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Commentary

Commentary

1.1

As the torture and abuse of Iraqi prisoners has come to light, America needs to be able to quickly and decisively hold those who serve in our government accountable. When the top leaders of our government either take action, or engineer an environment, that results in what can be seen as war crimes, we are on the road to becoming morally indistinguishable from the terrorists. We the American people must turn back.

Fortunately, the leaders and people who established our constitution had a realistic view of human nature. The founding fathers were painfully aware of the consequent inherent danger of entrusting power to fallible and corruptible people, who of course must always be the agents of governments.

A careful study of our constitution, and of the debates and writing that led us to it, shows that the issues of impeachment and removal from office are actually far more deeply woven into the constitution's fabric that our current popular understanding suggests. This paper outlines a new constitutional theory regarding the extent of these provisions.

The nub of our current understanding of impeachment, removal and oversight

Only the House can impeach, and removal from office of an impeached person can occur only after a Senate trial, which must be on essentially criminal grounds of “treason, bribery, or other high crimes and misdemeanors”. According to our current understanding, the president and other civil officers cannot be impeached and removed because they are incompetent, or for anything short of criminal responsibility for disasters like the widespread torture and abuse of the Iraqi prisoners. This interpretation has certainly been shaped in part by the perception that the need for a stable government, and the partisan environment in which public events unfold, together point us to the need to protect both civil officers and the national interest against the potential adverse consequences of an unending series of politicized impeachment proceedings.

The “constitution code”

There are two fundamental problems with this current popular understanding of impeachment and removal from office. First, in our recent history it has proved sadly inadequate as a truly effective check against misuse of government power. In effect, we seem to have agreed that there is a necessary trade-off between a) government stability, and b) a built-in toleration for some unspecified level of “private crimes,” which civil officers can commit if “it's not that bad” and if there is “plausible deniability.” As a consequence, America looks away from the news, and towards phony reality shows and extreme makeovers.

Second, there are structural puzzles to our current understanding. As one example, consider that a primary structural feature of the constitution is its organization into articles, with the first three (about 80% of the whole original constitution) concerning the three main branches of government: legislative, executive, and judicial respectively. Given this structure, if impeachment is the sole power of the legislative branch, why are provisions for it scattered like wandering planets among all three articles? Why would the constitutional convention, knowing about Copernicus as they did, come up with what now seems to be a Ptolemaic impeachment system?

Here is the bare frame of an alternative answer to the conventional understanding: impeachment is an important element, but not the whole, of a system of provisions for removal from office that definitely revolves around a known central idea: checks and balances, but that is both more structurally rooted and more broadly conceived than we have realized.

Let's proceed, step by step, to fill in this frame and see how this actually works. We will examine the constitution's actual impeachment provisions and restrictions, together with background information concerning how these provisions were arrived at and organized.

Beginning with Article I (legislative), we find Article I, Section 2 (last paragraph) states:

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

Note that there is no restriction or definition of any kind regarding the grounds for the House's “sole Power of Impeachment.” Constitutionally, the House can impeach anyone, for any reason they believe is sufficient to warrant removal from office.

Article I, Section 3 (last two paragraphs) states:

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 Consent of two thirds of the Members present.

Judgment 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.

The Senate has the sole power to conduct a specialized kind of trial called an an impeachment trial, again with no grounds for impeachment specified, but with consequences limited to removal from office and disqualification from holding office in the future.

Some common structural threads are already apparent in Article I. First, no restriction on grounds is mentioned for either the House or the Senate. Second, the phrase “Sole power” appears twice, once for the House and once for the Senate. The impeachment process is analogous both to the impeachment procedure used in England, and to the two-phase judicial process for criminal cases of indictment and trial. The twice-repeated phrase “Sole power” can in this respect be seen to make it clear both that impeachment is a distinct, two-phase process, and that neither legislative body has power to interfere in the proceeding of the other body when their phase is being conducted. Finally, while the two-phase process is analogous to criminal indictment and trial, the restrictions in section 3 make it absolutely clear that the impeachment process per se is decriminalized. No criminal punishment can follow directly from the impeachment actions of the legislative branch alone. However, specific provision is made that criminal punishment can result separately from action of the judicial branch, taken for the same circumstances that resulted in a Senate impeachment trial. In England impeachment was not decriminalized – this was an American innovation of pre-revolutionary war state legislative bodies.

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