Impeaching the President.

• Author: Sunstein, Cass R.

INTRODUCTION

The American Constitution allows the removal of the President for "Treason, Bribery, or other high Crimes and Misdemeanors."(1) Well over 200 years after ratification, the meaning of these terms is debated, even over the most fundamental questions. The continuing debate raises a number of important issues in constitutional theory--involving the role of "politics" in interpretation, the place of text and history, the relevance of changed circumstances, the place of post-ratification practice, and the relevance of contemporary moral and political changes to constitutional meaning.

This is, then, a valuable arena in which to test contending approaches to constitutional law. But the interpretive debate has practical importance too--perhaps growing practical importance. After a fifty year period in which no judges were impeached--from 1936 to 1986--three federal judges were impeached between 1986 and 1989.(2) The 1998 impeachment of President Clinton may signal more frequent resort to the impeachment mechanism, especially in a world in which recent events are highly salient, and in which political opponents like to play "tit for tat." At least it can be said that, in an era in which scandals involving public or private behavior are an omnipresent aspect of news coverage and partisan politics, the country may well start to resort to impeachment more frequently. Is this desirable? How, if at all, does this possibility bear on constitutional interpretation?

I offer two substantive claims here. The simplest is that, with respect to the President, the principal goal of the Impeachment Clause is to allow impeachment for a narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential powers. On this view, a criminal violation is neither a necessary nor a sufficient condition for impeaching the President. What is generally necessary is an egregious abuse of power that the President has by virtue of being President. Outside of this category of cases, impeachment is generally foreign to our traditions and is prohibited by the Constitution. Outside of this category of cases, the appropriate course of action for any crime is generally(3) not impeachment, but a prosecutorial judgment, after the President leaves office, whether indictment is desirable. This is not a claim that the President can never be impeached for decisions and acts that do not involve the abuse of distinctly presidential powers. The Nation has left that issue undecided, and it should continue to do so until it becomes necessary to decide it.

My second substantive claim is that in the current period, it is more, not less, important to insist on this particular understanding of the Impeachment Clause. There are grave systemic dangers in resorting to impeachment except in the most extreme cases. The prospect of impeachment can be highly destabilizing to government, and in an era in which the opposing party and the mass media are likely to be aligned in accusing political opponents of criminality or severe misconduct, there is a continuing risk that impeachment proceedings will become decreasingly exceptional. This risk is all the more serious in light of the central modern role of the American President both domestically and internationally. In the interest of national stability, the best course lies in legislative forbearance and self-restraint--a kind of "mutual arms control" agreement, to be entered into by both political parties, in the service of the Nation as a whole.

I also offer two claims about constitutional interpretation. The: first is that our tradition is, at least in part, a common law tradition,(4) and the Nation's practice between ratification and the present is no less important for interpretive purposes than the Nation's understanding in 1787 and 1788. Indeed, that long-standing practice may be the most important clue to the appropriate meaning of the phrase "other high Crimes and Misdemeanors." And with respect to the President, the Nation has shown a remarkable tradition of forbearance and restraint, by refusing to proceed in cases in which Presidents--including Presidents Reagan, Bush, Nixon,(5) Kennedy, Eisenhower, Roosevelt, and Lincoln--might have been said, by some, to have committed impeachable offenses.(6) With respect to the office of the President, there have been only three serious impeachment inquiries in American history.(7) This practice of caution is as important as anything else to my general argument.

A striking aspect of the debate over impeachment between 1997 and 1999 has been its insistently originalist character. Many participants, on all sides, have urged that the meaning of the Impeachment Clause depends on the understanding of the Nation in 1787. Part of my argument speaks in originalist terms, and originalism does support my general conclusion. But post-ratification practice speaks even more unambiguously, and it is that practice that deserves to bear most of the argument's weight. Political "precedents" are less articulate than judicial ones, but in this context, our political practice speaks very loudly indeed.

It should be clear that one of my principal targets is the famous 1970 statement by Gerald Ford, then a Representative from Michigan, that an impeachable offense "is whatever a majority of the House of Representatives considers [it] to be."(8) In a practical sense, of course, Ford was right--in the absence of extraordinary circumstance, no court is likely to review a decision to impeach. But in a constitutional sense, he was entirely wrong. The Constitution sharply circumscribes the power of the House of Representatives by limiting the category of legitimately impeachable offenses.

This Essay has three basic parts. Part I discusses the original understanding of Congress's impeachment power, with reference to the Constitution's text and the founding era. Part II explores historical practice. Part III briefly applies the basic analysis to the effort to impeach President Clinton; much more importantly, it deals with modern political culture and its relationship to the topic of impeachment.

1. 1788

   Some people believe that the meaning of the Constitution is settled by the original understanding,(9) and debates about impeachment have had a striking and unmistakable "originalist" dimension. I have suggested that post-ratification practice is highly relevant, but of course the original understanding matters too. Let us begin, then, by examining the original understanding of the impeachment power. What was the impeachment power soon after ratification in, for example, 1788?

   1. The Text

      The text of the Constitution is the place to begin. It says that a President may be removed for "Treason, Bribery, or other high Crimes and Misdemeanors."(10) How much progress can be made by looking at the text alone,(11) at least if we attempt to read it as it would have been read in 1788? The basic answer is that while the text certainly does not answer every question, it is highly suggestive. What it suggests is that to be impeachable, the President must have engaged in large-scale abuses of distinctly presidential powers.

      The opening reference to treason and bribery, together with the word "other," seems to indicate that high crimes and misdemeanors should be understood to be of the same general kind and magnitude as treason and bribery (as in the Latin canon of construction, ejusdem generis(12)). For a reader in 1788, the terms "treason" and "bribery" would be unmistakable references to misuse of office, probably through betraying the country, in one way or another.(13) Thus, it would be reasonable to think that "other high Crimes and Misdemeanors" must amount to a kind of egregious misuse of public office.(14) The Constitution does not say "Murder, Assault, and other High Crimes and Misdemeanors," nor does it say, "Blasphemy, Disorderly Conduct, and other High Crimes and Misdemeanors."(15) The opening references to treason and bribery seem to limit the kinds of offenses for which a president may be removed from office.

      Other provisions of the Constitution appear to support this judgment; they suggest that the choice of terms was no coincidence, that the words "treason" and "bribery" were carefully chosen, and that the term "high" was intended as a serious restriction on the legitimate grounds for impeachment. The Interstate Extradition Clause refers to persons "charged in any State With Treason, Felony, or other Crime,"(16) in striking contrast to the impeachment provision. Consider, also, the Speech and Debate Clause, which refers to congressional immunity from arrest "in all Cases, except Treason, Felony, and Breach of the Peace,"(17) and the Fifth Amendment's Grand Jury Clause, which guarantees a right to a grand jury when someone is "held to answer for a capital, or otherwise infamous crime."(18) The different constitutional references to diverse "crimes" suggests that the impeachment provision had a special purpose. Because the phrase "other high Crimes and Misdemeanors" is a dramatic contrast to other provisions in the text, it is reasonable to think that those terms are a reference to abuses that are, in both nature and magnitude, similar to treason and bribery.

      This reading does not entirely dispose of the interpretive problems. For one thing, the term "bribery" creates some ambiguity. Bribery could be the President's acceptance of a payment of money to act in a way that is inconsistent with the republic's needs or desires, or it could be a payment of money by the President himself, to convince people to vote for him. These would be abuses of power. But "bribery" could also be a payment by the President to a judge, to decide a case in favor of a childhood friend; or it could be a presidential payment of money to an athlete, to allow an opposing team to win some competition. In light of the wide range of possible "bribes," it would be...