fbpx

What Is the Impeachment Power For?

The power to impeach officers of the United State government is one of the gravest powers entrusted to Congress in the U.S. Constitution. The power is far-ranging and flexible, laying at the feet of Congress the ultimate responsibility to insure that the officers of the federal government are acting in the national interest and not abusing their authority. Congress has not had many occasions to use the power over the course of the nation’s history, and the most frequent targets have been low-level judges who had engaged in undoubtedly bad behavior. Impeachments of more high-profile targets like presidents raise more difficult political and constitutional issues about how the power should be used and what the role of the impeachment power might be within the American constitutional system.

We might distinguish among three uses of the impeachment power, which I will call the political, the personal, and the constitutional. I believe that we should largely reject the first, and should be very cautious of the second. We do not always appreciate the significance of the third.

We might envision the impeachment power as a political weapon. Such a use of the impeachment power might be particularly partisan, but need not necessarily be so. When utilized as a primarily political instrument, the impeachment power’s significance is that it accomplish ordinary political ends. Impeachment in this vein is simply politics by other means.

It is the ordinary stuff of politics that we disagree over policy and personnel. We have well established tools for trying to overcome those disagreements and make collective decisions about how best to advance our common interests. We have elections; we deliberate; we negotiate; we compromise. It is a foundational principle of democratic forms of government that when incumbents lose an election, they turn over governing power to the electoral victors and wait their turn to make a case to the electorate that they should be returned to power.

The impeachment power was not designed to be an alternative mechanism for overturning disfavored election results and circumventing the normal give-and-take of the policy-making process. The constitutional drafters did not give Congress a free hand to remove government officials with whom they disagreed. They gave Congress only the limited power to charge wayward officials with having committed specific high crimes and misdemeanors and to subject them to a trial to determine whether such charges are true. As a matter of raw power, a sizable and determined congressional majority could use the unchecked impeachment power to clear their opponents from government offices and pave the way for their own favored policies and personnel. This would be nothing but an abuse of the powers entrusted to Congress by the Constitution and a radical departure from our accepted understanding of the practical workings of our constitutional system.

Throughout our history, legislators have been very wary of setting a precedent that might suggest that Congress could use the impeachment power as a tool for overcoming policy-making gridlock or for settling political scores, and they were right to do so. Unfortunately, those who embraced #Resistance and marched in opposition to the legitimacy of the very idea of a lawfully elected President Donald Trump quickly looked to the impeachment power as the next weapon of choice. In doing so, they tarnished their own cause and did their own constitutional damage by rendering the impeachment power suspect. Extreme political polarization and divided government can create temptations to use the impeachment power as just another way to outmaneuver one’s opponents. We should not normalize the impeachment power in that way.

A second use of the impeachment power is primarily personal. Impeachments can be personal when what is primarily at stake is the continuation of a given individual in office. Such an impeachment is very consequential for the individual, but is not necessarily particularly consequential for the system as a whole. This is a sometimes necessary use of the impeachment power, but it is not particularly uplifting or compelling. Ironically, this use might also dominate our thinking about the impeachment power.

We are encouraged to think of impeachments in personal terms because they easily fall into the tropes of a crime drama. An impeachable offense is committed, or at least alleged to have been committed. A suspect is brought before a court to answer those charges. Civil order is restored by finding the defendant innocent or guilty of the charges and an appropriate sanction imposed. But this narrative does little to explain why we should impeach. Impeachments are not about law and order; they are a constitutional solution to a political problem.

Impeachments that are primarily personal might be justifiable when the possibility of someone continuing in office has simply become intolerable, but we should approach this problem very cautiously. There are often alternatives available to contain the damage that an individual can do without the necessity of an impeachment. Nonetheless, some judicial impeachments have taken this form. Judges who can no longer be trusted to act appropriately in conducting trials or who face imminent jail sentences for their own criminal behavior force the hand of Congress. An official who cannot be effectively checked by any other means might put Congress in the position of having no choice but to pursue impeachment and removal in order to stop a string of abuses. Arguably, an individual officeholder who has egregiously violated well established political, legal or constitutional norms might need to be removed because their mere presence is no longer consistent with the nature and terms of their office.

An important aspect of the impeachment of Bill Clinton took this form. At the heart of the movement to impeach was the sense that there was a basic conflict between Clinton’s personal conduct and the stature and dignity of the office of the president. The impeachment failed in part because much of the nation did not agree that there was an irreconcilable discordance between the man and the office. The people had elected and reelected Clinton with a clear-eyed view of his personal failings, and new revelations and new scandals arising from his character flaws did not fundamentally alter that judgment. In such a circumstance, an impeachment can seem like an effort to re-litigate the election, and Congress is urged to “move on.” If the impeachment power is turned against a president, Congress has a high burden to meet in showing why there are no adequate alternatives to waiting to replace the incumbent at the next election.

