The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the fifth and final installment of a series of posts on my new book, Contested Ground: How to Understand the Limits of Presidential Power. Today's subject is Congress's ultimate weapon against the President: impeachment and removal from office.
The most controversial issue is about whether the grounds for impeachment, commission of "high crimes and misdemeanors," is limited to criminal offenses. Pre-Framing history seems to support a broader reading that includes serious abuse of power. The Framers did not invent impeachment. It has a long history, going back four centuries before they wrote the Constitution. The first impeachments in England were late in the 1300s. The charges involved military failures, corruption, and wasting government money. It was in 1386 that the phrase "high crimes and misdemeanors" was first used. That phrase was used again in 1450. In that case, some of the charges against the defendant involved criminal offenses. There were other charges that the defendant procured offices for people who were unfit and squandered public funds. Impeachment had an on-again-off-again history as a tool for Parliament to get rid of unpopular royal officials. After falling out of use for a long period, impeachment became prominent again under the Stuart Kings, who ruled after Queen Elizabeth I's death. The charges against officials in that period included non-criminal conduct such as mismanagement, subverting the law, promoting tyrannical government, and giving bad foreign policy advice. One judge was impeached for browbeating witnesses and getting drunk.
The Framers may not have known all the details of British history, but they would have been well aware of the general practices. At the same time the Constitution was being written in Philadelphia, impeachment was again a subject of lively interest in Britain. The British Parliament was immersed in impeachment proceedings against Warren Hastings. He was charged with abusing his power in managing India on behalf of the British. Edmund Burke, the leading advocate for impeachment, made it clear that no criminal charges were involved.
Impeachment was familiar to Americans, not only because they had read about its use in England, but also because they had used it themselves. A century before Independence, Maryland impeached a colonial officer for bungling a military expedition, sabotaging the colony's policy toward Indian tribes, and murdering hostages. In Pennsylvania, a colonial official was impeached for legislative contempt. Closer to Independence, a judge was impeached after agreeing to receive a salary from the King rather than the colonial government, which the Massachusetts legislature viewed as a case of undue royal influence.
At the Constitutional Convention, there was initial disagreement about whether impeachment was necessary or whether the desire for reelection was a sufficient restraint on misbehaving Presidents. Once that was resolved, there was protracted discussion of who should judge impeachments—the Senate, the Supreme Court, or someone else? And finally, the convention delegates had a hard time finding the right description of the grounds for impeachment. They began with "mal-practice or neglect of duty," changed that to "treason, bribery, or corruption," then hit on "treason, bribery, or high crimes and misdemeanors against the state." "Against the state" got changed to "against the United States" before being dropped entirely, leaving us with the final constitutional language of "high crimes and misdemeanors."
Madison's terse notes have been plumbed for clues for what the delegates had in mind. He and some other delegates were clearly concerned about presidential abuse of power going beyond criminal conduct. Among the grounds for impeachment mentioned during the debates were corruption, loss of capacity, bribery, treachery, negligence, and "perfidy." Pre-election misconduct was also discussed, including the risk that a President might gain office by corrupting the members of the Electoral College.
The debates at the convention, along with a few mentions in the Federalist papers, are suggestive but don't seem dispositive of what "high crimes and misdemeanors" was supposed to mean. At least on my reading, however, the term had not been historically limited to violations of criminal law.
What about later practice? All of the successful impeachments, and nearly all of the rest, involved federal judges. Since federal judges have life tenure, impeachment is the only way to remove them. Corruption, a criminal offense, has been the primary justification. But other grounds of impeachment have also made appearances. One judge was removed for treason, having gone over to the Confederacy during the Civil War. Others were removed for incapacity (such as being mentally incapable or drunk on the bench), committing crimes while serving as judges (such as tax evasion), or abusive behavior during trials. The cases involving abusive behavior and incapacity suggest that noncriminal behavior can qualify as high crimes or misdemeanors.
On balance, the argument for the broader reading of the class seems more persuasive to me, both on historical and functional grounds. Limiting impeachment to criminal offenses would immerse the process in technical legal arguments, such as the complexities of federal statutes governing corruption, which Congress is ill-suited to addressing. Moreover, there is conduct that should clearly disqualify a person from holding office but that may not be a criminal offense. For example, a judge might engage in abusive and disruptive conduct during trials or sexual harassment of court employees. A President might declare use official powers to silence political opponents or engage in deliberate, but noncriminal, constitutional violations.
The best argument for a narrower reading is that Congress might abuse its impeachment powers if those powers are defined broadly. That's certainly a concern. I'm skeptical that adopting a narrow reading would prevent such abuses, given the complexity of the federal criminal code and the potential for reading provisions broadly. The more effective check is the requirement of a two-thirds vote in the Senate, which means that removal from office would almost inevitably require bipartisan support.
Impeachment is the "nuclear option" of checks and balances. Congress's control over appropriations and its power to investigate the executive branch are the normal tools for checking executive actions. Even though no president has ever been removed from office by impeachment, however, the mere existence of the nuclear option may have a deterrent effect.
That brings us to the end of this series of posts. In closing, I would like to again thank the editors for generously giving me the opportunity to post on this forum. I also appreciate the attention of readers who I hope have gotten some sense of the way I approach these issues in Contested Ground.