of the constitutional phrase, "high Crimes and Misdemeanors." U.S. Const., Art. 1, section 4.
I suggest that with respect to the President, the principal goal of the impeachment clause is to allow impeachment for a narrow category of large-scale abuses of authority that come from the exercise of distinctly presidential powers. Outside of that category of cases, impeachment is generally foreign to our traditions and prohibited by the Constitution. Outside of that category of cases, the appropriate course for any crimes is not impeachment, but a prosecutorial judgment, after the President has left office, whether indictment is appropriate. The original understanding of impeachment strongly this view; equally important, this view is strongly supported by the longstanding historical practice in America.
While it is not my purpose here to defend President Clinton in any way, it is entirely clear that thus far, the charges made by Judge Kenneth Starr and Mr. David Schippers do not make out an appropriate or legitimate case for impeachment under the Constitution. In addition, impeachment of a president, on the basis of these sorts of charges, would greatly unsettle the system of separation of powers. It would threaten to convert impeachment into a legislative weapon to be used any occasion in which a future President is involved, or said to be involved, in unlawful or scandalous conduct. From the constitutional point of view, this would be an extremely unfortunate development.
My statement comes in six parts. Part I deals with the text. Part II explores the founding period. Part III deals briefly with English practice; Part IV briefly explores American practice. Part V examines how we might think about the constitutional question today. Part VI is a brief conclusion.
Constitutional interpretation of course begins with the Constitution's text. The text strongly supports the view that in order to support impeachment of the President, the underlying offense must usually involve the abusive exercise of a distinctly presidential power.
More particularly, the text's opening reference to treason and bribery, together with the word "other," seems to justify a clear and important inference: high crimes and misdemeanors should be understood to be of the same general "kind" as treason and bribery, as in the Latin canon of construction, ejusdem generis. Thus it would be reasonable to think that "other high crimes and misdemeanors" must be in the nature of large-scale abusse of public office - large-scale in the sense of "high" and similar, in kind as well as degree, to treason and bribery. It is entirely sensible, textually speaking, to understand "other high crimes and misdemeanors" in such a way as to conform to "treason" and bribery," and to take the relevant "misdemeanors" to have to meet a certain threshold of "highness" as well.
The text thus supports the view that I will be defending here: impeachment is designed for large-scale abuses of public authority. But reasonable people could disagree about the meaning of the bare text, and it is certainly appropriate to look at other sources.
I now turn to the Constitutional Convention. The extensive debates in the convention strongly suggest a sharply limited conception of impeachment, one that sees the process as a targeted response to the President's abuse of public power through manipulation of distinctly presidential authority, or through procurement of his office by corrupt means.
The initial draft of the Constitution took the form of resolutions presented before the members meeting in Philadelphia on June 13, 1787. One of the key resolutions, found in the Convention's official Journal, said that the President could be impeached for "malpractice, or neglect of duty." On July 20, this provision provoked an extended debate. Three positions dominated the day's discussion. One extreme view, represented by Roger Sherman and attracting very little support, was that the legislature should have the power to remove the Executive at its pleasure. Charles Pinckney, Rufus King and Gouvernor Morris represented the opposing extreme view, that in the new republic, the president "ought not to be impeachable whilst in office." 2 Max Farrand, Records of the Constitutional Convention of 1787, at 64 (1937). This view, which did receive considerable support, was defended partly by reference to the system of separation of powers, which would be compromised by impeachment, and partly by reference to the fact that the President, unlike a monarch, would be subject to periodic elections, a point that seemed to make impeachment less necessary. The third position, which ultimately carried the day, was that the President should be impeachable, but only for a narrow category of abuses of the public trust, by, for example, procuring office by unlawful means, or using distinctly presidential authority for ends that are treasonous.