The third use of the impeachment power is actually the most important but it is often overlooked. This is when impeachments are used for constitutional purposes. I do not mean using the power in a manner consistent with the Constitution. I mean using the impeachment power to articulate, establish, preserve and protect constitutional norms, or as I have sometimes characterized it, to “construct” constitutional meaning and practices.

Impeachments are particularly personal when the relevant constitutional norms are already clear and generally supported, and the individual in question has simply violated them. Impeachments serve a larger constitutional function when the norms at issue are not particularly clear or well accepted. The impeachment itself becomes a vehicle for trying to establish the new normative commitments. The fate of the individual being impeached is less important than the message being sent. The officer in the docks is held up as an object lesson. The impeachment is primarily educative and forward-looking, not punitive and backward-looking. The critical audience for the impeachment is the other current and future federal officers who are being instructed on the proper bounds of acceptable political behavior. The actual removal of the impeached official is almost beside the point. The impeachment is the message. Once the message has been sent and received, the mission has been accomplished.

Such norm-creating use of the impeachment power had been part of the British experience as Parliament struggled to wrest greater authority from the king, and it has been part of the American experience as well. When Associate Justice Samuel Chase was impeached for his judicial conduct in the run-up to the 1800 elections, the Jeffersonians hoped to set some clear ground rules for the federal judiciary in the new constitutional system. Federal judges could not understand themselves to be partisan actors on the political stage and expect to keep their offices. When President Andrew Johnson was impeached in the midst of Reconstruction, Republicans in Congress wanted assurance that the president would not use all the tools at his disposal to obstruct congressional policy and undermine the political base of the members of Congress. Johnson was spared conviction in the Senate when he apparently satisfied enough swing members that he would relent in his battle with Congress and serve out the rest of his term quietly.

Sometimes Congress just needs to use the impeachment power to emphasize the stability of the norms that were already in place. An impeachment in that context can be norm-reinforcing, rather than norm-creating. Allowing a judge to keep his seat after egregiously bad behavior has been exposed and sanctioned in other venues might send the wrong message to the larger judiciary that such behavior is not so bad. An impeachment puts an exclamation mark on the political and legal system’s judgment that some actions should not be tolerated. The question to be asked in such circumstances is whether the established norms really require reinforcement by these means.

Advocates of an impeachment need to think about what they are hoping to accomplish. Other political actors who are being asked to lend their support to such efforts must similarly consider what is to be gained by making use of such a powerful constitutional weapon. Proponents of an impeachment need to be able to explain why it is now time to make use of a last resort option and why there are no better tools available for accomplishing their ultimate political objectives. There are times when an impeachment is necessary, but we should not want impeachments to become part of our normal political experience. It is an extraordinary remedy for extraordinary situations, and if we reach for that remedy we should know why we are doing so and be prepared for the consequences.

Reader Discussion

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.

on May 22, 2017 at 10:17:20 am

Refreshingly sensible and dispassionate. Well done!

read full comment
Image of Mark Pulliam
Mark Pulliam
on May 22, 2017 at 10:20:38 am

Sometimes you can judge an idea by its proponents. https://www.google.com/amp/s/amp.cnn.com/cnn/2017/05/12/politics/kfile-democrats-impeach-trump/index.html

read full comment
Image of Mark Pulliam
Mark Pulliam
on May 22, 2017 at 10:32:45 am

Anyone up for a reprise of the Samuel Chase case?

Like Mark, I say well done to the essayist.

read full comment
Image of gabe
gabe
on May 22, 2017 at 11:51:47 am

Coupla additional thoughts:

1) Whittington does an excellent job "parsing" out the *partisan* from the political.
2) Were the US system not to possess this delineation between the partisan and the "political" (properly understood), it would resemble the UK's Parliamentary system where governments may fall upon a single "no-confidence" vote.
3) Perhaps, whittington is a little too strong with respect to the admonition that the "political" option is to be (and was intended to be) avoided. One may argue that both the Chase and the Johnson cases were "political", although not partisan - a difference of some import.
4) A number of scholars have written on the "specificity" of high crimes and misdemeanors. What they are remains an open question to be sure, but I must note that many of those same writers have acknowledge that the very lack of specificity implies a *political* component - again, however, NOT a partisan component.

All in all. a very well done essay especially the concept of "norm reinforcement and creation."

read full comment
Image of gabe
gabe
on May 22, 2017 at 16:16:21 pm

Let me weigh in briefly. At one time I wrote the leading blog advocating the impeachment of Obama.

The main problem with impeaching a president is political. Congress doesn't like to impeach presidents. Obama was quite impeachable, but Congress never acted; even with a Republican majority. I laid out a solid line of documentation of corruption and abuses of power (along with general incompetence). Even though he was, IMO, a slimebag and a chronic liar, Congress was not interested.

So over here is a theory advocated by the author of the essay. And over here is the reality: Even though you have someone profoundly unsuited for the office, Congress is generally unwilling to act without firm political support.

That is one of the reasons I advocate a more republican and less democratic government.

A pure democratic republic has democratically elected representatives, but they are not under the direct control of the electorate. The representatives can act according to conscience. A degree of trust is required so the representatives can make policy in secret.

