Impeachment in a System of Checks and Balances.

• Author: Whittington, Keith E.

TABLE OF CONTENTS ABSTRACT 835 TABLE OF CONTENTS 836 I. INTRODUCTION 837 II. WHAT IS AN IMPEACHABLE OFFENSE? 840 III. IS THIS KIND OF BEHAVIOR IMPEACHABLE? 848 IV. DOES THIS INSTANCE OF MISCONDUCT JUSTIFY IMPEACHMENT? 856 V. CONCLUSION 860 I. INTRODUCTION

Few principles were so central to the founding era thinking about constitutional design as that power ought to be made to check power. (1) The records of the Philadelphia Convention are replete with discussions of how adequate checks on power are to be established. Edmund Randolph thought the Confederation period had demonstrated the "turbulence and follies of democracy" and "that some check therefore was to be sought for against this tendency of our Governments," and hoped the Senate would do the trick. (2) Elbridge Gerry thought the judiciary ought to "have a sufficient check against encroachments on their own department," and thought its authority of deciding on the constitutionality of the laws would provide it. (3) Benjamin Franklin worried that an absolute presidential veto over laws would be "a mischievous sort of check," (4) but James Wilson worried that if the legislative could override a presidential veto too easily, the "Executive check" might prove inadequate, in "tempestuous moments," to allow the executive "to defend itself." (5) Hugh Williamson thought a legislature divided into two chambers could "serve as a mutual check," (6) and James Madison hoped to provide Congress with a "check" against the "mischiefs" of the states. (7) Checks had to be put in place everywhere so that no actor or interest could become too powerful or abusive.

The ultimate and most powerful of these checks, the impeachment power, was entrusted to the Congress. With this power, the legislative branch was vested with the sole authority to remove, when necessary, members of the other branches of the federal government. Members of the legislature could themselves only be removed by the chamber as a whole - through expulsion - or by their constituents as regular intervals--through election. The other branches of government were designed to be powerful and independent, but the legislature held the trump card. Though Madison was among those who worried about "a powerful tendency in the Legislature to absorb all power into its vortex," there was no other body that could be entrusted to exercise a power to impeach and remove misbehaving members of the judicial and executive branches. (8)

The impeachment power might be a powerful congressional weapon, but it seemed more like a paper tiger during the presidency of Donald Trump. In late 2019, President Trump became only the third president in American history to be formally impeached. (9) Remarkably, in a single term of office he was impeached not once, but twice. Trump's impeachment troubles will surely be the leading topic when recording his presidential legacy.

It is hard, however, to consider either Trump impeachment particularly successful. If the goal was to remove Trump from the White House, then impeachment never truly stood a chance, as the President never faced any serious risk of losing the Senate vote and being convicted. If the goal was to chasten the President and induce him to change his behavior while he occupied the Oval Office, the first impeachment seemed to do the opposite. Republican Senator Susan Collins famously explained her own vote for acquittal by saying, "I believe that the president has learned from his case. The president has been impeached. That's a pretty big lesson." (10) Instead, Trump seems to have learned a different lesson than Collins would have hoped. He learned that he could count on his co-partisans to stick by his side and defeat any effort to remove him from office. Rather than adopting an apologetic attitude after his first impeachment ordeal, he was defiant, with the White House declaring the result to be a "full vindication and exoneration." (11) As Republicans rallied around their embattled President, Democratic leadership made that easier by leaning into the partisanship. Rather than trying to build a broad coalition that might have emphasized that the concerns about the President were not merely the sour grapes of the opposition party, the Democrats chose to sideline the many conservative critics of Trump in preparing and moving forward with their impeachment effort. (12) Rather than authorizing a single committee to open a formal impeachment inquiry and construct a coherent public narrative to justify impeaching a sitting president, the House stumbled through an ad hoc process with no clear direction and unnecessarily opaque authority. (13)

There are important broader questions raised particularly by the first Trump impeachment that have significance for how we think about the impeachment power moving forward. The first Trump impeachment generated significant debate over how to think about the scope of impeachable offenses and the responsibilities of Congress when confronted by the kind of presidential behavior displayed by Donald Trump.