George Mason took a lead role in promoting the compromise course. Against Pinckney, he argued that it was necessary to counter the risk that the President might obtain his office by corrupting his electors. "Shall that man be above" justice, he asked, "who can commit the most extensive injustice?" Id. at 65. This question identified the risk, to which the convention was quite sensitive, that the President might turn into a near-monarch; and it led the crucial votes -- above all, Morris --- to agree that impeachment might be permitted for (in Morris's words) "corruption & some few other offences." Id. James Madison promptly concurred with Morris, pointing to a case in which a president "might betray his trust to foreign powers." Id. Capturing the emerging consensus of the convention, Edmund Randolph favored impeachment on the ground that the executive "will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands." Id. at 67. The clear trend of the discussion was toward allowing a narrow impeachment power by which the President could be removed only for gross abuses of public authority.
But Pinckney, concerned about the separation of powers, continued to insist that a power of impeachment would eliminate the President's "independence." Id. at 66; see also id. at 68. Morris once again offered the decisive response, urging that he was convinced of the necessity of impeachments, because the president "may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him." Id. at 68. At the same time, Morris insisted, "we should take care to provide some mode that will not make him dependent on the Legislature." Id. at 69. Led by Morris, the convention thus moved toward a compromise position, one that would continue the separation between the President and the Congress, but permit the President to be removed in the most extreme cases. But the discussion ended without agreement on any particular set of terms.
The new draft of the Constitution's impeachment clause emerged two weeks later, on August 6. It would have permitted the president to be impeached, but only for treason, bribery and corruption (apparently exemplified by the President's securing his office by unlawful means). With little additional debate, and for no clear reason, this provision was narrowed on September 4, to "treason and bribery." But in early September, the delegates took up the impeachment clause anew. Here they slightly broadened the grounds for removing the President, but in a way that stayed close to the compromise position that had appeared to carry the day in July.
The opening argument was offered by Mason, who complained that the provision was too narrow to capture his earlier concerns, and that "maladministration" should be added, so as to include "attempts to subvert the Constitution" that would not count as treason or bribery. Id. at 550. Mason's strongest point was that the President should be removable if he attempted to undo the constitutional plan. But Madison insisted that the term "maladministration" was "so vague" that it would "be equivalent to a tenure during pleasure of the Senate," id, which is something that what the framers had been attempting to avoid all along. Hence Mason withdrew "maladministration" and added the new, more precise terms "other high crimes and misdemeanors against the State." Id. at 550. The term "high crimes and misdemeanors" was borrowed from English law, as we shall see; but it received no independent debate in the convention. During the debates, the only subsequent development - and it is not trivial -- was that "against the State" was changed to "against the United States," in order to remove ambiguity. Id. at 551.
There is one further wrinkle. The resulting draft was submitted to the Committee on Arrangement and Style, which deleted the words "against the United States." Hence there is an interpretive puzzle. Was the deletion designed to broaden the legitimate grounds for impeachment? This is extremely unlikely. As its name suggests, the Committee on Style and Arrangment lacked substantive authority (which is not to deny that it made some substantive changes), and it is far more likely that the particular change was made on grounds of redundancy. Hence the impeachment clause, in its final as well as penultimate incarnation, was targeted at high crimes and misdemeanors against the United States.
The clear lesson of these debates is that in designing the provision governing impeachment, the founders were thinking, exclusively or principally, of large-scale abuses of distinctly public authority. The unanimous rejection of "maladministration" suggests that the framers sought to create an authority that was both confined and well-defined. The alleged grounds for impeachment all involved abuses of public trust through the exercise of distinctly presidential powers (or corruption in procuring those powers); there were no references to private crimes, such as murder and assault. Now we cannot overread silence on that point. But the debates strongly suggest that the model for impeachment was the large-scale abuse of public office.
The same view is supported by discussion at the time of ratification and in the early period. The basic point is that impeachment was explained and defended as a way of removing the President when he used his public authority for treasonous or corrupt purposes. I offer a few brief notations here.
Alexander Hamilton explained that the "subjects" of impeachment involve "the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself." The Federalist No. 65. One of the most sustained discussions came from the highly respected (and later Supreme Court Justice) James Iredell, speaking in the North Carolina ratifying convention: "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other." By way of explanation, Iredell referred to a situation in which "the President has received a bribe . . . from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty." 2 Philip Kurland and Ralph Lerner, The Founders' Constitution 165 (1987).
