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Commentary

Commentary

3.1

To summarize, the word “sole” in Article I section 3 has two functions. First, regarding the legislature, in the two-phase process of impeachment per se the House has no power when the Senate's trial phase is proceeding. Second, of two kinds of trials (impeachment and criminal) it assigns one kind of trial as an exclusive power of the Senate, as different and distinct from a second kind of trial which falls within the judicial power of Article III, and which can include criminal trials in “Cases of Impeachment.”

We can now move towards concluding our analysis of the operation of impeachment and impeachment-related provisions per se, by considering a kind of “Ptolemaic question”: why does the specification of grounds for impeachment, which we have seen to be clearly a legislative power, appear to wander off into Article II (executive), when we would most reasonably expect to see these grounds in Article I (legislative) if in fact (as the conventional theory argues) these grounds are to apply for all cases of impeachment? The answer to this question will demonstrate that the conventional understanding of impeachment is not just cumbersome and unwieldy as a practical matter -- everyone knows that – but it is also unreasonable to maintain in the face of a theory that has both better explanatory and analytical power, and that operates in a more practical and useful way.

The crucial underlying issue is not abstract or theoretical. It is a practical, real question: one that those who brought forth the constitution faced, and one that we face today. Under what set of circumstances should removal from office of people currently exercising executive power be required?

For convenience, here again is Article II, Section 4:

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.

The limitations provided for in this passage concern grounds and scope. As we have noted, in Article I (legislative), there is no limitation on either the grounds for impeachment per se, (it can be for any reason) or the scope of impeachment per se (anyone can be impeached).

Regarding scope, this Article II passage applies only to a small group of people: civil officers of the United States. These people are part of the executive branch.

The circumstances that require removal from office include, first, that two events must have occurred: a) “Impeachment for” (a power of the House), and b) “Conviction of” (in either of two trial venues, a decriminalized Senate impeachment trial, or a Judiciary criminal trial). If and only if these two events have occurred, then removal from office is required if and only if the grounds for impeachment (and thus the basis for conviction) are: “Treason, Bribery, or other high crimes and misdemeanors.”

The fact that all the grounds specified are criminal is further evidence that the judicial criminal trial venue is one of two trial venues intended to cause removal from office of impeached persons.

This passage is the constitution's answer to our question: Under what set of circumstances should removal from office of people currently exercising executive power be required? The effect of the passage is, first, to establish a minimum standard of conduct for executive office holders, (that they not be guilty of a specified set of criminal offenses), and, second, to establish that whenever the House impeaches a civil officer on this set of criminal grounds, either of the other branches of the government can then act independently to remove the civil office holder.

The location of this passage in Article II is structurally important. This passage is not in Article II as the result of “Ptolemaic wandering.” Rather, both its location in Article II and its exclusive effect on executive officers indicate, first, that it is not in any way a restriction on any power of the other two independent branches of government per se, but simply indicates a required consequence, under a specified set of circumstances, of the independent actions of the other two branches.

One further point should be made regarding a legitimate question: who is to decide, and how is it to be decided, what specific kinds of wrongdoing fall within the scope of the Article II grounds, especially the phrase “or other high Crimes and Misdemeanors?” We should note an additional constitutional passage in this regard, from Article II, Section 1 (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 the 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. .

The key phrase here is “the Case of Removal,” which is one of several circumstances that “Congress may by Law provide for.” In the context of this constitutional theory, this passage provides that Congress can pass a law specifying a set of crimes that are designated as “crimes of removal from office,” and can thus establish in advance under what circumstances a House impeachment can be forwarded to the Judiciary. Thus, we see that this passage lends further structural support to the constitutional theory. Further research is required in this area. It should also be noted Amendment XXV makes new provisions bearing on death and inability.

Initial Summary: Consequences and Implications of this Constitutional theory

Two major consequences follow from the impeachment aspects of this constitutional theory. In the context of current events, let's consider the least important one first. If a federal office holder is guilty of a criminal offense, it is not necessary to shut down half of Congress for weeks or months as the Senate conducts an ungainly trial that turns on issues of criminal law. There are few federal civil officers, many qualified candidates, and a strong national interest in having civil officers who are demonstrably not criminals with reference to the Article II short list. Consider which is it easier and more prudent to replace: an individual federal civil officers holder, or a world-leading superpower with a two hundred year tradition of political freedom – offering the hope and the prospect that this freedom will be both preserved and extended. Unless circumstances demand immediate action, the case of a civil office holder impeached on criminal grounds can and should be presented to a Judiciary court, while the rest of the government does what it was elected and established to do. If the outcome of such a Judicial trial is a “conviction”, then removal from office is automatic – and that's that.

This constitutional theory is illuminating regarding the expectation we should have of federal civil office holders. By accepting such positions of honor, these people are being asked to be so circumspect in their actions that they can give no possible offense such that might trigger this powerful constitutional machinery. Civil office holders are well advised to behave themselves, and to make every effort to get along with everyone. Isn't that we we want?

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