Impeachment: A Mini-chapter on What It Is, What It Isn’t, and What Nobody Knows

“Scandalous!”

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Edwin Stanton in a cartoon by Thomas Nast

Usually, when people are fired from their jobs, they grouse, maybe kick a chair, and then pack up their personal belongings and go home. That’s not what happened on February 21, 1868, when President Andrew Johnson fired his Secretary of War, Edwin Stanton. Instead, Stanton barricaded himself in his office and refused to leave. Unfortunately for the president, it was against the law for him to dismiss a Cabinet member without getting permission from the Senate. Three days later, the House of Representatives adopted a resolution of impeachment against the president—for the first time in US history. (Both Chapter 14 of the second edition of Fault Lines in the Constitution and a blog post called “‘You’re Fired!’ ‘Oh, No I’m Not!’” explain why presidents now have the right to dismiss members of their Cabinet without congressional approval.)

Johnson’s crime wasn’t the only reason he was impeached. Republicans, who were in the majority in both houses of Congress, were outraged that he wasn’t protecting the rights of previously enslaved people, who had been liberated by the Thirteenth Amendment in 1865. For instance, Johnson vetoed the Freedman’s Bureau Bill, which would have provided food, land, medical care, and education to former slaves. So, political differences between Congress and the president also played a role in the decision to impeach him. Relations were so rancorous that one of the charges accused him of making speeches in “a loud voice [with] intemperate, inflammatory, and scandalous harangues.”

On March 2 and 3, 1868, the House of Representatives approved eleven articles of impeachment against President Andrew Johnson.

Meanwhile, Back in 1787

Even before the Framers had decided how many presidents—or, whatever their executive would be called—the country should have or how long he would serve or what powers he should have, they debated how to get rid of one if he misbehaved. They trusted George Washington, who they presumed would be the first president, but, as Ben Franklin muttered, “Nobody knows what sort may come afterward.” They especially feared a “magistrate” who might become a tyrant, like King George III, or one who might be influenced by foreign countries.

One of the ways foreigners could control an American president would be through bribes or gifts. To prevent that, the Framers decided to bar all federal officials from receiving any kind of international payments.

“No person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

—Article I, Section 9

What else might lead to the executive having to leave office before his term was up? In order to pay attention to the big questions, like how to choose the chief, the Framers shifted discussion of how to remove him to the Committee on Postponed Parts. At an early meeting, Gouverneur Morris argued against including an impeachment clause in the Constitution altogether, since a president who engaged in “malpractice or neglect of duty” would be voted out at the next scheduled election. He changed his mind, though, when he realized that a president who engaged in “bribery, treachery, corrupting his electors, and incapacity” should be booted out of office as soon as possible. Thereafter, the committee’s debates focused on what kind of behavior would trigger an impeachment. James Madison listed “incapacity, negligence or perfidy” as impeachable offenses. Alexander Hamilton later cited “abuse or violation of some public trust.”

They ultimately settled on the following reasons:

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.

—Article II, Section 4

As for the process, the Framers decided that the House of Representatives should have the right to authorize an inquiry into the president’s behavior and, if deemed necessary, to lay out the charges in articles of impeachment. Led by the Chief Justice of the Supreme Court, the Senate should hold a trial of the president (or other officer). A vote of two-thirds of the senators would result in conviction and removal from office.

So What’s the Big Problem?

Over our 235-year history, four presidents have been subjected to serious threats of impeachment: Andrew Johnson, Richard Nixon, Bill Clinton, and, currently, Donald Trump. Two of them, Johnson and Clinton, were impeached by the House but escaped conviction in the Senate because of the two-thirds rule. Nixon resigned before the House impeached him when he realized that he faced almost certain conviction in the Senate. We don’t know how the Trump story will play out.

But we do know enough to see some of the problems posed by the Impeachment Clause. The main one is that no one knows or agrees on the meaning of “high crimes or misdemeanors.” As a result, lawyers, rather than ordinary citizens, dominate the conversation. It’s clear that not all crimes—such as drunken driving—count. And, there’s generally agreement that the president doesn’t even have to commit a crime to be liable for impeachment. For instance, reckless indifference to safeguarding the fundamental interests of the country, could be impeachable—assuming the lawyers and the senators concur on what that means.

Furthermore, it takes a long time for the House first to investigate the president’s conduct and then to determine whether it reached the level of “high crimes and misdemeanors.” Then, it takes more time for the Senate to hold a trial.

In addition, why is a vote of two-thirds of the Senate necessary for conviction? If a majority of that body—and, probably, a majority of the people they represent—believes that the president is guilty as charged, perhaps he should stop serving as president before the end of the four-year term. After all, most schools or businesses would put an employee suspected of committing a high crime on leave more quickly.

There Are Other Ways

States

Each state can impeach officials, including the governor. The process varies, depending on the state’s constitution.

Other Countries

Parliamentary systems, such as that in Great Britain, allow the legislature to hold a vote of no confidence in the head of government. If most members—in Britain, this means a majority in the House of Commons—declares that it does not have confidence in the leader, then the government must either resign or call for a new election.

The United States

It would be necessary to amend the Constitution to clarify the definition of impeachable offenses and to revise the process as laid out in the current impeachment clause. Allowing for a vote of no confidence would also require extensive revisions.

The Story Continues

FaultLinesImpeachment2In the spring of 1868, the Senate was composed of fifty-four members from twenty-seven states. (There were actually thirty-seven states at the time but ten of them were former Confederate states whose senators had not yet been readmitted to Congress.) To convict Johnson of any of the eleven charges against him, two-thirds, or, thirty-six, votes were necessary. In each case, the vote was thirty-five guilty votes and nineteen not guilty.

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Johnson remained in office until March 4, 1869. Republicans’ efforts to reinstate former enslaved people to full citizenship with all its rights and benefits were largely undermined. With a few exceptions, this period, called Reconstruction, did not succeed in reconstructing the country after the war.

 

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