James Wilson wrote similarly in his great 1791 Lectures on Law: "In the United States and in Pennsylvania, impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments." Id. at 166. Another early commentator went so far as to say that "The legitimate causes of impeachment . . . can have reference only to public character, and official duty. . . . In general, those offenses, which may be committed equally by a private person, as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offenses not immediately connected with office, are left to the ordinary course of judicial proceedings . . . ." Id. at 179. This was a contested view; but there was general agreement that that the great office of impeachment was to remove from office those who had abused distinctly public power.
Because the term "high crimes and misdemeanors" comes from English law, it is
possible to contend that it should be interpreted in accordance with English
understandings. See Raoul Berger, Impeachment (1974), which turns largely on
this claim. There is considerable sense in this view - the term certainly does come
from English law - but a serious question might be raised about the analysis. The
most important point is that it is not at all clear that the American understanding
was or has been the same as the English one. Recall that in the framing period,
participants were aware of two exceedingly important differences between
America and England: (1) the election of the President and (2) the separation of
powers. As we have seen, these differences led many to suggest a far narrower
power to impeach the President than to impeach high officials under English law.
Thus it is hazardous to suggest, as some have, that the American understanding
essentially incorporates the English understanding. See Peter Charles Hoffer and
N.E.H. Hull, Impeachment in America, 1635-1805 (1984), at 266-70.(1)
With that
qualification, let me briefly investigate the English practice. As it turns out, that
practice strongly supports the basic argument I am making here. The English idea of "impeachment" arose largely because its objects were, for
various reasons, not subject to the reach of conventional criminal law. Thus
ministers and functionaries of the King were subject to impeachment for public
offenses. Under English law, the term "misdemeanor" was not a reference to what
we would now call misdemeanor (as opposed to felony); it referred instead to
distinctly public misconduct. Thus the term "high crimes and misdemeanors"
represented "a category of political crimes against the state." Raoul Berger,
Impeachment 61 (1973). In English law, there was some ambiguity in the use of the word "high": did the
term refer to the seriousness of the offense, or to the nature of the office against
which the proceeding was aimed? Probably the better view, based on the actual
practice, was that the term referred to both. In any case a "high crime and
misdemeanor" could be a serious crime, but it could also be a serious offense that
was not a technical violation of the criminal law. Serious misconduct, as in the
form of committjng the nation to "an ignominious treaty," was said by some to be
a just basis for impeachment in England. See id. at 63. Whatever one thinks of the
particular example, it is clear that there was no consensus in England that a "high
crime and misdemeanor" had to be a violation of the criminal law; and indeed the
better view is that an impeachable offense, to qualify as such, need not be a crime
in the United States. For present purposes, the more important point is this: The great cases involving
charges of impeachable conduct in England reveal a far readier resort to the
practice than has been the case in America, probably for reasons mentioned above.
But those cases involved either criminal or extremely inappropriate conduct in the
form of abuse of the authority granted by public office, or, in other terms, the kind
of misconduct that someone could engage in only by virtue of holding public
office. Thus a prominent listing of the key cases refers to the following: unlawful
use of publicly appropriated funds; thwarting Parliament's order to store arms and
ammunition in storehouses; preventing a political enemy from standing for
election and causing his unlawful arrest and detention; arbitrarily granting general
black search warrants; and stopping writs of appeal. See id. at 67-68. In addition, a
general list suggests no case in which an impeachment proceeding was brought for
something other than the use of the distinctive authority vested in public officers.
Id. at 69-73. We may summarize the discussion with two simple points. First: The English
practice shows a far readier resort to impeachment than the American practice.
This difference makes sense in light of the fact that the President is subject to
electoral checks and the American commitment to separation of powers. Second:
The English practice was concentrated, exclusively or nearly so, on the abusive
exercise of distinctly public authorities. What about the American practice? The question is exceptionally important, for
our constitutional tradition is not one that relies entirely on the original
understanding of constitutional terms. Historical practices, built up over decades
or even centuries, play a significant role in determining constitutional meaning. This is not the occasion for a detailed analysis of the historical practice in the
United States. I restrict myself to several points here. The most important is that
the exceptional infrequency of serious impeachment proceedings against the
President - even in circumstances in which such proceedings might have appeared
legitimate - suggests a historical understanding that impeachment is appropriate
only in the most extraordinary cases of abuse of distinctly presidential authority.
