Chapter Three -- Part D A New Constitutional Theory Removal from Office is an Automatic Result of Judicial Conviction in a Criminal Trial Commenced on Presentment of House Articles of Impeachment |
Removal from office by Judicial Conviction of persons impeached for criminal violation of a Statute
Our focus here will be on the most familiar Constitutional provisions regarding impeachment, followed by arguments for the theory. We will first review the three familiar Constitutional texts.
Article One, Legislative: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. (Section 2)
Article One, Legislative: 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)
Article Two, Executive: 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)
Analysis
The House is designated in Article One Legislative, as having the sole Power of Impeachment. No grounds for impeachment are specified in Article I regarding the House’s "...sole power of Impeachment." From this fact, it appears that the House, often referred to as "the People’s House", the legislative body most responsive to the electorate, can impeach for any reason it deems sufficient. If the House impeaches on grounds of a criminal violation of a statute, there are consequences to this kind of an impeachment that are absent when the impeachment is not rooted in one or more specific allegations of a criminal violation of Federal law. The main point here is that the simple power of the House to impeach anyone, for any reason, appears to be unlimited in and of itself.
The Senate is designated in Article One Legislative as having the sole Power to hold a specialized kind of trial, called an Impeachment trial. The Judgment of a Senate Impeachment trial extends only to removal from office and disqualification from future office. This specialized kind of trial is specifically not a criminal trial, for two reasons — conviction does not establish criminal guilt, and all forms of punishment typically associated with criminal conviction including imprisonment and the death penalty, are specifically excluded as consequences of conviction. Although there are some rudimentary due process provisions, a Senate impeachment trial appears to have few of the due process requirements of a criminal trial. As just one example of this absence of specific due process provisions and restrictions, there appears to be no prohibition against compelling a President to testify in a Senate impeachment trial. Article I specifically protects free speech of Members of Congress during proceedings of Congress ("shall not be questioned in any other Place.") There is no equivalent restriction anywhere in the Constitution restricting the ability of Congress to question the President, including in the venue of a Senate impeachment trial. As with the House, and it’s "...sole Power of Impeachment", no grounds for impeachment are specified in Article One regarding the Senate’s power to try impeachments. In summary, the Senate is delegated specific power to try for only the purposes of removing from office and/or disqualification from holding any future office, any impeached person, regardless of the grounds for the Impeachment. Once the House has passed Articles of Impeachment, the Senate appears to have total discretion as to how to use its power to try, or not try, the Impeachment. The Senate can simply decline to try an Impeachment, or can delay an impeachment trial indefinitely. The Constitution does not require the Senate to conduct a trial.
Now let’s move to the section of our Constitution where most discussion started and ended in the recent Clinton impeachment proceeding.
Article Two Executive specifies: "The President...shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Regarding "...Impeachment for..." this clearly refers to Impeachment by the House, since the House has the sole power of Impeachment. What about the phrase "...Conviction of,..."? It has been commonly understood that "Conviction" in this section refers to conviction by the Senate. As we have already seen, an earlier version of this phrase debated at the Constitutional Convention read "...conviction by the Senate...". Although a motion by Madison to delete the words "by the Senate" failed, when the final unamended Constitution emerged, the words "by the Senate", for whatever reason, were absent. An oversight? I have to say, that seems to be the least likely explanation. Consider also that this passage is the only impeachment passage in the Constitution that identifies grounds for impeachment. These grounds are all "...Crimes and Misdemeanors..." For all of the specified crimes and misdemeanors, under the Constitution an impeached person is subject to Conviction by a Judiciary criminal court. Finally, consider this: if a provision primarily regarding removal of executive civil officers specifies a process that requires participation by both of the other two independent branches, isn’t the executive article the logical place for such a provision? By contrast, if a passage grants all removal power to the Legislative branch, with no participation of any other branch, isn’t the Legislative article the logical place for such a passage?
"Parsing words" has gotten a bad reputation recently, but we must not conclude that because some people appear to misuse their analytical powers, therefore any analytical technique is bad. It is crucial to analyze as clearly as we can what this Article Two Executive passage is saying. To better understand what convicting entity the word "Conviction" refers to in this section, let’s focus in on what branches have what specific delegated powers with respect to this section of Article Two Executive:
1. The House has the sole power of Impeachment, and can exercise this power for any reason.
2. The Senate has the sole power to try any and all Cases of Impeachment as Impeachment cases, that is as non-criminal cases where the only issues to be decided are: removal and disqualification.
3. The Judiciary has the sole power to try all criminal cases as criminal cases, that is as cases where the issues to be decided are criminal conviction and sentencing.
The result of a Senate Impeachment Trial is fully specified in Article One Legislative: "Judgment... shall not extend further than to removal from Office, and disqualification..." This Legislative result does not have to be restated in Article Two Executive. Consider also that "...Conviction of..." "...Crimes and misdemeanors..." is the routine Constitutional result of a Judiciary criminal trial proceeding. These facts point us to the nub of the Constitutional theory of this book:
The Impeachment section in Article Two Executive does not refer to a person who has been convicted in a Senate Impeachment trial. The phrase "...shall be removed from Office..." of Article Two Executive specifies a consequence for any President, vice-President, or civil Officer who has been both impeached by the House on grounds of a criminal violation of a Federal statute, and convicted of a "high Crime" or "Misdemeanor" by a Judiciary court, in a trial commencing on Presentment of the House of Representatives’ Articles of Impeachment.
Therefore, a President impeached on grounds of a criminal violation of a Federal statute can be removed from office in two ways. First: conviction by a two thirds vote of a Senate impeachment trial automatically removes the President from office. Second: any President impeached on criminal grounds who is also convicted in a Judiciary criminal trial in a "Case of Impeachment", of "Treason, Bribery, or other high Crimes and Misdemeanors" is automatically and immediately removed from office when all appeals have been exhausted. If the supreme Court is designated as having original jurisdiction for a criminal trial in a Case of Impeachment, removal on conviction would be immediate, with no question of appeal.
