Once is Happenstance: Precedent and Impeachable Offenses

Goldfinger said:"Once is happenstance. Twice is coincidence. The third time it's enemy action." Unlike Auric's rather sensible maxim, which tries to draw the correct lesson from experience, without assuming either too much or too little, Peter Schuck's op ed in today's New York Times falls into a kind of error that my fellow lawyers often do: the assumption that because an act has a precedent, it is therefore presumptively proper:

By constitutional design, impeachment for “treason, bribery, or other high crimes and misdemeanors” is a political accusation and initiates a political remedy, not a legal one. It is pretty much up to Congress to define and apply “high crimes and misdemeanors,” and no court would second-guess it. The next Congress could find that the president had violated his oath to “faithfully execute” the laws by refusing to enforce important provisions of the Affordable Care Act, No Child Left Behind and, now, the Immigration and Nationality Act.

The president surely has some power to withhold prosecution, but granting legal status and work permits to millions of people most likely exceeds his discretion. No judge can decide the precise scope of his discretion because no one, including Congress, has legal standing to challenge his order in court.


Of course, many lawyers at the Justice Department and elsewhere disagree, noting that prosecutorial discretion is pervasive, that there isn’t enough money to prosecute all violators, that the president will continue to prosecute criminals and illegal border crossers, and that earlier presidents have done the same thing. These are serious arguments.

Why, yes, they are. Unlike the claim that, in the infamous words of Gerald Ford, that "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." In Federalist No. 65, Alexander Hamilton describes the Framers' idea of an impeachable offense:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Now, if you read this passage and come away thinking that the President merely serves at the pleasure of Congress--yer doin' it wrong.

Although it's an example of special pleading, and therefore deserves to be taken with some skepticism, the 1998 memorandum submitted on behalf of President Clinton on the Standards for Impeachment does a nice job rounding up the original understanding of impeachment, consistent with Federalist No 65:

The English precedents illustrate that impeachment was understood to apply only to fundamental offenses against the system of government. In English practice, the term "high crimes and misdemeanors" had been applied to offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state.10 The English cases included misappropriation of public funds, interfering in elections, accepting bribes, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."

The notion that "injury to the state" was the distinctive mark of the impeachable offense was also shared by the Staff of the Impeachment Inquiry when it researched the issue in connection with the investigation of President Nixon in 1974. In early English impeachments, the Staff concluded, "the thrust of the charge was damage to the state. . . . Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of government."

The constitutional and ratification debates confirm that impeachment was limited to only the gravest political wrongs. The Framers plainly intended the impeachment standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate." The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt language, impeachment was thought necessary to remedy "great and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttempts to subvert the Constitution."

That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men." No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him -- and the Framers were fully aware of this.

The specific harms the Framers sought to redress by impeachment are far more serious than those presented here. During the ratification debates, a number of the Framers addressed the Constitution's impeachment provisions. The following is a list of wrongs they believed the impeachment power was intended to address:

*receipt of emoluments from a foreign power in violation of Article I, section 9;
*using the pardon power to pardon the President's own crimes or crimes he advised;
*summoning the representatives of only a few states to ratify a treaty;
*concealing information from or giving false information to the Senate so as to cause it to take measures they otherwise would not have taken injurious to the country;
*general failure to perform the duties of the Executive.
The history on which they relied, the arguments they made in Convention, the specific ills they regarded as redressable -- all these establish that the Framers believed that impeachment must be reserved for only the most serious forms of wrongdoing. They believed, in short, that impeachment "reached offenses against the government, and especially abuses of constitutional duties."21 Fidelity to that understanding requires the Committee to formulate an appropriately high standard to guide its decision whether to launch an inquiry with such potentially grave national consequences.

Professor Schuck continues:

in 1868 President Andrew Johnson was impeached by a deeply partisan, Radical Republican-dominated House. Johnson — a conservative Democrat who rose from the vice presidency when Abraham Lincoln, a Republican, was assassinated — was impeached mainly for firing a cabinet member (which he almost certainly had the legal right to do), but also for obstructing policies that Congress enacted. (Impeachment proceedings against Richard M. Nixon and Bill Clinton involved criminal conduct more egregious than Mr. Obama’s policy unilateralism.)

OK, first of all, the impeachment of Andrew Johnson is hardly looked on as a high point in the functioning of our Nation. Moreover, to blithely equate the impeachment of Bill Clinton for "providing perjurious, false and misleading testimony to the grand jury regarding the Paula Jones case and his relationship with Monica Lewinsky" and the investigation of Nixon's abuse of office to spy on his political opponents hardly (he resigned rather than have an impeachment vote go forward) is absurd. By the Federalist and Framer's definition of an impeachable offense, Clinton did not fall within the class of impeachable offenses; Nixon clearly did.

Now, I do not believe Obama has fallen within that ambit, but that's not my actual point. (Actually, Schuck's piece bodes well for a certain bet I made). The point is that a definition such as that employed by Schuck denudes the constitutional provision of all meaning, and embraces Ford's cynical position, one that would entail that the President serves at the will of Congress. That isn't law, let alone constitutional law. And it shouldn't be encouraged. We have seen, with over a century between them, two manifestly improper uses of the impeachment clause. A third could routinize it, and that could lead nowhere good.