The Federal Impeachment Process: A Constitutional and Historical Analysis.

AuthorSchauer, Frederick

In an age in which special prosecutors proliferate and in which journalists stumble over each other in their competition to see who can bring down the largest number of politicians, it would be plausible to ask whether the impeachment and removal powers set out in Article I of the Constitution retain any contemporary relevance. President Clinton, many of us suspect, worries most about what might be reported in the New York Times and the Washington Post, and then about what Special Prosecutor Kenneth Starr might do, and then about public criticism or condemnation from prominent political figures, with the possibility of impeachment in the House of Representatives and a trial and conviction in the Senate being far down the list, perhaps little more than an afterthought. In the language of those inside the Beltway, it is doubtful that impeachment is even on the President's radar screen.

Yet despite its seeming decrease in relevance in post-(Richard) Nixon politics, impeachment is anything but a dead letter. Federal judges named Aguilar, Claiborne, Collins, Hastings, and (Walter) Nixon have all recently been through or threatened with impeachment proceedings, and as impeachment declines as the political weapon it was in the early days of the republic, it has appeared to emerge anew in its less political role as one of the most visible means of disciplining members of the federal judiciary.

Against this background, and against the background of increasing concern over whether members of the House and Senate have the inclination to devote the time and energy that the process seems to demand, Michael Gerhardt has written an important and definitive book setting forth the constitutional and procedural issues surrounding the impeachment process. Unlike earlier works on the topic, most notably Raoul Berger's Impeachment: The Constitutional Problems,(3) Gerhardt's impressive work is not largely devoted to an historical analysis, nor to recovering the intentions of those who drafted and ratified the impeachment provisions in the Constitution. Chapters 1 and 2 do a competent job with the history, and the impeachment proceedings of the nineteenth and early twentieth centuries are described at various points throughout the book, but the heart of the book is an analysis of the constitutional dimensions and procedural issues surrounding the impeachment proceedings that have taken place subsequent to the impeachment processes directed against Richard Nixon. Much of Gerhardt's analysis, therefore, emanates out of the proceedings culminating in the Supreme Court's decision in Walter Nixon v. United States,(4) and focuses on the vital set of issues relating to the procedures that Congress does and ought to use in conducting impeachment proceedings, the constitutional questions surrounding these procedures and the various ways in which Congress has sought to truncate them and thus to make them more manageable, and the extent to which any of these procedural (or substantive) issues are or...

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