rare—a process reserved for grave public wrongs. It does not make impeachment arbitrary, as implied by the deservedly maligned claim that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” It is one of history’s curiosities that this assertion was made in 1970 by Congressman Gerald R. Ford during his failed effort to impeach William O. Douglas, the irascible liberal Supreme Court justice. Ford would replace Spiro Agnew as vice president before the end of 1973, and Richard Nixon as president eight months later—Agnew and Nixon both having resigned to avoid impeachment and removal.17
It is odd that politicians, law professors, and plaintiff’s lawyers have been known to complain that “high crimes and misdemeanors” is too amorphous a notion to apply to political wrongs. They rarely think twice about dressing down, condemning, or filing suit against a corporate CEO for breaches of fiduciary obligations. Do they really think a president should be less accountable than a CEO? In truth, the president, the commander in chief, is akin to a soldier in that his duties make him punishable for actions that would not be offenses if committed by a civilian: such things as abuse of authority, dereliction of duty, moral turpitude, conduct unbecoming, and the violation of an oath.18
The delegates to the Constitutional Convention were adamant that impeachment not reach to errors of judgment, or what Edmund Randolph described as “a willful mistake of the heart, or an involuntary fault of the head.” On the other hand, betrayals of the constitutional order, dishonesty in the executive’s dealing with Congress, and concealment of dealings with foreign powers that could be injurious to the rights of the people were among the most grievous high crimes and misdemeanors in the Framers’ estimation. The concept also embraced the principle that “the most powerful magistrates should be amenable to the law,” as James Wilson put it in his “Lectures on Law,” delivered shortly after the Constitution was adopted.
For example, in response to a hypothetical in which a president, to ram a treaty through to ratification, brought together friendly senators from only a few of the states so as to rig the Constitution’s two-thirds approval process, Madison remarked: “Were the president to commit any thing so atrocious . . . he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.” Iredell made clear that the president “must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives.” It would be untenable to abide a president’s fraudulently inducing senators “to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them.”
Finally, the Framers stressed that the impeachment remedy was a vital congressional check on the executive branch as a whole, not just on the president’s personal compliance with constitutional norms. The chief executive, Madison asserted, would be wholly “responsible for [the] conduct” of executive branch officials. Therefore, it would “subject [the president] to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”
What would the Framers have made of a U.S. attorney general who practices racial discrimination in executing the civil rights laws, politicizes law enforcement, and urges state attorneys general to ignore the laws they are sworn to defend? Of a Homeland Security secretary who obstructs sovereign states trying to defend themselves from illegal immigration? Of a secretary of state who collaborates with foreign governments to diminish American constitutional rights and recklessly neglects to provide adequate security for American officials, who consequently get killed serving in the perilous foreign posts to which she has irresponsibly dispatched them? What would the Framers have made of a Health and Human Services secretary (perhaps I should end the question right there) who energetically violates and rewrites congressional statutes in the simultaneously fraudulent and incompetent implementation of a government plan to seize control of the private economy’s healthcare sector? What would they make of the habit the president’s “coadjutors” have made of misleading and stonewalling Congress?
They would have made a case for impeaching and removing the president.
“I don’t think you should be hesitant to say the word in this room.” The room in which Georgetown law school’s Nicholas Rosenkranz was sitting was on Capitol Hill, specifically, the room where the Judiciary Committee of the U.S. House of Representatives conducts its hearings. The word he was referring to is impeachment.
Professor Rosenkranz was mildly chastising Rep. Steve King, an exceptional Republican congressman from Iowa. Unlike most of his colleagues, Congressman King has exerted himself mightily in search of practical ways to combat the Obama administration’s lawlessness. Yet he was tongue-tied at the prospect of uttering, let alone seriously discussing, the Framers’ carefully tailored solution for incorrigible presidents.
Professor Rosenkranz must have thought he had already broken the spell. Earlier in the session, a hearing on the president’s constitutional duty to execute the laws faithfully, he had been unrestrained: “The ultimate check on presidential lawlessness is elections and, in extreme cases, impeachment,” he testified. But his clarity just seemed to spook senior Republican staffers, who winced at each invocation of the i-word.1
The GOP had better get past its angst—either that or be prepared to accept a government that is more a centralized dictatorship than a federalist republic under the rule of law. Congress has only two means of checking presidential lawlessness: the power of the purse and the power to impeach and remove. If the opposition party in Congress finds it inconceivable that these powers should be used, it is effectively abetting and institutionalizing the imperial presidency.2
Elections are also a check on presidential excess, but more so as originally conceived than as they occur today. In the first elections under the Constitution, each state would choose prominent, knowledgeable citizens to sit in the Electoral College (in direct numerical proportion to each state’s congressional delegation), and these electors would vote for the president and vice president. The rise of political parties caused this system to be frayed after only four election cycles, and the historical trend toward popular elections has rendered the Electoral College largely a formality.
The original Electoral College had been modeled on the Centurial Assembly system of the Roman Republic precisely because the Framers were suspicious of the mischief that political parties could make.3 The idea was to conduct elections without parties or national campaigns: have statesmen elect a president invested in preserving the constitutional framework, rather than indulge the spectacle of candidates promising the moon as they barnstorm the country vying for power. The rapid ascent of partisan politics—in which James Madison and several other Philadelphia convention delegates were key figures—illustrates that the Framers’ lofty goal was unrealistic. It does not discredit their suspicions.
The Framers were particularly attuned to the timeless challenge of managing factional strife.4 They feared that ideological factions, through the machinations of political parties, would be intent on acquiring power and imposing their pieties. They would not prioritize preservation of the Constitution’s delicate balance of power. It is this separation of powers—among the branches of the national government, and between that government and the sovereign states—that guards against any single governmental component’s accumulation of tyrannical power. The competition between authorities, their monitoring and checking of one another, ensures freedom
