If we want to understand impeachment, we need to think seriously about the original public meaning of the term.
Last week I participated in two panel discussions at a Virginia Continuing Legal Education seminar, held at the Washington Library at the General’s Mount Vernon estate (it’s a spectacular place). Technically the panel dealt with Executive Orders but the moderator was John Dean (of Watergate fame—fit as a fiddle after all these years). So naturally the talk turned to impeachments. That got me thinking: arguably, it’s quite likely that the next President or perhaps some other official will be impeached (though not convicted). Three reasons:
- Impeachment is the only remaining means of disciplining the Executive. Withholding funds? There’s one budget bill, and it has to pass. Hearings? Congress no longer does that because all it gets is a snow job. Appointments? There’s always the recess, or maybe several; and there are tsars and tsarinas who don’t need no appointment. Legislation? Asked and answered. So you might as well do something other than fundraising: impeachment. At least that’s in the Constitution.
- Speaking of which: both presidential contenders, throughout their careers and this mercifully-soon-over campaign, have displayed an aggressive contempt for the Constitution, from the Preamble to Article XII. The faithful execution of the laws isn’t high on their respective bucket lists. Bribery, or other high Crimes and Misdemeanors? Persona ipsa, etc. ?
- Both contenders have made it clear that they will not divorce themselves from their private business enterprises (and would you believe them if they said otherwise?). We won’t know where the White House ends and the Foundation or Enterprise begins. Impeachment is a good way to find out.
Follow the speculation a bit further: we have impeached Presidents; judges and justices; a U.S. senator (which raises the interesting question of whether a Senator is a “Civil Officer of the United States” for the purposes of Art. II Sec. 4); and once, in 1876, a cabinet official who had resigned his civil office (is that covered? The official was the excellent William W. Belknap, who as Secretary of War under the Grant administration had engineered various kickback schemes to keep his three wives, two of them sisters, in shoes that transform a woman. It’s not as bad as it sounds: he married them sequentially and none was an East European import and also Mr. Belknap started the National Weather Service. But I digress.) Curiously, though, we have never impeached a “civil officer” in office—the scenario plainly contemplated by the Constitution.
I’m not giving anyone any ideas because I don’t have to: the thought has occurred to the House of Representatives even as we speak. House Republicans have agitated for the impeachment of IRS Commissioner John Koskinen for his role in the agency’s campaign against conservative non-profits and the subsequent investigation. That particular crusade will not and perhaps should not go very far. But the basic idea is on the table, and it will get a try-out in the next administration.
I’ll hazard one more prediction. My former colleague Norm Ornstein has vehemently defended Mr. Koskinen as an honorable civil servant who tried to make the best of a very bad situation. If that’s right, it’s predictive. The incoming President’s consiglieri will be smart enough to surround themselves with fall guys and gals—earnest, otherwise decent people who are sufficiently glassy-eyed to serve as Deputy Assistant Secretary of Something or Other. The target on their backs will come with the office.