Objections to Impeachment, Part 1: The Specter of Abuse

In my most recent post in this series, I laid out the broad categories of impeachable misconduct supported by the evidence of the original meaning of the Constitution’s impeachment standard — “high Crimes and Misdemeanors.” The categories are truly sweeping in their reach, I argued, conferring on the two houses of Congress substantial discretion to judge whether misconduct fitting within these categories warrants impeachment and removal in a specific case.

Understandable Concerns

A broad understanding of the impeachment power raises certain inevitable objections. This week, and next, I take up the most important such objections and offer some points in reply. The objections tend to fall under four somewhat overlapping headings:

First, a broad conception of the impeachment power, even if correct as a matter of the Constitution’s original meaning, would be too susceptible to abuse. Congress, armed with the full constitutional power of impeachment, would misuse the power and impeach for insubstantial, partisan, or mere policy purposes.

Second, a broad conception of the impeachment power, even if supported by evidence of original meaning, is simply too strong in principle to be accepted. Even applied faithfully, it would make presidents too subject to congressional control, which eventually would transform our presidential system, under a structure of separation of powers, into a quasi-parliamentary regime in which presidential administrations stand or fall on the basis of what amounts to a vote of confidence or no-confidence by the Senate. (The equivalent objection with respect to judicial impeachments would be that a serious impeachment power would “compromise judicial independence” — a point I will take up separately, later in this series.)

Third, a variation of the preceding objection is that impeachment ought not be permitted simply to “overturn the results of an election.” The argument here is that, where the people have spoken the power of impeachment should remain silent. Under softer versions, the impeachment power should not be exercised where an electoral check might suffice. In more extreme forms, however, the argument might be taken to imply that election results serve in effect to “immunize” the victors from impeachment — or should be taken to have “waived” the impeachment power, at least as to conduct (or character) known before the election.

The fourth and final category of objection is that a broad conception of the power of impeachment is contrary to our practice, and that the practice should govern over the abstract constitutional power. Such practice (it is argued) should be taken as settling the meaning of the Constitution — even if narrowing that meaning. James Madison, in Federalist 37, observed that practice and adjudication tend to settle the meaning of uncertain or indefinite laws — “liquidate” their meaning, in Madison’s (fluid) eighteenth century vocabulary. Our impeachment practice, the argument goes, should be understood as doing exactly that. A variation of this objection is that political developments not anticipated by the framers have affected the practical application of the impeachment power, and should be thought to alter —rightly have altered — our understanding of the proper constitutional limits to its scope.

Each of these objections has a certain intuitive appeal. Each has some element of merit. Each reflects at least an understandable concern. But in the end, none is fully persuasive. When one examines the objections carefully, they all seem overstated. The supposed “dangers” of a vigorous impeachment power are greatly exaggerated. Indeed, some of the objections turn around on the objector! In this sense: the arguments offered against a broad power of impeachment end up making the case for a broad impeachment power by highlighting the dangers and defects of current practice. That is, the arguments highlight the far graver problem of a weak impeachment power, weakly employed, and functioning as a weak, ineffectual check against serious misconduct or abuse of executive or judicial power.

And then there’s the simple point of constitutional principle: if we take fidelity to the written Constitution seriously, it really does not matter if we do not like the meaning of the Constitution’s provisions or the scope of power and discretion they may grant. The document’s meaning is what it is; the powers it grants are what they are. At most, these objections make the case for reasonable, responsible, faithful, and principled exercise of the power of impeachment, within the bounds conferred by the Constitution. They do not negate the Constitution’s meaning.

I will take up each objection in turn. Today, I take up the “prospect of abuse” objection. Tomorrow, I will address the “too-strong-a-power-in-principle” objection. Next week, I hope to examine the “shouldn’t-overturn-elections” and the “this-hasn’t-been-our-practice” objections.

The Prospect of Abuse

The first objection is, I believe, the most serious: the power of impeachment, taken seriously, is liable to abuse by Congress — it would lend itself too readily to partisanship in its application and potentially degenerate into impeachment for trivial or insubstantial offenses. There is merit to the objection, but I think there are four good responses that weaken it considerably.

First, yes, of course, the impeachment power can be abused! All power can be abused. That is a large part of the reason the framers emphasized the Constitution’s division and separation of powers, and the network of checks-and-balances it produced: the need to guard against and check the potential abuse of power required a system of independent branches, each possessing certain strong checks against the encroachments, constitutional violations, or abuses of the others. The power of impeachment was regarded as a vital part of that network of checks. In the end, the potential abuse of a constitutional power is not an argument against its existence; it is an argument against its abuse — an argument for its responsible and correct exercise. And it is an argument for checks against the abuse of any power granted by the Constitution — which was exactly the argument for having a serious impeachment power. Impeachment was regarded as a strong check on the strong powers of the executive and judicial branches, to guard against their potential misuse.

