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Chapter Two -- Part C

"Stuck"

Ultimately, in the long run, the American people are our nation’s highest court. As the Clinton impeachment proceeding dragged on, I think the American people saw two major problems with the Clinton impeachment case:

1. The rule of law issue. Our country is seriously harmed by the precedent of having someone continue to serve as President when most people believe he has committed felony offenses. Lindsey Graham says: "we’ll survive". We are surviving — so far. But the Nixon-Clinton precedent: "private" criminal wrongdoing is OK for a President, eats away at our nation’s morale and our morality. If we accept this Nixon-Clinton precedent, rather than reversing it or challenging it, this principle may over time destroy both liberty and justice in America. Other Republics have declined and fallen in the past. Immunity from this danger takes constant effort.

2. A case that did not justify complete government disruption with no certain end date. It borders on the absurd to expect elements of all three branches of our government: President, Senate and Chief Justice, to be preoccupied for months with a criminal trial where the issue of criminal wrongdoing hinges on complicated technical questions, and where there is no certain end date. Everyone realizes this. The enormous disruption to our government required by an actual, genuine, full-blown Senate impeachment trial on criminal issues, with something even approaching criminal due process, would be a heavy burden on the nation. Given the uncertainty of such a trial, there could be national security risks. Our modern world is dangerous and unstable as it is.

The Clinton impeachment was a long running sing-song of two refrains — Republicans: "Rule of Law" — Democrats: "Government shut down". Back and forth.

The frustrating aspect of this sing-song is that both sides are right — but it seemed necessary to make an either-or choice. This is a lose-lose proposition. Most Americans finally settled on a weary, unsatisfying conclusion: the Clinton Troubles didn’t warrant shutting down the government for some or most of the year 1999.

Violinist Isaac Stern tells a story of his nightmare: "I was on stage at Carnegie Hall, and I was stuck. Then I woke up. I was on stage at Carnegie Hall. Stuck."

So... our "long national nightmare" is over. But we’re still stuck — with the apparently unresolvable dilemma just outlined. The goal of this chapter is to present a Constitutional theory that resolves this dilemma. One further comment, although the Constitutional passages under consideration apply to removal of the President, vice-President and all civil Officers, in this chapter our discussion will only concern removal of the President. The question of how this theory bears on removal of other civil Officers will be considered in Chapter Five.

Constitutional provisions for Impeachment, Removal, and Disability

This section presents the text of all the sections of the Constitution that seem to have some relevance to impeachment, removal, and disability or inability. Although our main concern is with Presidential impeachment, these sections bear on all civil officers, and on judges. I include the preamble, because it states the purposes for establishing the Constitution. The reason impeachment and removal are provided for in the Constitution is to ensure that the purposes stated in the preamble are accomplished. The designations Preamble, and Legislative, Executive and Judicial after Article One, Article Two and Article Three are not part of the text of the Constitution, they are to indicate the subject of each Article. The dates following the Amendments indicate when each became effective. I have put in italics the passages of the Constitution after the preamble that seem to be left out of most discussions on impeachment, removal and so forth. These will receive special attention later. Although Amendment XXV isn’t in italics, it will be briefly commented on later.

One comment before continuing: although I think it is a good idea for you to read all the Constitutional passages once, without commentary, before considering the analysis, if you disagree you can skip ahead to the "Beliefs and Theories..." heading on page 70.

Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article One, Legislative:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. (Section 2)

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Section 2)

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. (Section 5)

The Senators and Representatives...shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. (Section 6)

No Bill of Attainder or ex post facto Law shall be passed. (Section 9)

Article Two, Executive:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (Section 1)

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. (Section 4)

Article Three, Judiciary:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour... (Section 1)

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made... (Section 2)

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury... (Section 2)

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. (Section 3)

Amendment V (December 15, 1791):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor...for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;...

Amendment VI (December 15, 1791):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...

Amendment XXV (February 10, 1967):

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Beliefs and theories regarding removal by a Senate impeachment trial, and Judicial review

I think the primary concept of impeachment and removal held by most Americans, and the areas of general agreement among those holding opinions, can be summarized for our purposes in one paragraph. Conventional wisdom holds impeachment is fundamentally a two step process. In step one, the House of Representatives impeaches a person, for "Treason, Bribery, or other high Crimes and Misdemeanors." In step two, the Senate is required to conduct some kind of a reasonable impeachment trial, although the Senate can limit how extensive a given impeachment trial will be. Removal from office of an impeached person can only be effected by means of a conviction in such a Senate impeachment trial. The question of what is, or is not an impeachable offense allows some room for debate. Some people think that the idea of "grounds for impeachment" is a concept that lends itself to a more or less explicit, and more or less comprehensive definition. In other words: the House of Representatives could debate and vote on a "definition" of what is impeachable and what is not impeachable. Finally, it is widely accepted both that some offenses are not serious enough to warrant impeachment, and that some offenses are serious enough even though they may involve no crime that could be tried in a judicial court.

Regarding theories about grounds for impeachment, while specific Congresses and specific House Judiciary Committees have recorded views and positions on the question of what is impeachable, no such comprehensive definition has been attempted. It seems highly unlikely that the House of Representatives of any one session of Congress could pass any such definition that would be irreversibly binding on future sessions of Congress. A House of Representatives in a future session could simply amend or rewrite the definition. In general, in a House impeachment proceeding, members are free to point to anything in the past as precedent by way of example or principle, and to argue why they think a specific fact situation is, or is not, "Treason, Bribery, or other high Crimes and Misdemeanors."

