The Federal Impeachment Process: A Constitutional and Historical Analysis.

• Author: Abramowicz, Michael

Michael Gerhardt's The Federal Impeachment Process combines the virtues of the two twentieth-century classics on the impeachment power. Like Raoul Berger's scholarly tome,(1) Gerhardt's book delves into the full range of issues implicated by the Impeachment Clauses,(2) tracing the power from its genesis in the Constitutional Convention to contemporary reform proposals. Like Charles Black's Handbook,(3) the book is straightforward, providing Congress an accessible reference source for impeachment administration. Indeed, Gerhardt has mastered the "hundred-ton gun"(4) that is the impeachment power, and he has readied it for academics and policymakers alike.

But Gerhardt does not explore the possibility that Congress might use this weapon against anyone but the occasional corrupt President, cabinet secretary, or judge. As the first major work to consider the 1980s impeachment trials of three federal judges,(5) Gerhardt's book gives much of its attention to judicial, rather than presidential, impeachment. To date, judicial impeachment has been a minor congressional power, resulting in the conviction of only seven lower court judges (p. 185 n.3). Its importance for American democracy lies not in its history but in its potential. Although the recent spat over an opinion by Judge Harold J. Baer, Jr.,(6) resulted in a self-reversal,(7) some members of Congress have advocated impeaching Judge Baer and others who have written opinions that they view as wrong.(8) Because Gerhardt fails to address directly the legitimacy of impeaching judges for rendering decisions with which Congress disagrees, he does not consider whether such removals would unconstitutionally encroach on judicial independence or would provide a constitutionally acceptable check on judicial activism.

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Rather than organizing the book as a seriatim inquiry into the various aspects of impeachment, Gerhardt has divided it into four multichapter parts that discuss the ratification of the Constitution (pp. 3-21), the practice of impeachment in Congress (pp. 23-71), constitutional issues in impeachment (pp. 73-146), and proposed reforms to the impeachment process (pp. 147-78). The result is a rich, lively, and even suspenseful study in which Gerhardt's historical assessments return to inform his constitutional and policy analysis. In the end, Gerhardt echoes Winston Churchill in saying "that impeachment may be the worst imaginable system for disciplining and removing impeachable officials, except for all of the others" (p. 178).(9)

The statement's ambivalence reveals the thrust of Gerhardt's argument and the tension within it. Gerhardt is confident that the Framers' decision to rest the impeachment power in Congress rather than the Supreme Court was right. Because of Congress's political accountability, as well as the Constitution's procedural and substantive limits on impeachment,(10) Gerhardt sees impeachment as a well-designed process that works -- more or less. Despite some flaws in congressional impeachment practice (pp. 27-32, 39-53), Gerhardt concludes "that the House has rarely, if ever, and the Senate has never, successfully committed a serious or extreme abuse of its impeachment authority" (p. 55). Perhaps inspired by this record, Gerhardt devotes nearly half the book to analysis of various constitutional questions that a Congress contemplating impeachment should face.

Gerhardt repeatedly emphasizes that the impeachment power is unique, distinct both from ordinary legislative activities and from typical judicial processes. This uniqueness leaves Gerhardt wary of removals that do not strictly conform to the Constitution. For example, he agrees with Congress's assessment that its own members are not impeachable since they are not "civil Officers" (pp. 75-77).(11) Members of Congress, he argues, may be removed only through expulsion,(12) and judges may be removed only through impeachment and conviction. They may not be removed by other legislative means (pp. 83-86) or by judicial self-enforcement (pp. 95-97).

The uniqueness of impeachment also causes Gerhardt to draw a sharp line between impeachment and other sanctions not entailing removal. His view of criminal and impeachment processes as independent compels his conclusion that judges may be prosecuted before impeachment, since criminal conviction does not technically remove a judge from the bench (pp. 87-91). Similarly, Gerhardt argues that officials who...