The concern that the impeachment power might itself be abused — or simply be too strong in concept, rendering the executive too subservient or submissive to the legislature — was raised and vigorously debated at the Constitutional Convention. Gouverneur Morris was, initially, adamant on that point. The view that prevailed at the Convention, however — and which eventually led even Morris to change his mind on the point — was that it was more important that there be a strong, meaningful safeguard against executive abuse of power. Impeachment was that check, Congress’s ultimate “trump” card (so to speak) in the separation-of-powers, checks-and-balances game.

To be sure, that trump card can be overplayed. Nonetheless, the Framers viewed the power as necessary, and ultimately one most safely vested in Congress. They believed that Congress, the branch consisting of the elected representatives of the people, would be the branch closest to and most accountable to the public for the responsible exercise of its powers. The impeachment power is certainly no more inherently dangerous that other powers the Constitution vests, with appropriate checks, in other branches of government. The president’s military power as commander in chief and even the judiciary’s power of judicial review of the constitutionality of actions of the other branches are surely as potentially “dangerous” as the impeachment power. The specter of abuse is not, in the end, a compelling objection. In principle, it is an argument that could be used to deny the existence of any strong and potentially dangerous power that the Constitution vests in any branch.

A second response: the Framers were sensitive precisely to this concern about potential abuse of the impeachment power and sought to guard against it through three “internal” checks on the legislature’s power in this regard. First, they divided the power between the House and Senate, each exercising different roles (the House deciding on charges, the Senate judging them). Second, they required a two-thirds supermajority for conviction in the Senate. Third, they added the solemnizing requirement that senators sit “on oath or affirmation” when serving as a court of impeachments — a requirement adopted late in the debates at the urging of Governeur Morris. In part because of these three devices, there is good reason to believe and expect that the awesome power of impeachment, even understood in its full constitutional breadth, will be exercised appropriately — with judgment and restraint.

Hamilton noted these internal checks in defending the propriety of vesting a broad impeachment power in the legislative branch: The “division” of impeachment power “between the two branches of the legislature,” he wrote in Federalist 66, “avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches.” The Senate supermajority requirement was an especially powerful internal restraint: the requirement of “the concurrence of two thirds of the Senate” is a “security to innocence” that is “as complete as itself can desire.” The records of the debates at the Constitutional Convention confirm Hamilton’s account and the Framers’ specific intentions in this regard.

It seems unlikely in the extreme, given these internal checks — but of course not impossible — that Congress, encouraged by a proper understanding of the full constitutional power of impeachment, would then twist its power to impeach officers for misconduct, abuse of power, unconstitutional acts, or other serious misbehavior into a raw power to topple administrations over minor policy disagreements or remove judges out of simple disagreement with a single decision. There are just too many actors involved, representing too many disparate constituencies, and with too high a supermajority requirement of consensus to make actual serious abuse of the power very likely. Further, given the high stakes of presidential impeachment, political actors are unlikely to pull the impeachment trigger lightly, even in partisan times.

The nation’s actual experience with the impeachment power has been one of greatest restraint in its exercise — indeed, arguably too great. The bigger concern by far, I submit, is that Congress has utilized its checking power too sparingly, too grudgingly, and with the consequence that too low a bar has been set for the conduct and accountability of executive and judicial officers. At all events, the lesson of experience is that the two-thirds majority requirement for Senate conviction is, in matters of impeachment, an extraordinarily difficult threshold to overcome, even in seemingly very clear cases where an official deserves to be removed.

Third, it is not entirely clear that impeachment of presidents for a strong generalized sense of violation or dereliction of constitutional duty or for failure to perform the duties of office responsibly — a judgment perhaps verging on, but not the same as, a vote of “no confidence” under a parliamentary system — would be an “abuse” of the impeachment power in the first place.

As noted in my previous post, the constitutional categories of impeachment, supported by the best evidence of the Constitution’s original meaning, include serious failure in performance of the constitutional responsibilities of office, whether by affirmative acts or wrongful failures to act because of culpable incompetence. True, the standard of “high Crimes and Misdemeanors” implies something more than ordinary policy disagreements between Congress and the president — a simple vote of “no confidence.” But can it really be said that a pattern or consistent practice of what Congress judges to be grave, serious departures from constitutional obligation — violations of an official’s sworn oath of office — might not rise to the level of an impeachable offense? In such a case, the power of impeachment might (superficially) resemble a vote of no confidence. But that does not make impeachment on such a ground an abuse of the power.

While there might be close cases, and questionable calls, it remains the case that the Framers deliberately left these judgments largely in the hands of those vested with the “sole power” of impeachment and trial — the House and the Senate — and guarded its exercise with the internal checks of division, supermajority vote, and a solemnizing oath requirement, noted above. That does not guarantee there will never be abuses, but again: if experience shows anything, it is that the Constitution’s structural safeguards against misuse of the impeachment power — especially the two-thirds vote requirement — if anything tend to over-protect against the danger of abuse or partisan application.