With respect to President Clinton, nothing of this kind has been alleged thus far. First: We should notice at the outset that there have been sixteen impeachments in
the nation's entire history, that only one President, in that entire history, has been
impeached, and that only one other President, in that history, has been subject to
serious impeachment inquiry. President Nixon was of course subject to an
impeachment inquiry because of a series of alleged abuses of the public trust. Thus
Article 1, of the articles of impeachment against President Nixon, referred to the
an unlawful entry into the headquarters of the Democratic National Committee
"for the purpose of securing official intelligence" and then conspired to cover it
up; Article 2 referred to the allegation that he "repeatedly engaged in conduct
violating the constitutional rights of citizens," including the use of the Internal
Revenue Service, the Federal Bureau of Investigation, and the Secret Service;
Article 3 referred to repeated refusals to produce papers and things under
subpoenas specifically signed "to resolve by direct evidence fundamental, factual
questions relating to Presidential direction, knowledge or approval of actions
demonstrated by other evidence to be substantial grounds for impeachment of the
President." In retrospect, a remarkable feature of these Articles is their relative
restraint - fastening on large-scale abuses of distinctly public authority. President Andrew Johnson was impeached because of a series of allegedly
unlawful acts as President, above all the unlawful discharge of officials who had,
under law, been given immunity from presidential discharge. Posterity has judged
the impeachment of Johnson to have been a highly partisan and indeed illegitimate
affair, one in which political opponents seized on the President's violation of a law
that he believed unconstitutional (rightly, as it turned out). But even in the Johnson
case, when partisan fervor was at its height, the allegations involved the allegedly
large-scale abuse of presidential authority, through the lawless exercise of
presidential power. With respect to the President, at least, impeachment has been
considered as a weapon of rare and last resort, in a way that vindicates the framers'
emphasis on the safeguards of the electoral process. Second: By far the largest majority of impeachments in American history have
involved federal judges. Even here, the number is extremely low: In all of
American history, there have been just twelve cases. Of those cases, by far the
largest number - and arguably all - involved at least some allegation of abuse of
distinctly judicial office. It is possible to argue that one or two, or perhaps more, of
those cases also involved egregious private behavior. But this interpretation is
itself questionable, and the most extreme cases involving impeachment of federal
judges should not be understood to set a precedent for impeachment of presidents,
a point to which I will return. Third: To have a sense of American history, it is as important to have a sense of
the cases in which impeachment did not occur as of cases in which it did occur.
This topic has received far too little emphasis during discussion of the
impeachment question. An examination of American history shows that even
when impeachment might well have been contemplated, cooler heads prevailed,
and both the nation and Congress insisted on an extremely high standard. Consider
here simply a few cases (they could easily be multiplied) from twentieth century
history; in all of these the House has acted with great restraint. The House was
correct to do so, both as a matter of constitutional law and as a matter of prudence.
I list the cases not to complain about the failure to pursue the impeachment route,
but on the contrary to suggest the solidity of the American presumption against
impeachment. -- In a decision that has received considerable publicity in the last weeks, the
House refused to include, as an impeachment count, legitimate allegations of
income tax evasion against President Nixon. The basic ground for the refusal was
that income tax evasion - though hardly excusable and indeed a major breach of
every citizen's obligation - did not amount to a misuse of distinctly presidential
authority. -- Presidents Reagan was allegedly involved in unlawful misconduct in connection
with the Iran Contra controversy; at least he presided over an administration
allegedly involved in such unlawful misconduct. Indeed, the independent
counsel's investigation yielded no fewer than seven guilty pleas and four
convictions, including convictions of relatively high-level executive branch
officials. Many people believed or feared that President Reagan was personally involved in
the unlawful acts. Thus it would have been possible to commence impeachment
hearings to investigate the charges. Nonetheless, impeachment was never
considered as a serious option. -- Many people have alleged that Vice-President Bush was involved in aspects of
the Iran-Contra controversy, and some people suggested that he had personal
knowledge of the unlawful activity. An impeachment investigation would not have
been hard to imagine. Here too impeachment never emerged as a serious
possibility. -- In World War II, the Lend-Lease Act allowed the President to build and sell
arms and ammunition to other nations, most notably England. Before the passage
of the Act, the sale of arms to other nations, including Britain, was prohibited by
law. Nonetheless, it is generally agreed that President Roosevelt was secretly and
unlawfully transferring arms - including over 20,000 airplanes, rifles, and
ammunition - to England. Indeed, illegal approval of such weapons transfers were
quite routine in two full months before Congress authorized it. Even President
Roosevelt's Secretary of State "felt troubled by the illegality and deception."