Regarding a possible Supreme Court review of a Senate impeachment conviction, in the only case where an impeachment of a Federal Judge was appealed to the supreme Court, the case reached the Court, and the Senate’s conviction was allowed to stand based on the majority opinion of the Court, written by Chief Justice Rehnquist, that impeachment is a "political question" and there is no Constitutional grant of authority to the judiciary to review the way the Senate conducted an impeachment trial [1] (see p. 96-7 for further discussion of grounds). It is conceivable that a future supreme Court could enter into an impeachment dispute, if for example, the grounds of "Treason, Bribery, or other high crimes and Misdemeanors" were blatantly ignored by the House. It appears that if both the House and the Senate act in reasonable ways to follow the Constitutional provisions regarding grounds, and the basic requirements of a trial, that the supreme Court would not consider a review of the Senate’s verdict.

The thesis of this book takes issue with two of the widely held views stated above. First, if impeachment is grounded in a criminal violation of Federal statute, the Senate is one venue for effecting removal from office, but conviction in a Federal Judiciary criminal court is a second venue for effecting removal from office. Second, based partly on the availability of two venues for removal from office for impeachments based on criminal Federal statutory violations, the Senate has no obligation to conduct an impeachment trial. The Senate can simply decline to proceed with an impeachment trial. The Senate can delay proceeding for an indefinite period of time, and this delay may or may not be for the reason of allowing a Judiciary trial to proceed. Nothing in the Constitution suggests any way for the House or the Courts to dictate the Senate’s schedule. In short, while there may be a public demand for the Senate to proceed with some kind of a trial in some cases, it doesn’t seem the Senate is compelled by the Constitution to do so. The Senate and the Judiciary have the independent power to conduct two trials at the same time, an impeachment trial in the Senate, and a Judiciary trial in a Court. These two different kinds of trials can both proceed, or not proceed, independently, as the Senate and the Judiciary see fit.

Who should serve? Other ways of removal for Presidents, Civil Officers and Judges

In discussions about impeachment, the question is almost never enlarged to a view of all the Constitutional options: impeachment, removal by other means, resignation, and temporary or permanent inability to serve. These are all parts of one big question: who should serve? Resignation is sometimes suggested in impeachment discussions, and Nixon obviously fixed this in everyone’s mind as an option. However, the option of Constitutional temporary or permanent removal in other ways than by impeachment is probably unknown to almost everyone. Specifically, discussion seldom is heard regarding the Constitutional option provided by Amendment XXV, where the vice-President can temporarily serve as President while the President is unable to serve. Such an inability can be because of serious, unresolved allegations that undermine public confidence. Let’s first examine each of these other removal and inability issues separately, and then try to view them together.

Professor Berger sees a possible impeachment alternative for removal of Judges: a power of the Judiciary to independently remove Federal judges, based on the Constitution’s provision that the length of their term is not for life, but "during good Behavior." Berger asks: "Did the Framers require that the wheels of a great nation must grind to a halt so that Congress, and Congress alone, could oust a venal judge?" [2] Berger identifies a specific English legal procedure, the writ of scire facias, as something that was used in England for judicial removal of judges, based on a violation of a judge’s appointment for good behavior. [3] Regarding removal of English judges: Berger writes: "...they were appointed ‘at pleasure’ and could be unceremoniously removed..." [4] Our Constitutional provision that U.S. Federal judges hold office "during good Behavior" is a protection that most English judges did not enjoy. The "during good behavior" provision is a check on the power of the other two branches, to protect the Judiciary as an independent branch of our government. Berger’s book was published in 1973, the year Watergate became a major public scandal. His book shows extensive scholarship. I think it’s fair to suggest that the questions Berger examined were all known to be both topical and open to debate long before Watergate. Berger’s thinking on judicial removal has no direct bearing on Executive officers for two reasons, their term is limited by periodic elections, and their term is not specified to be "during good behavior." But unfolding events sometimes produce new Constitutional questions. We can and should view Berger’s writing on removal "of judges by judges" [5] as a kind of academic precedent for this idea — when the Constitution seems to require an unreasonable tradeoff, such as "rule of law" vs. "government shut down", it’s time for everyone, Constitutional scholars included, to start carefully re-examining our Constitution to see if it has provisions and terms we haven’t yet fully understood. The Constitution doesn’t change except by the high hurdle of amendment. However, we may find the Constitutional Convention anticipated possibilities that have not yet happened in our nation’s history.

Berger considers two other removal issues; removal of appointed civil officers such as cabinet members, and removal for insanity, or inability. Although today we accept the idea that all executive branch officers including the cabinet can be fired by the President, it was an open question for the members of the first Congress, who concluded the President can fire executive officers. President Johnson’s impeachment just after the Civil war turned on his claim to be able to remove his Secretary of War, even though the removal appeared to violate a recent law of Congress. Johnson took the position that a law of Congress intended to restrict his power to fire executive officers was unconstitutional. Regarding removal for grounds such as insanity, Berger argues that this can be done for judges without recourse to impeachment. [6] Berger also suggests that for at least some cases of disability of the President, the Founders contemplated a removal process other than impeachment. [7] However, he doesn’t develop this question, and appears not to consider whether this other removal process may include grounds for removal other than disability, and in what way, if any, it may be related to impeachment provisions.

Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.

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