Impeachment: A Citizen's Guide

by Cass R. Sunstein

He told me a story about meeting a member of British royalty, Prince Philip, who asked him, immediately after shaking hands, “Would you like to hear my opinion of lawyers?” Marshall shot back, “Would you like to hear my opinion of princes?”

“Of Equality—as if it harm’d me, giving others the same chances and rights as myself—as if it were not indispensable to my own rights that others possess the same.”14

As practice unfolded, “high Crimes and Misdemeanors” could mean serious crimes, but it could also mean serious offenses that were not in technical violation of criminal law. Egregious misconduct, as in the form of committing the nation to “an ignominious treaty,” could count as a legitimate basis for impeachment in England.8

As always, Hamilton is a terrific place to start. In Federalist No. 65, he explained that the “subjects” of impeachment involve “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”3

“High crimes and misdemeanors” are abuses or violations of what the public is entitled to expect.

No crime is necessary. If the president is acting in an “atrocious” way that harms most of the states, he is committing a “misdemeanor,” even if no violation of the law is involved.

If the president uses the pardon power in a corrupt way, by pardoning crimes that he has himself advised (and thus sheltering the wrongdoer), impeachment is the remedy.

Some offenses that are not crimes are nonetheless impeachable—punishing political enemies, trampling on liberty, deciding to take a year off, systematically lying to Congress and the American people. Such actions count as “high misdemeanors.”

For example, Justice Thurgood Marshall thought it entirely clear that the meaning of the Constitution was not frozen in time. As he wrote in 1987, “I plan to celebrate the bicentennial of the Constitution as a living document.”1 He didn’t think that we should answer constitutional questions by asking what people thought at the time of ratification.

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. . . . [T]he dead have no rights.4

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.6

In Dworkin’s view, we have an obligation to be faithful to the Constitution’s text. If we are not, we are not interpreting it at all. But when it is vague or ambiguous, we should not try to be historians and attempt to figure out what the founding generation thought. Instead we should think, for ourselves, about what makes the constitutional provision as good as it can be—on moral grounds.

As always, Hamilton was prescient, noting in Federalist No. 65 that in many cases, the trial of impeachments in the Senate “will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”6

The president’s acute sense of mission and his own rectitude, combined with his fear and loathing of what his (often hate-filled and in some cases nutty) enemies stood for and might do, led to a White House culture that produced, by degrees, a series of measures that (I like to think) would have appalled and horrified Nixon himself at the start of his presidency.

If a president uses the apparatus of government in an unlawful way, to compromise democratic processes and to invade constitutional rights, we come to the heart of what the impeachment provision is all about.

In the two actual impeachments of American presidents, no impeachable offense was committed.

Decades after it happened, the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense. But he gave his political opponents an opening, and they were willing to work really hard.

Even in the midst of war, a sustained pattern of lying to the American public can be counted as a misdemeanor—an abuse of public trust with respect to a matter central to governance. Lying to Americans about extramarital affairs is bad. But lying to Americans about the rationale for a war, and for putting human lives on the line, is impeachable.

Recall that during the founding era, lying to the Senate was singled out as a legitimate basis for impeachment.)

At the other end of the continuum, the vice president and the cabinet are authorized to declare the president “unable” for whatever reasons they like.

Terrible judgment, laziness, incompetence, and even impeachable acts do not justify invocation of the Twenty-Fifth Amendment.

The real risk is not that the Twenty-Fifth Amendment will be invoked when it shouldn’t, but that it won’t be invoked when it should.

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

(By the way, the rise of political parties followed ratification of the Constitution; the framers did not anticipate it.)

“And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

Freedom of speech did not flower until the 1960s.

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

We hold these truths to be sacred & undeniable; all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying it’s foundation on such principles & organising it’s powers in such form, as to them shall seem most likely to effect their safety & happiness.

One of the distinctive features of the report, taken as a whole, is its care and caution. It does not shout. In that respect, it is a remarkable contrast from the most recent historical analogue, which is Judge Kenneth Starr’s lengthy report on the investigation of President Bill Clinton.

For Russia to engage in these kinds of actions is not exactly an act of war. But let there be no doubt about it: This was an attack. Russian interference with American democracy is a clear and present danger. It requires sustained attention.

The first, and perhaps the most critical, is that the special counsel “determined not to make a traditional prosecutorial judgment.” The reason is that as a part of the Department of Justice, the special counsel “accepted” the department’s conclusion that under the Constitution, a president cannot be indicted.

Instead he was saying something close to this: “The evidence probably makes out a crime, but because the president cannot be indicted, and because there can’t be a trial, I’m not going to say so.” That, I think, is the solution to the mystery, and the clue to the meaning of those crucial words: “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

Suppose that a president commits a clearly impeachable offense—by, say, committing treason or by using the apparatus of government to violate people’s rights and liberties. Suppose, too, that many members of the president’s party remain intensely loyal to him, thinking, “True, he’s horrible in some ways, but he’s good on a lot of other issues, and anyhow, he’s our guy, the captain of our team.” In those circumstances, the Constitution does not license members of the House of Representatives to refrain from impeachment, on the ground that it would not be “bipartisan” and would “divide the country.”

if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.

Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

This book is a love letter to the United States of America, and for that reason, it was a joy to write.