Impeachment is not a legal matter of proving “high crimes and misdemeanors.” It is a political matter of will.
Senator Cruz was right. Although it is true that a simple House majority can vote out articles of impeachment, successfully impeaching a president means removing him from office—actually purging the lawlessness. Removal requires, in addition, the president’s conviction on articles of impeachment by a two-thirds vote of the Senate.18 That vote will never happen in the absence of extraordinary political pressure on these elected officials. That is, there would have to be such a robust national consensus that the president must be ousted that at least 67 of the 100 senators would vote to do it, notwithstanding the partisan and ideological ties many have with the president, the security of the six-year term that tends to make a senator (especially in the early years) less responsive than a House member to his constituents’ wishes, and the guarantee of media demagoguery over the very thought of impeaching a liberal Democrat.
At this point, while there is increasing angst over Obama’s policies and growing disapproval of his presidency, there is no public consensus that he should be removed from office. The legal case for impeachment is very strong. The political case lags far behind—and it is the only case that matters. Political cases have to be built.
“Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?”
These epigrammatic questions were posed by George Mason at the Philadelphia convention in 1787. They elucidate the Framers’ rationale for including in the Constitution a procedure for the impeachment and removal of a president.1
Few matters at the convention addled the delegates as much as the dangerous potential that the president of the United States—the powerful new position they were creating, the single official in whom they decided to vest the entirety of federal executive power—could become a king. The purpose of the Constitution was to safeguard liberty, not sow seeds for the very tyranny from which the American colonies had liberated themselves. Much of the convention, therefore, was dedicated to foreclosing that possibility.
First, the president would have to face election every four years. He would have immense authorities as the chief executive, but they would be checked in every important particular. For example, the president would be commander in chief, but Congress would retain the power to declare war and hold both the purse and significant powers over the armed forces. The president could make treaties and broadly conduct foreign affairs, but international agreements could not amend the Constitution (there being a separate process for that), treaties could not take effect unless approved by a Senate supermajority, and Congress was empowered to regulate foreign commerce. The president would appoint major government officials, but they could not take office without Senate approval.
While the Framers took care to set limits on executive powers, they also sought to ensure accountability by vesting those awesome powers in a unitary executive rather than a committee or a minister advised by a privy council.2 Ultimately responsible for all executive conduct and unable to deflect blame for wrongdoing, a single president would be amenable “to censure and to punishment,” Alexander Hamilton argued.3 The future Supreme Court justice James Iredell likewise observed that a president would be “personally responsible for any abuse of the great trust reposed in him.”4
For the unitary executive to be truly accountable, the Framers provided a mechanism to hold him to account. It would be “indispensible,” as James Madison put it, for Congress to have the power to impeach and remove the president in order to protect the nation against “the incapacity, negligence or perfidy of the chief Magistrate.” At the Commonwealth of Pennsylvania’s later debate over ratification of the proposed Constitution, James Wilson explained that the imperative of a removal power stemmed from both the concentration of executive authority in one public official and the principle that no man was above the law:
The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. . . . Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege, is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.5
Support for the impeachment remedy was overwhelming, though not unanimous. Gouverneur Morris and Charles Pinckney, for example, worried that impeachment proceedings might interfere with the president’s effective performance of his duties. Moreover, because chief executives would always have subordinates in the commission of any crime, they thought it sufficient that these “coadjutors” could be punished during the presidential term. Morris also offered what may be the ultimate argument for the political rather than legal essence of the matter: If a president were reelected, he opined, that would be sufficient proof that he should not be impeached.
Quite rightly, the other delegates were not moved by these qualms. After all, a president who was corrupt in the execution of his duties would spare no corrupt efforts to get himself reelected, especially if winning would immunize him from impeachment. His perfidy might not be discovered until after reelection was secured. These all too real possibilities, Mason pointed out, “furnished a peculiar reason in favor of impeachments whilst [the president was] in office.” Plus, the law regarded principals as responsible and thus punishable for the wrongs of their coadjutors; manifestly, this should no less be so when it came to the president—the principal capable of doing the greatest harm to the republic. It was, unsurprisingly, Benjamin Franklin who offered the convention’s most bracing point in favor of impeachment: Historically, when no impeachment remedy was available to a society, “recourse was had to assassination” in cases where “the chief magistrate had rendered himself obnoxious”—an intolerable outcome that not only “deprived [him] of his life but of the opportunity of vindicating his character.”
Ever concerned about the balance of powers among the branches that is the Constitution’s genius, the Framers did worry that granting impeachment authority to Congress could give the legislature too much power over the executive. Any governmental power can be abused, and impeachment is no exception. But though this danger could not be discounted, it would be mitigated by the unlikelihood that a large bicameral legislature drawn from different states with divergent interests—as opposed to a single chief executive—could be broadly corrupted. Moreover, the high hurdle of a two-thirds supermajority needed for conviction in the Senate would guard against wrongful removal.6
History attests to the Framers’ wisdom in this regard. In over two and a quarter centuries of constitutional governance, articles of impeachment have been formally voted by the full House of Representatives against only two American presidents, Andrew Johnson and Bill Clinton. In each case, there were insufficient votes in the Senate to convict and remove the incumbent from office. A third president, Richard Nixon, would surely have been impeached and removed had he, like Johnson and Clinton, chosen to fight to the bitter end.7
The convention delegates concurred in the principles that the United States is a nation of laws not men and that the potential for abuse of the presidency’s awesome powers required making provision for removal of an unfit incumbent. This consensus, however, did not immediately translate into agreement on an impeachment
