CONVICTION, NULLIFICATION, AND THE LIMITS OF IMPEACHMENT AS POLITICS.

Author:Broughton, J. Richard
 
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ABSTRACT

The election of Donald Trump to the American presidency has brought with it controversies that have prompted serious talk about presidential impeachment. Even if an impeachment of President Trump never comes to fruition, the national conversation about it has revived the need for serious study of presidential impeachment--the kind of serious study that took place twenty years ago during and after President Clinton's impeachment. This Article contributes to the revival of academic literature on this subject by exploring the institutional role of the Senate as a court of impeachment. It gives attention to the Constitution's mandate that the Senate decide whether the impeached Party should be "convicted"--a term that is used elsewhere in the Constitution and always in the criminal law context. Combined with other attributes of impeachment found in the constitutional text and historical understandings, the requirement of a "conviction" before removal helps give impeachment a criminal justice character that mitigates, though does not destroy, its political character. Accordingly, this Article argues that the political character of impeachment is often overstated. The Senate is transformed into something different than a conventional political or legislative body. This Article therefore considers various approaches to deciding whether to convict, including one that views the Senator simply as finder of factual guilt, one that combines a finding of factual guilt with a legal finding that the offense is constitutionally impeachable, and another approach that separates the normative value of removal from the factual and legal conclusions. The Article further argues that considerations of raw partisanship or electoral politics as a basis for acquittal are akin to a form of nullification similar to that found in the criminal law. In light of the quasi-criminal-quasi-judicial role that the Senate plays as a court of impeachment, the importance of presidential responsibility, and the need to protect the legitimacy of the Senate and impeachment as a constitutional defense mechanism, the Senate should be just as wary of partisan or politically-motivated acquittals, whether overt or covert, as it should be of partisan or politically-motivated convictions.

CONTENTS INTRODUCTION I. "CONVICTION," CRIMINAL LAW TERMINOLOGY, AND THE NULLIFICATION ANALOGUE A. Impeachment Trials as (Quasi) Criminal Justice B. Nullification in the Criminal Law C. Nullification in Impeachments II. SENATE PRACTICE AND THE COMPETING APPROACHES TO "CONVICTING" ON IMPEACHMENT A. Views from Presidential Impeachment Trials B. Categorizing the Approaches to "Convicting" on Impeachment C. Evaluating the Approaches to "Convicting" on Impeachment III. THE LIMITS OF IMPEACHMENT AS POLITICS CONCLUSION INTRODUCTION

Impeachment talk is in the air. Again. To varying degrees of seriousness, it has reared its head at various points over the past twenty years. (1) But Donald Trump's election to the presidency has revived serious impeachment conversation in the country, even if a Trump impeachment seems, for the moment at least, relatively unlikely. His ascendancy to the Oval Office brought with it concerns about his private business dealings and his ability to comply with the Constitution's Foreign Emoluments Clause; (2) about his campaign's alleged connections to efforts by the Russian government to influence the 2016 presidential election in Trump's favor; (3) his decision to fire the Director of the Federal Bureau of Investigation, and subsequent statements that led some to wonder whether that action was an effort to obstruct justice; (4) and speculation that he may be planning a way to fire, or thwart the work of, Special Counsel Robert Mueller. (5) All of this has provided fodder for an increasingly robust rhetoric of presidential impeachment. (6) Indeed, the phrase "constitutional crisis" has been uttered by many a commentator of late. (7)

The subject of impeachment more broadly is a subject that, of course, overwhelmed the literature two decades ago. Perhaps we learned some important lessons. Perhaps we thought that the experience of the Clinton impeachment made it less likely that impeachments would form a significant part of the business of future Congresses. Perhaps we believed that public officials would be more careful about their official behavior. Perhaps we hoped that Congress learned a harsh lesson about public perceptions of partisan impeachments. (8)

