JURIST Guest Columnist Mark A. Graber, Regents Professor at University of Maryland Carey School of Law, discusses how Constitutional Politics have shaped the nature of impeachment since the founding of the nation...
Impeachment has always been a combustible mix of constitutional law and constitutional politics, but the way in which impeachment integrates law and politics has evolved from the framing of the Constitution to the mid-nineteenth century to the late twentieth century and may be further evolving at present. The framers designed an impeachment system that would enable a non-partisan Congress to remove a renegade president. The nineteenth-century debates over whether Andrew Jackson, John Tyler and Andrew Johnson should be impeached concerned partisan struggles over policy and the scope of presidential power under Article II of the Constitution. The late twentieth and early twenty-first-century debates over whether to impeach Richard Nixon, Bill Clinton and Donald Trump concerned partisan disputes over whether these presidents had committed crimes and whether those crimes were impeachable. The debate over the Trump impeachment is rapidly turning into a dispute as to whether an admittedly renegade president should and can be impeached when his partisans are indifferent to his political crimes.
The impeachment process the framers designed was long on constitutional politics and short on constitutional law. The House was given the power to impeach. The Senate was given the power to convict. Nowhere in Article I or anywhere else did the Constitution spell out the procedures necessary to impeach or convict, other than to note the Chief Justice would preside over the impeachment of the president and that conviction required a two-thirds vote. The substance of impeachment was only a little more definite. Article II declared that a president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” History clearly demonstrates that “other high Crimes and Misdemeanors” encompasses both ordinary crimes and abuses of office and fails to clearly demonstrate the precise ordinary crimes and abuses of office that are impeachable. For the most part, the framers assumed that presidents who obtained executive office under the constitutional rules would be virtuous state-persons who would not commit acts that might plausibly be impeachable and that, on the rare occasion such acts allegedly occurred, the representatives who obtained legislative office would have the virtues necessary to determine whether the sitting president was unfit to remain as chief executive of the United States.
So understood impeachment fit with a constitutional order that was long on constitutional politics and short on constitutional law. Rather than spell out the legal rules for impeachment, the framers on this matter and others, assumed institutional design provided better protection for improvident political behavior than parchment rules. As Hamilton declared in Federalist 31, “all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers.” Impeachment was no exception.
The three significant impeachment debates during the nineteenth century featured disputes over presidential power. Andrew Jackson was censured by the Senate for removing federal deposits from the Bank of the United States. John Tyler was condemned by the House of Representatives for using the presidential veto as a policy instrument. Andrew Johnson was impeached by the House for cashiering cabinet officials without Senate approval in violation of the Tenure of Office Act (and making improvident statements on the campaign trail in 1866). The subject matter of these disputes were constitutional rules, not criminal law. Jackson, Tyler and Johnson would not have been subject to criminal trial and punishment had they been impeached because their allegedly impeachable offenses were not ordinary crimes.
Partisan disputes fueled impeachments during the nineteenth century. Each impeachment was initiated in a branch of the national government controlled by the opposition party. Senate Whigs censured Jackson because they knew the Jacksonian controlled House would never impeach. House Whigs condemned Tyler (who acted like a Democrat after taking office) because they knew the Jacksonian controlled Senate would never convict. House Republicans impeached Johnson, who was acquitted only when enough conservative Senate Republicans joined with Senate Democrats to reject the charges. These partisan disputes were over policy and constitutional powers. Whigs censured and condemned Jackson and Tyler because their controversial exercises of presidential power were directed at the national bank and other American system measures that Whigs favored and Jacksonians opposed. Johnson was impeached because his controversial exercises of presidential power were aimed at limiting Republican efforts at Reconstruction and preserving Democratic commitments to white supremacy.
The three significant impeachment debates during the last fifty years featured disputes over presidential lawbreaking. Richard Nixon was accused of obstructing justice. Bill Clinton was accused of perjury. Donald Trump is being accused of bribery. Presidents impeached for these actions are subject to subsequent criminal trial and punishment. Nixon had to be pardoned by President Gerald Ford. Clinton was disbarred. Even if an impeached Donald Trump is not tried for bribery on the ground that his actions in Ukraine are better described as an abuse of office rather than as a criminal offense, a fair case can be made that given various investigations already underfoot in New York and perhaps elsewhere, upon removal from offense Trump might be charged with the number of criminal offenses sufficient to have him sentenced as an habitual offender.
