Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
Yesterday, as part of my series of posts about taking seriously the constitutional power of impeachment, I reviewed briefly what I have said in the past about impeachment of federal judges. Today, I take up the same task with respect to presidential impeachments.
I have written considerably more about presidential impeachments than about judicial impeachments. In a number of academic articles over the years in which I have addressed various aspects of presidential power, and generally embracing broad views of such powers based on what I believe to be the original meaning of Article II. At the same time, however, I have championed Congress’s impeachment power as an equally sweeping, and intended, check against abuse by presidents of their sweeping constitutional powers. With respect to presidential power to engage in independent constitutional interpretation; with respect to presidential autonomy from other branches (and resulting claims of presidential privileges, immunities, and superintendence of executive branch decision making); with respect to Commander-in-Chief powers and the executive power over foreign affairs; and with respect to presidential authority to act in cases of dire constitutional necessity to preserve the nation and its people – in each of these areas I have defended broad executive power. But in each case, I have also argued that the check against abuse of such broad presidential power is the correlatively broad legislative-branch power of impeachment.
The Executive Branch’s Interpretive Powers
In “The Most Dangerous Branch: Executive Power to Say What the Law Is,” published in 1994, I advanced a bracing understanding of the independent and co-equal power of presidential constitutional interpretation, even going so far as to defend the constitutional power of the president to decline to execute judicial judgments he concludes are contrary to law – including the Constitution – as the president understands it. That is a dramatic claim of independent presidential power and one very much susceptible to abuse (as all government power is). But, I argued, it was a power subject to the strong congressional check of impeachment. Congress, exercising its similarly independent and co-equal power of constitutional interpretation, could flex its interpretive muscle in the exercise of one of its most important checking-and-balancing powers: impeachment. The President “has formidable powers” with which to effectuate his views of the Constitution, I wrote, but “the other branches are not without power to check” the President’s exercise of independent interpretive authority. By the same reasoning that makes each branch independent of the others in the exercise of interpretive power within the areas of its assigned constitutional duties, “Congress is not bound by the President’s interpretation.”
It followed, I wrote, that “Congress may impeach the President for his refusal to execute statutes or judgments, on the basis of its independent legal judgment that the President’s action constitutes a high crime or misdemeanor within the meaning of the Impeachment Clause.” Congress might do so because it disagreed with the President’s constitutional interpretation on the merits, I continued, and chose an obvious, extreme illustration: “For example, if the President interprets the Constitution as denying Congress the power to pass laws, Congress may impeach him based upon its contrary view on the merits of this constitutional question (and would happen to be correct, in this instance).” But Congress might also, “misguidedly,” reject the theory of my article and “impeach the President merely for asserting and exercising the power to make independent determinations of the constitutionality of statutes, on the ground that such action violates the President’s oath of office and constitutional responsibilities.” Though that view would be “wrong on the merits,” I said, “Congress nonetheless would possess legitimate, interpretive authority to advance it with the constitutional powers at its disposal, including impeachment.
In “Nixon Now: The Presidency and the Courts After Twenty-five Years,” published in 1999, I reaffirmed the independent-interpretive-power view with respect to the presidency. In addition, I took the position that the president, as a matter of the original meaning of Article II, possesses the power to direct or countermand all exercises of the U.S. criminal law enforcement power (including responses to subpoenas by subordinate executive branch officers or by grand juries) and the power to decide, independently, for the executive branch, the scope of “executive privilege” to refuse to comply with compulsory judicial process or congressional subpoenas for information or testimony. (Put starkly, in terms of today’s controversies: the President can fire “independent” Department of Justice prosecutors or legal counsel, countermand prosecutions, countermand subpoenas or other demands for information, and even pardon whomever he thinks appropriate – including himself.)
The check against possible misuse or abuse of such power – legitimate constitutional power possessed by the president – is the constitutional power of Congress to impeach and remove a president based on its independent judgment that the use of powers in such fashion constitutes a high crime or misdemeanor worthy of removal from office. “The impeachment power is an essential one in a constitutional regime with a strong President strongly asserting the full measure of presidential authority and autonomy. The Constitution the framers gave us … contemplates a strong executive subject to the strong check of the impeachment power.”
That article was written against the backdrop of the Clinton impeachment and acquittal, which I will discuss in more detail in a later post. But will you indulge me in quoting some of that article’s more prophetic closing comments?