But the Trump presidency seems to have reignited interest in impeachment. Perhaps, then, the Trump presidency has reminded lawyers and legal scholars that we must not give up on impeachment as a serious area of scholarly inquiry. Congress, after all, has not forgotten about impeachment. Impeachment talk has not been all bark and no bite. Within the past decade, the Senate has convicted a federal judge--Thomas Porteus of Louisiana--on articles of impeachment, (9) and had planned a trial on the articles of impeachment that the House approved against District Judge Samuel Kent of Texas, before Judge Kent resigned instead. (10) Of course, perhaps judicial impeachments raise somewhat different concerns than presidential ones. (11) But the point is that these judicial impeachments show that Congress still knows how to employ impeachment under the right circumstances, and not merely as a weapon for partisan advantage or embarrassment of political opponents. Still, we know that the extreme partisanship that prevails in the modern Congress can influence impeachment work. (12) For example, where the president and congressional majorities represent different parties, extremes in partisanship could make impeachment of a president, or a presidential appointee, a real possibility. (13) By the same token, such extreme partisanship could make it unlikely, if not virtually impossible, to impeach a president when he is of the same party as the House majority, or to convict him when he shares a political affiliation with the Senate majority.

Perhaps, then, though there are surely lessons to be learned from judicial impeachments and though the legal standards may be the same, (14) one can think about judicial and presidential impeachments differently. This possibility is enhanced when you add the likelihood of politically divided government in the political branches. Since the Clinton impeachment, articles of impeachment were formally filed against numerous public officials--in the George W. Bush Administration alone, articles of impeachment were filed against President Bush, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and Attorney General Alberto Gonzales. (15) During the Obama years, articles of impeachment were filed against Attorney General Eric Holder and IRS Commissioner John Koskinen. (16) And, now, at least one formal article of impeachment has been filed against President Trump. (17) Even beyond concerns about naked partisanship and the reality of modern congressional politics, one cannot ignore the possibility that Congress as an institution may at some point feel legitimately compelled to protect itself and other institutions from a President whose public conduct poses a threat to the rule of law, constitutional government, or the separation of powers. Partisan impeachment concerns aside, then, impeachment remains an essential feature of our government of limited and enumerated powers, a legitimate and meaningful legislative weapon for assuring public accountability to the Constitution and rule of law--its somewhat troubled history notwithstanding. Legal scholarship therefore should continue to urge understanding in this area, and not feel content to leave impeachment permanently in the late-1990s.

Of course, the ultimate question is whether President Trump has committed or will commit impeachable offenses--"treason, bribery, or other high crimes and misdemeanors." (18) Again, much of the early Trump presidency has been consumed by scandal and controversy. With various scandals during the Trump presidency, talk of criminality has inevitably ensued. (19) But impeachment is not concerned with mere criminality. Its focus is abuse of the public trust, (20) though this may often intersect with criminality. Impeachment requires--indeed, is the ultimate exercise of--careful and thorough congressional oversight and investigation of the executive, beyond what prosecutors and other law enforcement officials may pursue. During the Trump presidency, then, congressional investigation and oversight of the executive may be more significant than it has been in at least a generation. Impeachment talk must therefore consist of more than simply whether a particular presidential act constitutes an impeachable offense. Once the House determines that an offense is at least impeachable, it must determine whether to impeach. (21) And even if it does so, the Senate is presented with yet another complicated problem: assuming that an impeachable offense is submitted, what must -or should--happen next?

Consider the following hypothetical example. It is the final day of the President's--any President's--impeachment trial in the United States Senate. The House Managers have introduced massive amounts of evidence over the course of two weeks. That evidence tends to show that the President engaged in the very conduct that was the subject of the articles of impeachment that the House approved. The President's lawyers, in his defense, have been frustrated, unable to seriously counter the House's proof of the alleged acts. In their closing statements, the President's lawyers feel that they are left with the following strategy: argue to the Senators that, despite proof that the President engaged in conduct that amounts to an impeachable offense, he should not be removed from office. The argument is a politically powerful one in light of several facts about the President's popularity and job performance...

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