SeeDisk

Impeachment: A New Constitutional Theory

By: Robert S. Carney Jr.

3/6/00

Impeachment is still a touchy subject. If you don't want to read this, no permission is needed. However, this article isn't a rehash -- it introduces for your consideration a new Constitutional theory about impeachment. This new theory establishes both a higher standard for service as a Federal civil Officer (Presidents included), and a new way that Congress and the Judiciary can work together to uphold this higher standard.

The nub of this new Constitutional theory is rooted in this section of our Constitution: "The President, vice-President and all other 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." Simply put, this passage establishes that any impeached Federal civil Officer, including the President, is automatically removed from office as a consequence of conviction in a Judiciary criminal trial. Following House impeachment, there are two trial venues -- two kinds of trials -- that can cause removal from office.

Both the language and structure of our Constitution, and the 1787 Constitutional Convention proceedings, show clearly that a Judicial trial venue for removal from office on House impeachment is a deliberate, intended provision of our Constitution. For most of the Convention's proceedings, impeachment trials were assigned to the Judiciary. On September 4th, about two weeks before the signing, language was presented to the Convention that transferred impeachment trials to the Senate. The draft language stated: "...removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for...". On September 8th, James Madison, our fourth President, and known as the "Father of the Constitution", introduced a motion to delete the words "by the Senate". The motion failed. On the same day Mr. Madison was appointed to a five-person committee that produced the final draft Constitution. When the final draft emerged, the words "by the Senate" were deleted. This deletion, together with several other rearrangements and re-wordings, show the committee had a clear intent to provide two venues, for two kinds of trials, 1) a Senate impeachment trial, and 2) a Judiciary criminal trial, each of which can independently cause removal from office of a person impeached by the House. The Convention's assent to the committee's changes during four full days of concluding debate shows the Convention's intent.

Let's briefly consider both the Nixon and Clinton impeachment proceedings in light of this new Constitutional theory.

The Nixon impeachment proceeding is the root of an unfortunate, underlying "expectation gap" between the Clinton administration and the American People. The 1974 House Judiciary Committee disapproved by 12-26 an Impeachment Article against President Nixon based on alleged tax evasion. From Congressional Quarterly's book Impeachable Offenses: "...a majority of the committee, including a number of Democrats, believed that Congress could only impeach for actions against the government and against the political system - in a sense 'public' crimes - and that while Nixon might be guilty of the felony of tax evasion or misuse of government funds, these were personal and private crimes, not crimes against the Constitution or the nation."

The Clintons have gone through their entire public lives with this understanding: "personal and private crimes" are not impeachable. Until the recent Clinton impeachment proceeding, most Americans thought otherwise. The cumbersome and disruptive nature of a Senate impeachment trial, as seen in the recent Clinton impeachment proceeding, became an important consideration in a sad, reluctant assent by many Americans to the idea that some "personal and private crimes" may not be impeachable.

One major consequence of this new theory is that Constitutionally there is no such thing as "personal and private crimes". This whole idea, rooted in the Nixon impeachment proceeding, and a tragic flaw in the entire public career of the Clintons, is simply wrong.

I have written a book elaborating this new Constitutional theory, showing in detail how the Committee and the Convention placed in the Constitution the provision for two venues for removal from office. The book explores many consequences and implications of this theory. Because the theory addresses removal for all civil Officers, one fundamental implication is this: the power of the House to impeach and send a Case of Impeachment to Judiciary trial, gives Congress, and specifically the House, a far greater oversight authority over the entire executive branch than we have been aware of. The text of my new book (except two pages of charts) is available for you to read, at: www.bobcarneyjournal.com.

Home Page