Aaron Fellmeth, A Divorce Waiting to Happen, 3 Buff J Intl. L. 413, 487
(1996-97). It is often said that Roosevelt both deceived and lied to Congress and
the American people in connection with the program. -- There were widespread claims of a secret "deal" between President Ford and
President Nixon, culminating in the pardon received by President Ford. At the
time, many Americans suspected that such a "deal" has occurred. So far as I am
aware, no evidence supports any such suspicion. But in view of the climate of the
time, these claims might well have produced an impeachment inquiry. --It was widely believed that President Kennedy was involved in a serious of illicit
sexual relationships while in office, including an illicit sexual relationship with a
woman simultaneously involved with a member of the Mafia. This relationship -
some people have suggested -- would potentially compromise the efforts of the
Department of Justice. Some people have alleged that this reckless behavior,
whether or not involving technical violations of law, reflected serious indifference
to law enforcement efforts. Yet no one has suggested, at the time or since, that
impeachment was the appropriate course. These are simply a few random examples, and doubtless reasonable people will
suggest that some or all of them involve conduct far less egregious, or less
legitimately impeachable, than has been alleged with respect to President Clinton.
Other reasonable people will disagree; and if these examples seem weaker, it
should not be hard to come up with others. (Consider, as just one further
illustration, the fact that President Lincoln suspended the writ of habeas corpus, a
serious violation of civil liberties that was ruled unlawful.) My basic point is to
establish a lengthy historical practice of great restraint. The fact that only one
President has been impeached, when many others might have been, attests to the
strength and longevity of our historical understandings. Impeachment of President
Clinton, on the basis of the charges made thus far, would be an astonishing
departure from those understandings. The Constitution allows impeachment of all civil officers - not only the President,
but also the Vice President, cabinet heads, and judges - for high crimes and
misdemeanors. Does this mean that the same standard applies to all such officers?
Are there differences between the legitimate grounds for impeaching a President
and the legitimate grounds for impeaching a federal judge? The question is
extremely important for current purposes. If the same standards apply, it would
make sense to say that the relatively more lenient standards applied to the
impeachment of federal judges apply as well to the impeachment of presidents.
My basic conclusion is that the standard for impeaching the President has been
much higher, and properly so. We can distinguish three possible positions here. First: It might be thought that the
legitimate grounds for impeachment are the same for all officers. Second: It might
be thought that to impeach the President, Congress must meet a higher standard;
what counts as a high crime or misdemeanor is context-specific. Third: it might be
thought that the constitutional standard is the same, but that the House legitimately
exercises prosecutorial discretion so as to match offense to office. On this view,
for example, perjury may be a clear basis for impeaching a judge (who is charged
with operating the system of justice), but not impeaching for the President. For
constitutional purposes, we might collapse the first and third positions, since no
one disagrees that the House, in its exercise of prosecutorial discretion, might
legitimately choose not to proceed against someone who has committed
technically impeachable offenses, and that the nature of the office is relevant to the
exercise of discretion. At first glance, the constitutional text seems to support the view that the
constitutional standards are identical. As noted, the text is the same. But there are
several problems with this apparently simple position. The first is based on the
history recited above. The framers' particular concerns involved protection of the
President from the discretionary authority of Congress; they sought to insulate the
President in particular from a high degree of dependence. They expressed no such
concern about judges. Judicial independence is of course important, but the fact that judges have life
tenure might well be thought to justify a somewhat more expansive impeachment
