Impeachment: A Citizen's Guide

by Cass R. Sunstein

To make things more complicated, suppose that the political opponent has, in fact, violated tax laws, and the president is aware of that—but his desire to punish a political opponent is really what motivates him to exercise what he sees as his authority over the Internal Revenue Service. That’s a bit trickier, but in the end, it’s not all that hard. It’s a misdemeanor, in the constitutional sense, for the president to use his authority to single out political opponents for law enforcement activity. Use of official power to punish political opponents is near the core of the category of impeachable offenses.

According to an old story, Thomas Jefferson, always an enthusiastic fan of self-government, questioned George Washington for having supported the idea of two legislative chambers, with the Senate potentially serving as a brake on the judgments of We the People. Washington’s response was simple: “Why did you just now pour that coffee into your saucer, before drinking?” “To cool it,” answered Jefferson, “my throat is not made of brass.” “Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”3 For the whole process of impeachment and removal, the senatorial saucer cools it.

As John Dewey put it, “The United States are not yet made; they are not a finished fact to be categorically assessed.”

In the eighteenth century or the twenty-first, no large nation can flourish without some kind of executive authority. For Hamilton’s reasons, that authority needs to be powerful. At the same time, the executive is, by far, the most dangerous of the three branches, because it can do so much, for better or for ill, in such a short time.4 As the framing generation saw it, there are inextricable links among the creation of a powerful presidency, the four-year term, electoral control, and the power of impeachment. You can’t allow the first without the latter three.

In an echo of Franklin’s plea, Supreme Court Justice Louis Brandeis, attempting to vindicate the freedom of speech, warned that “the greatest menace to freedom is an inert people.”

The final version of the Declaration, adopted in 1776, reads a lot like articles of impeachment. That is no accident. The idea of impeachment played a major role in the decades that led to the fight for independence. The idea became a defining part of republicanism, American-style—and part and parcel of the attack on the claims of monarchs and monarchy, and an insistence on the equal dignity of human beings.

In the eighteenth century, a lot of people put their lives on the line for those ideals. In the founding document, they turned one of their ideals into a principle, which deserves to be put in bold letters: If a president has committed a clearly impeachable offense, the House of Representatives is obliged to impeach him—even if the process does not turn out to be “bipartisan,” and even if it is “divisive.”