Partisanship continues to fuel impeachments, even when the allegedly impeachable conduct is presidential lawbreaking rather than the scope of presidential power. As was the case in the nineteenth century, every effort to impeach a president has begun in the branch of government controlled by members of the rival party. House Democrats impeached Richard Nixon. House Republicans impeached Bill Clinton. House Democrats are impeaching Donald Trump. With the important exception of the last days of Richard Nixon, when several prominent Republicans announced a willingness to impeach, partisanship determines beliefs about whether the president has committed a crime or whether the crime the president has committed is an impeachable offense. Democrats in the Senate who prevented Clinton from being convicted maintained that lying about a private sexual matter under oath was not a “high crime or misdemeanor.” Republicans insist that Donald Trump has committed no crimes or that his misdeeds with respect to Ukraine and elsewhere are not impeachable offenses. Both policy and polarization help explain these partisan cleavages. Bitterly divided along an extended range of issues, from the cultural wars to the role of the government in the economy, neither Republicans nor Democrats are willing to hand the other party a victory, even if that defeat does not affect partisan control over the White House.
The Clinton impeachment also heralded a new trend in the partisan constitutional politics of impeachment. During the 1992 and 1996 presidential campaigns, clear evidence emerged that Clinton at the very least was a philanderer who was not above using his office to create opportunities for extramarital affairs. Whatever most Democrats may have said in public, one suspects few thought Clinton remotely the model of a faithful spouse. While evidence in the 1860 campaign that Abraham Lincoln owned slaves (or in 1796 that George Washington had actually told a lie) might have caused a substantial electoral shift, when the evidence clearly indicated that Clinton had lied about sex under oath, few Clinton voters had reasons to remove Clinton from office. They had voted for him knowing that he was the kind of person likely to lie under oath about sex. Kenneth Starr neither told Republicans (who already believed Clinton was a criminal) or Democrats (who already believed Clinton was a cad) something they did not already know.
The Clinton phenomenon helps explain why increased evidence of Trump’s criminality has little or no impact on Republican opposition to impeachment. During the 2016 presidential campaign, clear evidence emerged that Donald Trump was a lifelong white-collar criminal. Whatever most Republicans may say in public, one suspects that few doubt that Trump has cheated on his income taxes, regularly engages in fraudulent business activities, uses public office for private gain and, for that matter, is at least as great a philanderer as Clinton. Evidence that Trump may have attempted to bribe or otherwise influence Ukraine to investigate a political rival, therefore, is exactly what Trump supporters expect Trump to do. For these reasons, the impeachment hearings neither tell Democrats (who already think Trump is a criminal, unfit for office) or Republicans (who already think Trump is a criminal, fit for office) something they did not already know. Surveys consistently show that a majority of Trump supporters are sufficiently partisan that no evidence of criminality will affect their political choices. Trump supporters differ only in whether they fully support presidential policy in Ukraine or, like Representative Charles Hurd, they wish a president they will not impeach had nevertheless acted otherwise.
The constitutional politics of the Trump impeachment highlight how far constitutional politics in the United States has drifted from the framing vision, even as prominent conservatives insist Americans should acknowledge original constitutional law in the absence of original constitutional politics. The framers assumed a constitutional politics in which non-partisan elites determined whether a president had abused the office or engaged in sufficient criminal conduct to justify removal from office. Jacksonian debates over impeachment demonstrated that what constituted an abuse of office, in the absence of allegations of criminal conduct, was a partisan matter. American debates over impeachment during the last fifty years have demonstrated that it is a partisan matter to determine whether the president is a criminal who warrants impeachment. The Trump impeachment has taken these partisan transformations one step further. The present partisan debate is over whether, in a polarized political regime, any form of political behavior is impeachable, whether a renegade president by framing standards, who satisfies the base by contemporary standards, is allowed to remain in office.
The persons responsible for the Constitution of the United States believed that republican government, in the long run, depended in part on the quality of the governors. The Constitution of the United States was designed to ensure to the extent humanly possible that Americans would be governed by persons who did not abuse office or convert public trust into private gain. They feared the excessive partisanship that would forgive all political sins in the interest of maintaining office. The Trump impeachment is testing this framing vision. The first test will be whether partisanship merely colors how persons look at evidence of impeachable offenses or whether Americans have become so partisan that evidence no longer matters. The second and more important test will be whether a regime in which evidence of abuse of office or criminal conduct no longer matters can remain a republican regime.
Mark A. Graber is Regents Professor at the University of Maryland Carey School of Law specializing in Government and Constitutional Law. Professor Graber is currently working on a book titled Constructing Constitutional Politics: Thaddeus Stevens, John Bingham and the Forgotten Fourteenth Amendment.
Suggested citation: Mark A. Graber, The Constitutional Politics of Impeachment, JURIST – Academic Commentary, Dec. 6, 2019, https://www.jurist.org/commentary/2019/12/mark-graber-politics-of-impeachment/
This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.