As the House contemplates making use of the impeachment power and the Senate contemplates whether to convict an officer in an impeachment trial, there are some basic questions that must be asked in any impeachment episode. What is an impeachable offense? Is this kind of behavior impeachable? Does this instance of misconduct justify impeachment? In this Article, I examine each question. The goal is not to relitigate the first Trump impeachment but to clarify how future members of Congress should think about these questions when the impeachment issue is once again raised.

2. WHAT IS AN IMPEACHABLE OFFENSE?

   If the House wants to determine whether it should use the impeachment power, it first must know when the impeachment power can be used. Setting aside the jurisdictional question of who can be subjected to a House impeachment and Senate trial, (14) the Constitution lays down a substantive standard for what constitutes an impeachable offense. Article II specifies that officers can be impeached and removed for "Treason, Bribery, or other high Crimes and Misdemeanors." (15) The offenses of treason and bribery are relatively straightforward to define but have been of limited significance for how the impeachment power has actually been used over time. In practice, the most important set of impeachable offenses has also been the least clear--those that fall within the scope of "high Crimes and Misdemeanors." The history and purpose of the impeachment power demonstrate that the scope of impeachable offenses is broad and flexible in allowing Congress to reach the unpredictable but potentially serious threats to the constitutional order that can arise from the misbehavior of federal officers.

   The impeachment clause contained in the U.S. Constitution creates a broad standard rather than a precise rule. As a consequence, there has been persistent disagreement about what exactly the scope of the impeachment power might be. Particularly, the constitutional specification that officers can be impeached and removed for high crimes and misdemeanors has encouraged ongoing debate about what falls within the range of impeachable offenses. (16) Despite the existence of that debate, the mainstream political and scholarly view has been that the impeachment power is broad and that impeachable offenses include abuses of power. (17)

   Given the nature of the charges against President Trump, it is not surprising that his defenders tried to narrow the scope of impeachable offenses to exclude political misdeeds and include only ordinary criminal offenses. The first step of setting up a defense to an impeachment is to question whether the acts being charged are even impeachable offenses within the scope of the House's impeachment power. Given the language of the constitutional provision, reducing "high Crimes" to the most familiar kind of "crime" - ordinary indictable criminal offenses - is a natural move to make. It is a move that the House should, and traditionally has, rejected. (18)

   It is tempting, especially for those charged with an impeachable offense, to attempt to analogize high crimes to ordinary crimes. The Constitution lists two familiar sorts of criminal acts as impeachable, (19) and the language of crimes, misdemeanors, trials, and convictions that permeates the impeachment process is resonant of the ordinary criminal justice system. Ordinary criminal offenses have the advantage of being well known, and thus provide both clear notice to officers that they should avoid committing such offenses and reduce the need for legislators to have to grapple with a broader but less conventional category of impeachable offenses. Legislators who prefer to outsource impeachment investigations to special counsels benefit from a list of impeachable offenses that is coterminous with the criminal code.

   Even well before the House voted on articles of impeachment, Trump's defenders had been actively arguing that he could not be impeached for anything other than the commission of ordinary criminal offenses. Alan Dershowitz has been the most prominent advocate of this view of late, though it is not completely without precedent. (20) As impeachment threats swirled around the Trump presidency, Dershowitz argued that Congress should understand the impeachment power as limited to statutory crimes comparable to the named offenses of treason and bribery. (21) As the House impeachment inquiry advanced, Dershowitz dismissed the House's efforts: "You can't just make it up. To have a crime, you have to find something in the statute book that existed before the actions took place, and that was clear and unequivocal. It's just not there." (22) Similarly, Trump's former attorney general Matthew Whittaker took to the airwaves to ask, "What evidence of a crime do you have? . . . Abuse of power is not a crime." (23) Former Independent Counsel Kenneth Starr explained in interviews, "That is...