Law or Politics – Constitution Dictates That Impeachment Must Not Be Partisanby Peter Brandon Bayer - Associate Professor of Law, University of Nevada, Las Vegas May 29, 2019
Barely two decades since the impeachment of Bill Clinton, the people of the United States again are confronting the possibility that their president, now Donald Trump, could be impeached, meaning charged by the House of Representatives with offenses that, if proved in a Senate trial, would remove him from office.
Not surprisingly, politics have pervaded the debate.
Many, perhaps most, assume that impeachment of a president should be, or inevitably will devolve into a political melee. The few historic examples that exist show political motivations – to varying degrees – in the impeachment proceedings against Presidents Johnson, Nixon and Clinton.
Democratic House Speaker Nancy Pelosi told The Washington Post in March that “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.”
Most Democratic leaders don’t want impeachment, at least at this point, fearing a political backlash in 2020 if they pursue impeachment. Some believe that if impeached in the House and tried and acquitted by the Senate, Trump’s political popularity will skyrocket like Bill Clinton’s did after his impeachment in 1998.
Nonetheless, impeachment supporters in the House now number, according to The New York Times, “roughly two dozen.” House and Senate Democratic leaders are facing increased calls by a growing number of colleagues to begin formal impeachment proceedings against President Trump.
To date, only one Republican has joined the chorus, Michigan Rep. Justin Amash.
Other Republicans – supporters of President Trump – accuse Democrats of using impeachment to overturn the 2016 presidential election.
Politics now characterize the serious issue of whether Trump has obstructed justice and committed other offenses worthy of his removal from office.
As a scholar of law, I believe that under our Constitution, impeachment – or the decision not to impeach – must not be based on partisan considerations.
Rooted in the Constitution
Some advocates of impeachment have recognized the correct basis to decide whether Congress should investigate and impeach President Trump.
Rep. Mary Gay Scanlon of Pennsylvania announced in a May 21 press release, “We took an oath to uphold our constitution and the President’s efforts to cover up his acts, and those of his campaign and administration, threaten the foundation of our democracy.”
Similarly, Sen. Elizabeth Warren, D-Mass., a Democratic candidate for president, urged that based on their oaths to safeguard the Constitution, the House of Representatives has an affirmative duty to begin a full impeachment investigation.
Leaving aside whether the present record supports an impeachment inquiry against Trump, I believe Warren and Scanlon are right that the decisions whether to impeach and possibly remove any president from office should be rooted in the Constitution itself.
Corrupting the office
The Constitution gives the House of Representatives sole power to impeach, meaning to formally charge that the president (or other federal “Officer”) has committed offenses worthy of immediate removal from office.
The Senate conducts the impeachment trial. A conviction requires a super-majority of no less than two-thirds of all senators.
The Framers decided that power as drastic as removing a sitting president should belong to Congress, the branch of government most closely associated with the will of the people.
Rather than leaving impeachment to the Supreme Court or other small, unelected body, impeachment becomes the tool of the national will – not a political will, but rather the national will to respect the Constitution’s neutral legal requirements.
Of course, as the Framers well knew, by its very nature Congress would be, and indeed is, politically partisan. Voters elect members of Congress to enact laws based on those voters’ policy preferences. Inevitably, laws favored by the “majority” may frustrate or even hinder voters whose candidates lost.
Such is the normal “give and take” of democracy.
However, the Constitution clarifies that regarding impeachment, Congress cannot conduct business as usual. Like declaring war, impeachment is one of the rare matters where politics should be utterly inappropriate.
The Constitution’s Article II, Section 4 commands that a president may be removed from office only for “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Accordingly, Congress must base its decisions whether to impeach and to remove a president from office on a factual, politically neutral record demonstrating whether the president actually has committed, in the Constitution’s language, “Crimes.”
This plain text tells us that impeachment is not a device by which a disgruntled Congress may negate the voters’ political choice, even if Congress honestly believes a duly elected president’s policies are unsound, reckless or dangerous. Rather, Congress must approach the matter whether a president has committed constitutional “Crimes” as if it were jurors in a courtroom.
Commentators, then, rightly have denounced the seemingly political nature of Clinton’s impeachment and, roughly 130 years earlier, the impeachment of Andrew Johnson.
Offenses against the government
Importantly, history shows that the Constitution’s term “other high Crimes and Misdemeanors” is not limited to actual criminal conduct.
Noted scholars Ronald Rotunda and John Nowak explain that the Framers wisely intended the phrase “or other high Crimes and Misdemeanors” to include undermining the Constitution and similar, “great offenses against the federal government (like abuse of power) even if they are not necessarily crimes.”
For instance, Alexander Hamilton asserted that, while likely to be criminal acts, impeachable wrongdoings “are those offenses which proceed from the misconduct of public men … from the abuse or violation of some public trust.”
James Madison urged that impeachment is appropriate for “loss of capacity, or corruption … [that] might be fatal to the republic.”
And founding father Benjamin Franklin agreed that impeachment is “the best way … for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”
Thus, out of respect for the democratic process, a president cannot be impeached to promote Congress’ political agenda. Nor should lawmakers avoid impeachment because of perceived political cost.
Rather, given its remarkable gravity, a president should be impeached for conduct that – if committed by any president regardless of political or party affiliations – so taints or corrupts the presidency, he or she must be removed to preserve the integrity of American government.
Thus, the standard for impeachment must be politically neutral. Otherwise, impeachment becomes an illegitimate device to overturn elections.