Impeachment and Its Discontents.

• Author: Kalt, Brian C.

TABLE OF CONTENTS TABLE OF CONTENTS 781 I. INTRODUCTION 782 II. UNSUCCESSFUL IMPEACHMENTS 782 III. FUTILE IMPEACHMENTS 786 IV. CENSURE 790 V. CONCLUSION 791 I. INTRODUCTION

What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, "Believe in it? Heck, I've actually seen it done."

I am not a fan of failed or futile presidential impeachments; I do not "believe" in them. Nevertheless, I have seen them done three times now. All of this is, in other words, not the sort of purely theoretical construct in which law professors often traffic. As an actual phenomenon - a tangible political fact, not an abstract legal one - failed and futile impeachments need to be analyzed and not just dismissed out of hand.

This Article will do that: criticizing failed and futile presidential impeachments, but finding defensible principles at their core and suggesting that censure offers a better way to vindicate those principles. Part II will argue that a presidential impeachment resulting in an acquittal might serve some valid purposes. At best, however, these purposes are greatly diminished by a failed impeachment, and, at worst, they might be disserved entirely. Part III will consider what has driven the House of Representatives in recent decades to become so much more willing to pursue presidential impeachments that are unlikely to succeed. Part IV will conclude by suggesting that the House's impulses are better served by censure than by futile impeachment.

2. UNSUCCESSFUL IMPEACHMENTS

   To answer the question of what purpose unsuccessful impeachments serve, it helps to begin with a more general question: What purpose is any impeachment supposed to serve? This general question sat at the heart of the debate over the unusual timing of the second Trump impeachment. To those who believed that it was unconstitutional to try Trump after he had left office, the defining purpose of the impeachment process was removal of the offender from office. (1) The Constitution's core impeachment provision provides, after all, 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." (2)

   On the other side, those who believe that "late impeachment" (3) is constitutional freely concede that removal is the most important function of the impeachment process in general, but they maintain that removal is not its sole function. There is ample evidence - from text, structure, history, and practice - for the notion that the impeachment process has other purposes too. (4) First and foremost in Trump's case was disqualification from future office. (5) The Constitution specifies disqualification as the only possible consequence for conviction besides removal, (6) and it was important to the Framers. (7)

   Of course, regardless of whether you think impeachment is only about removal or also about disqualification, neither one of those consequences applies when the Senate acquits the defendant. But the impeachment process was designed with still other purposes in mind as well.

   One is deterrence. As John Jay wrote in The Federalist, "so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments." (8) Only three presidents have been impeached, but the possibility of impeachment has hung over every president's head. As Cass Sunstein put it, analogizing impeachment to the mythical Sword of Damocles, "The value of the sword is not that it falls, but rather, that it hangs." (9) And allowing late impeachment keeps that sword hanging until the very end of the president's term. (10)

   Every president has been restricted in his actions by the possibility of removal. Whatever bad things presidents have done over the centuries, you can surely imagine worse--outrageous things that some would have done had they been guaranteed a full four-year term with no possibility of being held immediately accountable for their conduct. (11)

   Through this deterrent effect, even an unsuccessful impeachment can shape norms of behavior. (12) But while Andrew Johnson was chastened by his impeachment ordeal, that was only because conviction was a very real possibility. (13) It was probably only by making concessions to the opposition about the proper role of the president that Johnson avoided conviction. (14)

   By contrast, Presidents Clinton and Trump had enough support in the Senate that it became apparent in each of their cases that they would be acquitted by a wide margin. And that is the problem. Knowing that conviction is off the table will dull, or even reverse, any positive norm-shaping. The backlash against the impending and obviously futile impeachment of President Clinton helped his Democratic Party perform unusually well in the 1998 midterms. (15) More recently, President Trump's first acquittal emboldened him, (16) and his second acquittal left him feeling defiantly unrepentant. (17) It is only natural for an acquittal to be taken as a victory, if not an outright vindication.

   So far, not so good. An acquittal does not serve the key purposes of removal, disqualification, or deterrence. But another main purpose of impeachment remains: investigating and publicizing the president's conduct. Impeachment trials provide a forum, not just a verdict.

   The investigative part of this equation, however, has faded. During Watergate, the House Judiciary Committee coordinated a massive probe, employing a large staff to conduct its own investigation alongside those of the Special Prosecutor's office and the Senate. (18) In the Clinton impeachment, the House basically outsourced its investigative functions to Independent Counsel Kenneth Starr. (19) Continuing the trend, the Trump impeachments featured notably thin processes for developing a record. (20) As Philip Bobbitt put it, comparing the present to the 1970s, "[w]e are more inclined to treat impeachment as a political struggle for public opinion, waged in the media, and less like the grand inquest envisioned by the Constitution's Framers." (21)

   This shift reflects the fact that regardless of how much investigation is conducted, impeachment trials can publicize a president's conduct in a way that...