Impeachment and accountability: the case of the first lady.

• Author: Broyde, Michael J.

The spouse of the President of the United States long has played an important role in the nation. The First Spouse's increasingly public involvement in policy matters, though, requires greater definition of the First Spouse's official status. Given the complex statutory framework regulating government operations, important legal questions may turn on whether the First Spouse is better characterized as an officer or as a mere unofficial adviser. Judges in three recent cases concluded that because of the First Spouse's significant duties, the spouse should be deemed a government official. The judicial and scholarly treatments of the First Spouse's position, however, so far have given little consideration to a key aspect of official status. If First Spouses are officers, how may they be removed from office? Method of removal plays an important role in defining an office. While two of the traditional methods of removal--resignation and discharge--seem available, this article discusses whether the First Spouse is subject to the third method of removal, impeachment. The authors examine the formal and functional arguments as to the impeachability of the First Spouse. Impeachment talk is in the air. Even before Monica Lewinsky became a household name, discussion about impeaching President Clinton abounded, from the pages of the Wall Street Journal(1) to websites(2) to the halls of Congress.(3) Vice President Gore also has been the target of impeachment interest.(4) Attorney General Janet Reno's rejection of an independent counsel to investigate White House fundraising led to calls for her impeachment.(5) Nor are impeachment targets solely in the Executive Branch. Critics of the federal judiciary have suggested impeaching certain "activist" judges.(6) Given the pervasive partisan atmosphere in Washington and the widespread discussion of impeachment, one omission appears surprising. One of the most popular target of the Clinton Administration's critics has remained generally immune from impeachment discussions. Not even Representative Bob Barr, the earliest congressional supporter of impeachment efforts, has sought to impeach First Lady Hillary Rodham Clinton. While other slogans have moved from bumper stickers(7) to policy proposals, so far it is only Clinton's husband (not Clinton's wife) who has inspired serious impeachment discussion. Given the virulence of the criticism directed at Hillary Rodham Clinton(8) (along with suggestions of her possible indictment(9)), the absence of impeachment proposals likely does not reflect political restraint or lack of perceived grievance. Rather, one surmises that the limiting factor has been the assumed lack of constitutional authority. The point of this essay is to investigate the underpinnings of that assumption. As we will explain, while it might be obvious that the impeachment of Hillary Rodham Clinton would be substantively unjustified or politically unwise, in light of recent court decisions it is less obvious that impeachment would be legally impossible.

The Constitution provides that "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."(10) In certain respects, the First Spouse(11) clearly has some characteristics of an "officer." As spouse of the head of state, the First Spouse helps represent the nation in ceremonial and symbolic capacities. A First Spouse may also assist the Chief Executive in accomplishing policy initiatives. By statute, First Spouses have a staff and budget to enable them to fulfill their tasks.(12) Indeed, Hillary Rodham Clinton has more senior aides than Vice President Al Gore.(13) The First Spouse's official role recently received judicial recognition. In Association of American Physicians and Surgeons v. Clinton,(14) the applicability of the Federal Advisory Committee Act (FACA)(15) turned on whether Hillary Rodham Clinton was a government officer. Because of FACA's provisions, it mattered whether Hillary Rodham Clinton was an official or merely a (very good) Friend of Bill. The Court of Appeals for the District of Columbia Circuit resolved this question by holding that the First Spouse should be deemed a government officer. In the recent controversy concerning the assertion of attorney-client privilege for communications between Hillary Rodham Clinton and the White House Counsel, a district court agreed that the First Spouse was a "de facto officer or employee of the White House."(16) Concurring with this recognition of the First Spouse's official status, the district court overseeing the grand jury's investigations into the Monica Lewinsky matter held that executive privilege extended to conversations including Hillary Rodham Clinton.(17)

If the First Spouse does occupy some kind of office, how does this position fit within our republican framework of government? The First Spouse attains office by means that are slightly unusual--by (usually pre-election) presidential designation(18) not subject to Senate confirmation.(19) But what about removal from office? The manner of removal plays an important role in defining an official's status in the government.(20) Presumably, as with other executive officials, resignation or discharge would be possible. The First Spouse could quit, by ceasing voluntarily from performing any ceremonial or administrative functions. In the alternative, the President could effectively relieve the First Spouse of all authority, indeed even revoke the accoutrements of office and banish the First Spouse from the White House and all official occasions. In short, the President could "fire" the First Spouse,(21) as leaders in other countries have done.(22) But what if the First Spouse refused to resign, and the President chose not to dismiss the First Spouse? Is the third option, removal by impeachment, available?

In constitutional terms, whatever formal or informal duties the First Spouse undertakes, does the First Spouse constitute a "civil Officer" for Impeachment Clause purposes? Commentators have suggested that this term should receive a broad interpretation,(23) but the question is how broad; as usual, the text itself provides few answers. We will suggest two possible ways of approaching this question. One method notes the formal characteristics of a constitutional "officer" and inquires whether the First Spouse fits the bill. Another, more functionalist, approach seeks to understand the purposes underlying the availability of impeachment of government officers and to inquire whether, given the First Spouse's duties, the availability of impeachment would serve those purposes.(24) In setting the background for this exploration, we turn first to an outline of impeachment and its history, with special attention to the impeachment of subordinate executive officials.

1. IMPEACHMENT

   Rooted in old English precedents, impeachment under the Constitution requires that the House of Representatives indict and then prosecute an accused official, and that the Senate sit as judge and jury to decide guilt or innocence. As employed in seventeenth-century England, the impeachment procedure brought to justice those who, because of their power or station, could not be reached by ordinary judicial mechanism; it was in this capacity that impeachment came to be used as one of the means of removing judges and royal officials from their posts. In this form, it was incorporated into the Constitution by the Founders. Because the removal of a high official from a post has historically been an act of some political moment, surrounded by controversy, it requires the attention of both the House and the Senate in order to legitimate the resulting political upheaval.

   1. HISTORICAL PRACTICE

      In English practice, impeachment constituted a form of legislative trial not limited to officeholders. The House of Commons could impeach and the House of Lords try anyone, whether private citizen or government official; only members of the royal family were exempt.(25) Criminal penalties, up to and including death, could attach to the conviction.(26) After independence, the new American states transformed the British practice, generally confining impeachment to officials and limiting punishment to loss of office.(27) The framers relied on these state precedents in drafting the impeachment provisions of the Federal Constitution.(28) In modifying the British practice, the state and federal constitutions remade impeachment in a more republican image, no longer representing an exercise of unbridled legislative power, but instead realizing evolving notions of separation of powers.(29)

      The commitment to republican principles led to a narrowing of the domain of impeachment, but also to preserving the practice as an important constitutional element. In its British form, impeachment had served as a means for the legislature to protect itself against perceived royalist threats.(30) The American states retained impeachment as a check against the potential corruption of public officials. In republics, as well as in monarchies, officers could abuse the public trust. The framers of state constitutions had doubts about relying solely on electoral protections, particularly because such democratic checks did not provide an adequate safeguard for curbing abuses between elections.(31) While state constitutions limited impeachments to government officials, they generally allowed impeachment of any official.(32) This model of impeachment conformed to republican notions of limited and separated powers: Governors could appoint officials, and legislatures could remove them. The division of authority protected against tyranny.(33) In addition to providing a means of dislodging particular, corrupt officials, impeachment also had a larger symbolic value, representing a public commitment to honest government.(34) After debating...