Fourth and finally, even checks have checks. It is true that Congress’s judgments concerning impeachment — its good faith application of the standard for impeachment supplied by Article II — ought generally be regarded as final. The power and its application are committed broadly into the hands of the House and the Senate. (I will address this point at greater length in a subsequent post.) Nonetheless, it remains the case that the Constitution provides for three separate, independent branches, each armed with powers with which to protect and defend itself. In a sufficiently egregious case, the executive branch and the judicial branch might even push back on Congress’s misuse of the impeachment power and defy a judgment of conviction in an impeachment proceeding.

While it is bracing to contemplate such “meltdown” scenarios — perhaps especially so today, with today’s players and today’s politics seemingly making such scenario a dreadful but realistic possibility — they are ultimately part of the system of separation of powers designed by the framers: strong power checking strong power, abuses of power by one branch giving rise to resistance by the others with the powers at their disposal. That was the original justification for — indeed, the whole point of — vesting in Congress a broad impeachment power in the first place: a strong check was necessary to balance a strong executive. Were that check truly abused, the same separation-of-powers justification for its existence might in an extreme case justify its resistance.

Tomorrow, I turn to the objection that the original meaning of impeachment simply yields “too strong” an impeachment power to be acceptable.

Reader Discussion

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on September 13, 2018 at 11:29:39 am

Another in an excellent informative and thorough essays on the impeachment power.

One question for the able Professor:

"In a sufficiently egregious case, the executive branch and the judicial branch might even push back on Congress’s misuse of the impeachment power and defy a judgment of conviction in an impeachment proceeding."

What precisely would this look like? I am at a loss to conceive of anything other than outright *defiance8 of any such judgement; what specific powers could the Executive and Judicial Branches retrieve from their constitutional quivers?

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on September 13, 2018 at 13:29:07 pm

The only thing I can think of is that if the Senate should convict on grounds not identified in the bill of impeachment handed down by the House. I think at that point the Chief Justice, acting as the presiding judge, would have to issue a statement in the nature of a JNOV ( judgement non obstante veridicto [notwithstanding the verdict]).

On another point, I've started Tom West's "The Political Theory..." You're right, he is much closer to my thoughts than I imagined.

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Image of EK
on September 14, 2018 at 06:02:10 am

[…] Yesterday, I laid out the four principal types of objections to a broad understanding of the constitutional power of impeachment.  Yesterday’s post focused on the supposed danger of abuse. Today, I take up the objection that, even if supported by evidence of original meaning and even if employed in good faith, the power of impeachment would simply be too strong in principle and inevitably lead to congressional dominance. More than a check, it would be a threat to separation of powers, tending to sow seeds of destruction of the Constitution’s balance between the branches. […]

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Image of Objections to Impeachment, Part II: The Specter of the “No Confidence” Vote
Objections to Impeachment, Part II: The Specter of the “No Confidence” Vote
on September 15, 2018 at 20:25:56 pm

The power to impeach was already abused when directed towards Bill Clinton for personal conduct. So we're not supposed to be worried about the Russians owning the White House? Well, with a judge like Kavanaugh on the SCOTUS being Trump's stay out of jail free card, no president---at least no *Republican* president--need worry ever again. (note that Kavanaugh seems to think that Nixon should have been left alone, that Clinton's doings made fun smutty reading, but that Trump should be sacrosanct leads me to believe that political party indeed makes a difference in his thinking).

The power to impeach should not be a monopoly of only one party, and disagreeing with the power to impeach does seem to weaken the part of the Constitution where it's mentioned.

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Image of excessivelyperky
on September 20, 2018 at 05:57:10 am

[…] addressed two other objections last week to giving the impeachment power its full due: the specter of abuse, and the fear that a too-serious impeachment power might too closely resemble a parliamentary vote […]

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Image of Objections to Impeachment, Part 3: Overturning the Result of An Election
Objections to Impeachment, Part 3: Overturning the Result of An Election
on October 10, 2018 at 06:02:10 am

[…] that, if the power of impeachment were given its full constitutional scope, (1) the power might be abused; (2) use of the power would tend too much in the direction of congressional dominance, leading to a […]

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Image of Objections to Impeachment: The Protest that “This Hasn’t Been Our Practice,” Part 1
Objections to Impeachment: The Protest that “This Hasn’t Been Our Practice,” Part 1
on October 03, 2019 at 05:57:35 am

[…] The Specter of Abuse […]

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Image of Impeachment, Then and Now: Essential Readings from Law & Liberty
Impeachment, Then and Now: Essential Readings from Law & Liberty

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.