power. If judges can be impeached only for gross abuses, then the nation will be
stuck with judges for their whole lives; this practical concern argues in favor of a
lower standard for impeaching judges. Indeed, this practical concern might
reasonably be labelled a structural one. The Constitution's structure -- life tenure
for judges, four year terms for presidents - argues in favor of a narrower
impeachment power for the President. The second argument is that judges have tenure "during good behavior," a
provision that does not, of course, apply to the President. The President may not be
removed for "bad behavior." Thus it might be suggested that with respect to
judges, the "good behavior" provision qualifies or works hand in hand with the
impeachment clause. It does so as by allowing impeachment of judges on
somewhat broader grounds - bad behavior, not simply high crimes and
misdemeanors, or perhaps high crimes and misdemeanors, understood, in the
context of judges, to include bad behavior. But I do not believe that this argument is convincing. Judges may not be removed
from office for bad behavior; they may be removed only for high crimes and
misdemeanors. The function of the "good behavior" clause is not to give Congress
broader power to remove judges from office; it is simply to make clear that judges
ordinarily have life tenure. Thus there is no authority in Congress to remove
judges who have not engaged in "good behavior." On the other hand, historical practice suggests a broader congressional power to
impeach judges than Presidents, and indeed it suggests a special congressional
reluctance to proceed against the President. We might say that our history has
converged on the judgment that there is a lower threshold for judges than for
presidents. Perhaps the theory is that judges cannot otherwise be removed from
office; perhaps the theory is that it is uniquely destabilizing if Presidents are too
freely subject to removal from office. The existence of a wide range of political
checks on presidential misconduct has apparently been thought to provide a kind
of surrogate safeguard, one that makes impeachment a remedy of rare resort. Thus far I have suggested that both the original understanding and historical
practice converge on a simple principle. The basic point of the impeachment
provision is to allow the House of Representatives to impeach the President of the
United States for egregious misconduct that amounts to the abusive misuse of the
authority of his office. This principle does not exclude the possibility that a
president would be impeachable for an extremely heinous "private" crime, such
as murder or rape. But it suggests that outside of such extraordinary (and
unprecedented and most unlikely) cases, impeachment is unacceptable. The clear
implication is that the charges made thus far by Judge Kenneth Starr and David
Schippers do not, if proved, make out any legitimately impeachable offenses under
the Constitution. In the present context, it would be possible to respond to this suggestion in two
different ways. First, it might be urged that actual or possible counts against
President Clinton - frequent lies to the American public, false statements under
oath, conspiracy to ensure that such false statements are made, perhaps perjury,
interactions with his advisers designed to promote further falsehoods under oath,
and so forth - are very serious indeed and that if these very serious charges are
deemed a legitimate basis for impeachment, little or nothing will be done to alter
the traditional conception of impeachment. Perhaps some of these possible counts,
involving interactions with his advisers designed to promote lies or continued
procedural objections to the underlying inquiry, even amount to abuse of power.
Second, it might be said that whatever history and past practice show, we should
understand the Constitution's text to allow the President to be impeached, via the
democratic channels, whenever a serious charge, of one sort or another, is both
made and proved. I take up these two responses in sequence. If the first claim is that certain kinds of falsehoods under oath, perjury, conspiracy
to lie, and so forth, could be a legitimate basis for impeachment, there can be no
objection. A false statement under oath about a practice of using the IRS to punish
political opponents would almost certainly be an impeachable offense; so too
about a false statement about the acceptance of a bribe to veto legislation. Thus
false statements under oath might well be a legitimate basis for impeachment.
