The Volokh Conspiracy

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Impeachments as a Political Remedy

Deciding When to Impeach Requires Political Judgment, Not Legal Skill


Over at Lawfare, I have published the latest of a series of posts that I have written over the past several months on the law and politics of presidential impeachments. This one focuses on impeachment and removal as a remedy for a certain kind of political problem, and not just as the mechanical consequence of a government official having committed some bad acts. If you can take down Al Capone for tax evasion, can you take down a president for campaign finance violations? Probably not.

Here's the opening:

There is a tendency to think of impeachable offenses as like landmines. If the president accidentally or purposefully steps on one, then it explodes and he must suffer the consequences. Constitutional lawyers might find this line of thinking particularly attractive because it would allow them to get to work on identifying a finite set of actions as high crimes and misdemeanors and to set Congress about the business of determining whether the president has actually committed such an offenses. Or, if Congress so prefers, to outsource that investigative work to a special counsel who could effectively make the impeachment process itself a mere formality.

This is the wrong way to think about impeachments. Impeachment is a powerful political tool for addressing a class of important and distinctly political problems, but it is not always the right tool for the job. Politics is inescapably at the heart of any impeachment, particularly a presidential impeachment. . . .

Read the whole thing at