For Impeachment on criminal grounds "two ways out" is Constitutionally right, and rests on sound principles
We have considered the legal argument for this Constitutional theory of "two ways out of office" for a President, vice-President or civil Officer impeached on grounds of a criminal violation of a statute. What are the common sense consequences of this theory? I hope to show briefly that there are sound, common sense principles underlying this checks-and-balances system of two ways of removing from office persons who are Impeached for criminal violations of a Federal statute, and that the soundness of these underlying principles supports the theory. Let’s return to our starting consideration of how the recent impeachment proceeding seems to fly in the face of common sense.
First, consider the rule of law. The Constitution delegates to the Judicial branch power to ensure that in the case of a President impeached on grounds of violating a Federal criminal statute, the Judiciary can conduct a criminal trial, probably without a jury, giving consideration to questions of equity. If the final result is a conviction, the impeached and convicted President is removed from office. It makes common sense that a trial based on criminal violations of a Federal statute should be conducted by a Judiciary court. It also makes common sense that if criminal violation of a Federal statute is at issue, the threshold for removal of a President, Vice President or civil Officer should be lower than if the impeachment is not based on such grounds for this simple reason: we can’t establish the principle that the President, or anyone in America, is above the law. Our Constitution safeguards the rule of law by providing that House Impeachment on grounds of a criminal violation of a statute, together with Judiciary conviction in a criminal trial resulting from Presentment of the House Articles of Impeachment, are sufficient to remove from office a person guilty of such criminal misconduct. Assuming either that the Sixth Amendment is operative excepting the right to trial by jury, or is inoperative but that Congress provides some equivalent due process rules for Cases of Impeachment, the accused officeholder has all the safeguards of judicial process. These safeguards include the presumption of innocence until proven guilty. The officeholder has the right of appeal up to and including the supreme Court, if the original trial is not conducted by the supreme Court.
The Judicial branch is fully and uniquely capable of determining whether an office holder is guilty of a criminal violation of a Federal statute. The House of Representatives is fully and uniquely capable of deciding a question with a political aspect: whether stipulated criminal statutory violations are serious enough to remove the accused from office. Executive branch office holders are as secure as they can be against unreasonable and unfair removal, because if they are impeached for criminal violations of a statute, either a Senate supermajority or the verdict of two independent branches of government is required to remove them.
Second, consider the disruption caused by preoccupying elements of all three branches of government for an extended period while a legislative body attempts to function as a criminal court. An impeachment trial is a specialized kind of trial, with the sole object of deciding the issues of removal and disqualification. The Senate is fully capable of doing this swiftly and well, whether or not there is a criminal statutory violation, if the underlying fact situation and actions of the impeached person obviously demand removal. However, if criminal violation of a Federal statute is the issue, an attempt by the Senate to function as a criminal court is a misuse of the institutions of our government. Asking the Senate to attempt to do this is unfair to everyone concerned: the American people, the accused, the Senate, the Chief Justice, and the House. The American people are justifiably very reluctant to see this kind of disruption of the government.
Finally, consider the difference between criminal violation of a Federal statute and other grounds that may technically violate no statute, but obviously violate the spirit of the law. The Constitution permits impeachments of Presidents for wrongdoing that is both uniquely possible to holders of high office, and not specifically prohibited by any statute. In an impeachment for other than criminal Federal statutory violations, the high hurdle is the requirement of a two thirds Senate majority as the only way to remove the President from office. The absence of any Constitutional restriction on the grounds for impeachment and Senate conviction is a kind of political pressure release valve. To prevent this pressure release valve from opening, a President must remain acceptable as our nation’s leader to at least a sizable minority of the electorate and the Congress, by not visibly, obviously, abusing the office. Is this too much to ask? Any President, including the occasional unelected President, must have at least some sense of both personal and Constitutional self restraint to govern successfully.
The President and civil Officers are seen in the Constitution to be assigned the task and delegated the power to lawfully carry out the work of the Federal government on behalf of the American people. It is an honor to have the opportunity to do this. If this Constitutional theory is correct, it suggests the Founders had higher expectations of the holders of high Federal office than of the average citizen: holders of high Federal office can be impeached by a majority House vote, and if the impeachment is for criminal Federal statutory violations, they apparently lose their legal right to a jury trial in the interest of a prompt resolution of their legal case to avoid disrupting the function of our government. Is it unreasonable to hold this high a standard for people who seek to serve as President, vice-President, or as civil Officers?
This chapter commenced with a characterization of the recent Clinton impeachment proceeding as an apparently unsolvable dilemma. Either we uphold the rule of law with a Senate trial of an alleged criminal violation of a Federal statute, with all the attendant delay, or we refuse to accept this enormous disruption, and acquiesce in the idea that someone can serve as President who may be a felon. It bears repeating: this is a lose-lose proposition. I hope this chapter has demonstrated that the Constitutional Convention never intended for the American people to have to face such a fundamentally unacceptable choice. A President’s criminal violation of a Federal statute need not preoccupy all three branches of government for months. If there is a strong basis for suspecting the President is engaging in criminal activity, or did so in the past, our Constitution provides a way to resolve this issue, and to remove the President from office, without a massive disruption of the government. The vice-President can serve as acting President if the uncertainty of the President’s guilt or innocence becomes disruptive to the functioning of our government. The fact that we elect our President is important to maintain the assent of the American people to our government. Holding Presidents to high standards of behavior is equally important. Our Constitution provides that there need not be any unresolvable conflicts between any of these common sense requirements.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.