Indeed, lying to the American people may itself be an impeachable offense if, for
example, the President says that a treaty should be signed because it is in the best
interest of the United States when in fact he supports the treaty because its
signatories have agreed to give him a lot of money. But it does not diminish the
universal importance of telling the truth under oath to say that whether perjury or a
false statement is an impeachable offense depends on what it is a false statement
about. The same is true for "obstruction of justice" or interactions with advisers
designed to promote the underlying falsehood. Anyone can be prosecuted for violating the criminal law, and if the President has
violated the criminal law, he is properly subject to criminal prosecution after his
term ends. But it does not make sense to say, for example, that an American
President could be impeached for false statements under oath(2) in connection with
a traffic accident in which he was involved, or that a false statement under oath,
designed to protect a friend in a negligence action, is a legitimate basis for
impeachment. Probably the best general statement is that a false statement under
oath is an appropriate basis for impeachment if and only if the false statement
involved conduct that by itself raises serious questions about abuse of office. A
false statement about an illicit consensual sexual relationship, and a "conspiracy"
to cover up that relationship, is not excusable or acceptable; but it is not a high
crime or misdemeanor under the Constitution. The same is true for the other
allegations made thus far. It trivializes the criminal law to say that some violations
of the criminal law do not matter, or matter much. But it trivializes the
Constitution to say that any false statement under oath, regardless of its subject
matter, provides a proper basis for impeachment. Of course people of good faith could say that the President has a special obligation
to the truth, especially in a court of law, and that it is therefore reasonable to
consider impeachment whenever the President has violated that obligation. It is
certainly true that as the nation's chief law enforcement officer, the President as a
special obligation to the truth. Perhaps such people also believe that false
statements under oath, and associated misconduct, are genuinely unique and that
impeachment for such statements and such misconduct would therefore fail to do
damage to our historical practice of resorting to impeachment only in the most
extreme cases. But this position has serious problems of its own. Even if it would
be possible, in principle, for reasonable people to confine the current alleged basis
for impeachment, it is extremely doubtful that the line could be held in practice.
Thus a judgment that the current grounds are constitutionally appropriate would
set an exceedingly dangerous precedent for the future, a precedent that could
threaten to turn impeachment into a political weapon, in a way that would produce
considerable instability in the constitutional order. Consider, for example, the fact that reasonable people can and do find tax evasion
more serious than false statements about a consensual sexual activity, and that
reasonable people can and do find an alleged unlawful arms deal more serious,
from the constitutional standpoint, than either. Here is the underlying problem.
Whenever serious charges are made, participants in politics may well be pushed in
particular directions by predictable partisan pressures. The serious risk is therefore
that contrary to the constitutional plan, impeachment will become a partisan tool,
to be used by reference to legitimate arguments by people who have a great deal to
gain. A special risk of a ready resort to the impeachment instrument is that it would
interact, in destructive ways, with existing trends in American democracy. Those
trends - toward an emphasis on scandals and toward sensationalistic charges -
have characterized the conduct of members of both parties in the last decades. For
those who love this country and its institutions, the use of impeachment, in such
cases, is quite ominous -- not least because of the demonstrable good faith of many
of those who are recommending it. From the standpoint of the constitutional structure, it is far better to try a kind of
line in the sand, one that has been characteristic of our constitutional practice for
all of our history: A practice of invoking impeachment only for the largest cases of
abuse of distinctly presidential authority. Text, history, and longstanding practice suggest that the notion of "high crimes
and misdemeanors" should generally be understood to refer to large-scale abuses
that involve the authority that comes from occupying a particular public office.
Thus a President who accepted a bribe from a foreign nation - or who failed to
attend to the public business during a war - would be legitimately subject to
impeachment. Perjury, or false statements under oath, could certainly qualify as
impeachable offenses if they involved (for example) lies about using the Internal
Revenue Service to punish one's political opponents or about giving arms,
unlawfully, to another nation. But the most ordinary predicate for impeachment is
an act, by the President, that amounts to a large-scale abuse of distinctly
presidential authority. If there is ever to be impeachment outside of that category of cases, it should be
exceedingly rare. The current allegations against President Clinton do not justify a
departure from our traditional practices. Such a departure would be not trivially
but profoundly destabilizing; it would be far wiser to adhere to our traditions and
to leave the hardest constitutional problems for another, and better, occasion.
III. Historical Practice in America
V. How Should We Understand Impeachment Today?
Hoffer and Hull examine state practices and show that impeachment was relatively common in the colonies and the
states. This practice does not, however, show that impeachment of the President was intended to be relatively
common, and I do not understand Hoffer and Hull to have so argued.