A pure representative democracy also has elected representatives, and they are under strong control of the electorate. The representatives must act in accordance with the will of the electorate (and those with great influence over the ability of the representative to be reelected) or they will be removed from office. Power, not conscience, drives policy. Trust is low, so all actions of the representative are made as transparent as possible.

In some nations votes on impeachment are held anonymously. Experience shows that the anonymity creates its own problems when the ruling of the trial is contrary to the wishes of the democracy. In that case the democracy will always immediately accuse the jury of corruption.

So, when presented with the question of impeachment, politics plays the dominant role--at least in a democratic republic such as ours. A quick googling turned up this recent dissertation on the problems of failed presidents in South America. One in six presidencies fail there. The dissertation studies the hypothesis of "freedom to change" vs "democratic continuity." It asks: How much effect does the ability to impeach have on survivability, and how much effect does authoritarianism have? (Christopher Martinez, Loyala University, Chicago).
http://ecommons.luc.edu/cgi/viewcontent.cgi?article=2479&context=luc_diss

In summary, the effects of political institutions have a greater effect on impeachment than does wrong-doings and scandals. The dissertation is interesting because it may lay out a game plan that progressives and extreme leftists are most likely to use to try to remove Trump. For Trump it describes how to avoid impeachment, or how much he can get away with, depending on how he might want to look at it.

read full comment
Image of Scott Amorian
Scott Amorian
on May 08, 2019 at 17:46:00 pm

[…] if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of When is Impeachment a “Vain Exercise”? – iftttwall
When is Impeachment a “Vain Exercise”? – iftttwall
on May 08, 2019 at 18:28:11 pm

[…] if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of When is Impeachment a “Vain Exercise”? – ALibertarian.org
When is Impeachment a “Vain Exercise”? – ALibertarian.org
on May 08, 2019 at 23:11:55 pm

[…] if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of When is Impeachment a “Vain Exercise”? – Grossly Offensive
When is Impeachment a “Vain Exercise”? – Grossly Offensive
on May 08, 2019 at 23:18:27 pm

[…] if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of [Keith Whittington] When is Impeachment a “Vain Exercise”? – Jehtro Lewis – Blog
[Keith Whittington] When is Impeachment a “Vain Exercise”? – Jehtro Lewis – Blog
on May 09, 2019 at 23:48:48 pm

[…] if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of When is Impeachment a “Vain Exercise”? – Comparing Views
When is Impeachment a “Vain Exercise”? – Comparing Views
on June 05, 2019 at 15:51:52 pm

[…] but it is not a mainstream view—for good reason. I’ve written about that issue elsewhere. Let’s set that problem […]

read full comment
Image of Alan Dershowitz Is Wrong About Impeachments | Our End of the 'Net
Alan Dershowitz Is Wrong About Impeachments | Our End of the 'Net
on September 27, 2019 at 16:41:41 pm

[…] “if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the […]

read full comment
Image of Even if it fails, impeaching Donald Trump will serve a noble purpose | Australia News
Even if it fails, impeaching Donald Trump will serve a noble purpose | Australia News
on September 28, 2019 at 20:48:34 pm

[…] impeach. Impeachment can serve other purposes, as some advocates for the process have argued. It can serve as a tool for shoring up, or changing, the accepted norms of political behavior. Impeachment can be a rebuke […]

read full comment
Image of Perspective | Impeachment isn't mandatory — even if Trump committed impeachable offenses | A1TopNews
Perspective | Impeachment isn't mandatory — even if Trump committed impeachable offenses | A1TopNews
on September 28, 2019 at 21:07:52 pm

[…] impeach. Impeachment can serve other purposes, as some advocates for the process have argued. It can serve as a tool for shoring up, or changing, the accepted norms of political behavior. Impeachment can be a rebuke […]

read full comment
Image of Perspective | Impeachment isn’t mandatory — even if Trump committed impeachable offenses - OO Child Care
Perspective | Impeachment isn’t mandatory — even if Trump committed impeachable offenses - OO Child Care
on October 03, 2019 at 05:57:04 am

[…] If you only have time for one essay, read Keith Whittington’s 2017 essay, What Is the Impeachment Power For? […]

read full comment
Image of Impeachment, Then and Now: Essential Readings from Law & Liberty
Impeachment, Then and Now: Essential Readings from Law & Liberty
on December 05, 2019 at 17:28:43 pm

[…] a problematic officer has often been treated as the sole purpose of the impeachment power, but I think that is a mistake. The impeachment power can and has served other purposes than just removing a sitting officer. If […]

read full comment
Image of Can the House Impeach a Former President? – ALibertarian.org
Can the House Impeach a Former President? – ALibertarian.org
on December 09, 2019 at 11:24:01 am

Regardless of where one's political allegiances lie it seems reasonable that the president of any great nation should undergo this level of scrutiny. Furthermore they should be assumed innocent until proven guilty.

read full comment
Image of Dmitri Olayzola
Dmitri Olayzola

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.

Related