As the events of 1999 have unfolded, twenty-five years after the Nixon Tapes Case, we have seen answered, unclearly and uncomfortably, the question of whether the impeachment power will be reinvigorated by the first serious situation calling for its application since President Nixon, or whether it will continue gradually to recede into irrelevance – an anachronistic scarecrow that Congress lacks the will to make a serious part of the Constitution’s plan of checks and balances. The impeachment and acquittal of President Clinton is likely to evoke hot debate for decades – as heated as the debate that still rages over President Nixon. Time will tell, ultimately, but it seems hard to avoid the conclusion that the consequence of the Clinton impeachment and acquittal will be both a general weakening of the impeachment power and a ratcheting down of the standards of conduct expected of men and women holding the office of President of the United States. … [T]he Clinton precedent doubtless increases the likelihood that a future President who has committed crimes in office, or otherwise abused the public trust, will fight impeachment, using the Clinton acquittal as something of a constitutional benchmark: the President’s offenses are arguably no worse than President Clinton’s; obstruction of a legal investigation should not be impeachable (he might argue) if a plausible argument exists that the investigation ought not to have been conducted in the first place; in any event the President ought not to be removed if the nation could survive his continuance in office for the remainder of his term; and a President should not be impeached if he retains the support of his own political party (emphasis added).
About the same time, I wrote an entry for the Encyclopedia of the American Constitution (2d ed. 2000), on the topic of impeachment. That essay was intended to be primarily descriptive, but it made certain important (and debatable) claims. As to the scope of “high Crimes and Misdemeanors,” I wrote that “the term does not have a clear, fixed, or determinate meaning, and that application of this general standard was deliberately committed to the judgment of Congress in making the decision whether to impeach (by the House) and convict (by the Senate).”
Congress’s power to interpret and apply this standard, I wrote, “is broad, but not limitless.” The term encompasses “’political crimes’ in the sense of perceived offenses against the Constitution or the People – such as violation of one’s oath of office or breach of a public trust.” But impeachment “must be more than simply a policy vote of ‘no confidence’ in the Executive.” Commission of a serious criminal-law offense was not constitutionally required for impeachment, I wrote, but is “a classic case in which the Constitution contemplates, and Congress’s practice over the centuries confirms, that federal officers should be impeached and removed.” Such offenses had included bribery, tax evasion, obstruction of justice, and perjury.
Perhaps my most controversial assertion (at the time) was that the text of the Constitution did not support the argument, made by some of President Clinton’s defenders, that there must exist a “nexus” between the criminal act committed and an official’s public office. I further observed that the Constitution creates a single standard for impeachment of executive officers and judicial officers. (There is no separate, higher threshold for impeachment of presidents.) “While removal of a sitting President is obviously a more serious matter than removal of a single federal judge, this political reality does not alter the meaning of the Constitution’s terms,” I wrote.
Nor does the claim that removal of a President would “upset” the result of a national election change the Constitution’s standard. Presidential impeachment will nearly always remove an elected leader; the framers, in creating an impeachment standard that explicitly mentions the President and Vice President, obviously contemplated such a possibility.
The entry noted the difficulty of obtaining the requisite two-thirds majority vote to convict in the Senate, a point illustrated by contrasting examples. Even when overwhelming partisan majorities in Congress opposed a presidential administration – as with President Andrew Johnson – there might be “principled defections” of senators who opposed conviction on constitutionally doubtful grounds. And even where few doubted that a president had committed impeachable acts – as with President Bill Clinton – it remained enormously difficult, in a more evenly divided Senate, to convict a popular president who retains “the unified, partisan support of senators of his own party.”
Understanding Executive Power with Lincoln
In “The Constitution of Necessity,” published in 2004, I embraced a broad, Lincoln-inspired conception of executive power – flowing from the duties of the Presidential Oath Clause and its implications – to act in ways arguably beyond the scope of other granted powers, where necessary to “preserve, protect, and defend” the Constitution as an entire operating system. (Including, in Lincoln’s formulation, the necessity of preserving the nation, whose constitution it is).
Conceding such a power to be “dangerous,” I argued that Congress has the “duty of independent constitutional review” of such presidential judgments of necessity, and could rightfully perform this duty “in exercising its legislative powers and the check of impeachment.”
… Congress possesses all of its usual high trump powers with which to check the President: control over appropriations, a check on appointments, and ultimately the power to impeach and remove a President it believes to have abused the powers and duties of the office. In the end, these powers will work to check an abusive President, or nothing will. The Framers believed that term of office, congressional powers generally, and the power of impeachment would serve as the only appropriate, but nonetheless entirely sufficient, checks on the President.
In The Constitution: An Introduction, my co-author Luke Paulsen and I adopted a generally broad view of the constitutional power of impeachment. As to Nixon, our book noted, rather neutrally, that Nixon resigned under “the threat of impeachment” and asserted, rather less neutrally, that Nixon was “a crook” who “almost certainly committed the serious criminal offense of obstruction of justice, for personal political gain.” As to Clinton, we wrote simply that Clinton gave answers in sworn legal proceedings that were “at best willfully misleading and at worst outright perjury,” and that he was impeached but “escaped conviction” when the Senate failed to muster the necessary two-thirds majority.
In the book, our most extensive discussion of presidential impeachment came in connection with the Johnson impeachment. We noted that Johnson came within one vote of conviction, that the main grounds for impeachment concerned Johnson’s defiance of the likely unconstitutional Tenure of Office Act, and that the “underlying reason” for Johnson’s impeachment was not his violation of that law “but the fact that Congress had concluded that Johnson was a really bad president – a fair point. We wrote: “This raises interesting constitutional questions about the proper scope of the power to impeach for ‘high Crimes and Misdemeanors.” We were explicit that Congress could “impeach and remove presidents for committing ordinary crimes of a serious nature – things for which any person could be arrested, tried, and imprisoned.” But we were on-the-one-hand-on-the-other-hand, lay-out-and-discuss-the-options noncommittal as to whether horrific performance of presidential responsibilities was a constitutionally sufficient basis for impeachment:
[I]f Congress believes that a president has acted in serious violation of the Constitution he has sworn to uphold, abused his office, or completely failed to fulfill his constitutional duties, might not Congress validly impeach and remove him on that basis? That was what Congress tried to do, in effect, in impeaching Andrew Johnson. And it came very close to succeeding.
We then discussed the “important implications” for the Constitution’s separation of powers that such a broad view of the impeachment power would have:
if presidents may be impeached for violation of their constitutional duties as Congress understands those duties, impeachment is a potent check on presidents. Indeed, one might argue that it is too potent, compromising the independence of the executive and potentially reducing presidents to puppets of Congress. On the other hand, if Congress may not remove a president based on its constitutional judgment that the President’s misuse of power constitutes a serious violation of his oath of office and a threat to the constitutional order, it is unclear what meaningful check Congress possesses against a chief executive who willfully abuses power.
Because we intended the book to be more of a comprehensive primer on the Constitution than a work of advocacy, we left matters at the descriptive level: “The impeachment of Andrew Johnson, and his narrow escape, thus yields unclear lessons about the impeachment power.”
In a spring 2015 blog post on “The Volokh Conspiracy” promoting the book and its themes, I described the book’s treatment of impeachment, but with a more provocative edge: I suggested the propriety of the more-aggressive position on impeachment, whether applied to the president or to judges (the position I would later take in “Checking the Court,” discussed above.) And in a Law & Liberty article this winter, I explicitly embraced the proposition that a broader, overtly constitutional-political formulation of the charges against Johnson, indeed would have fallen within the scope of the Constitution’s impeachment standard.
Consistency and Other Hobgoblins
All in all, it’s fair to say that I have consistently taken a broad view of the scope of the constitutional power of impeachment as a check on misconduct or misuse of power by presidents or by judges. In academic articles, spanning nearly thirty years and a number of topics; in short on-line publications and blog posts; in legal encyclopedia entries; in a comprehensive monograph on the Constitution, I have advanced essentially the same broad understanding of the impeachment power.
I have been nothing if not consistent – but consistency itself proves nothing! I may just have been consistently wrong all these years, and be too pigheaded now to retreat from past positions taken. Consistency might at most disprove hypocrisy or refute the charge that a position was contrived to suit a particular occasion. But it does not make the position right.
That is the burden of the next several posts, which turn to the original meaning, structural logic, and history of the Constitution’s provisions on impeachment.