Impeachment: The Constitutional Problems

Transcription

1 "' Impeachm: The Constitutional Problems Raoul Berger Impeachm, most Americans ay, seems repres a rea mystery, an almost parricial act, be contemplate, if at all, with awe an alarm. It was not always so. Impeachm, sai House Commons 1679, was " chief stitution for preservation governm"; an chief among impeachable fenses was "subversion Constitution." In 1641, House Commons charge that Earl Straffor ha subverte funamal law an trouce an arbitrary an tyrannical governm. By his trial, which merge a bill attaer an resulte his execution, an a series or seveh-cury impeachms Parliam mae misters accountable it rar than Kg an stemme a tie absolutism that swept rest Europe. Thereafter, impeachm fell relative isuse urg eighteh cury because a mistry coul now be pple House Commons on a vote no confience. Our impeachm, moele on that Englan, procees as follows: a committee House Represatives may be structe vestigate rumors or charges executive misconuct. If committee reports that it foun impeachable fenses, it is irecte House prepare articles impeachm, which are analogue accusations contae several counts an ictm a gran jury. Strictly speakg, it is articles that constitute impeachm. The articles, if approve a majority House, are n file with Senate. At that pot, articles are 34 serve Senate on accuse, who is given time with which file an answer charges. At an appote time, Senate convenes as a court. If it is Presi who is beg trie, Chief Justice Supreme Court acts as presig ficer. Evience is subject... Framers... might well have regare impeachm as an outworn, clumsy stitution, not particularly well-suite a tripartite scheme governm protecte separation powers. Why, n, i y aopt it? exclusionary rules applie a court an accuse is permitte his counsel cross-exame witnesses an make argums for acquittal. A vote two-thirs Senars pres is require for conviction. When Framers came raft our Constitution, y might well have regare impeachm as an Raoul Berger is author Impeachm: The Constitutional Problems, which was release, sheer cocience, sprg Now Charles Warren Senior Fellow American Legal Hisry at Harvar Law School, Pressor Berger is wiely consiere nation's leag authority on impeachm. This article origally appeare January, 1974, issue Harper's. out-worn, clumsy stitution, not particularly well-suite a tripartite scheme governm protecte separation powers. Why, n, i y aopt it? The reason lies fact that Founers vivily remembere seveh-cury experience mor country. They remembere absolutist pretensions Stuarts: y were haunte greey expansiveness power; y reae usurpation an tyranny. An so y aopte impeachm as a means isplacg a usurper a Presi who exceee bouns executive's authority. The colonists, after all, regare executive, wors Thomas Corw, as " natural enemy, legislative assembly natural frien liberty." Throughout colonial perio, y ha electe ir own assemblies an truste m as ir own represatives. The governors, on or han, were ten upper-class Englishmen with little unerstang American aspirations, who ha been foiste on colonists Crown. Hence, Congress was given power remove Presi. This power, it must be emphasize, constitutes a eliberate breach octre separation powers, so that no argums rawn from that octre (such as executive privilege) may apply prelimary quiry House or subsequ trial Senate. The Constitution aopts ol English formula: impeachm for an conviction "treason, bribery, or or high crimes an misemeanors. Because "crimes" an "misemean-

2 ors" are familiar terms crimal law, it is temptg conclue that "high crimes an misemeanors" is simply a graniloqu version orary "crimes an misemeanors." Not so. As terms "treason" an "bribery" suggest, se were fenses agast state, political crimes as istguishe from crimes agast person, such as murer. The association "treason, bribery" with "or high crimes an misemeanors" icates that latter also refer fenses a "political" nature. They were punishable Parliam, whereas courts punishe "misemeanors," that is, lesser private wrongs. In short, "high crimes an misemeanors" appears be a phrase confe impeachms, without roots orary English crimal law an which, so far as I coul iscover, ha no relation wher a crimal ictm woul lie particular circumstances.* Certa political crimes treason an bribery, for example were also ictable crimes, but English impeachms i not require an ictable crime. Noneless, English impeachm was crimal because conviction was punishable eath or imprisonm. *The phrase "high crimes an misemeanors" is first met, not an orary crimal proceeg, but impeachm Earl Suffolk At that time re was no such crime as a misemeanor. Lesser crimes were prosecute as "trespasses" well sixteh cury, an only n were trespasses supplante "misemeanors." As "trespass" itself suggests, "misemeanors" erive from private wrongs, what lawyers call rts. Fitzjames Stephen state that "prosecutions for misemeanors are Crown what actions for wrongs are private persons." Although "misemeanors" ere orary crimal law, y i not become criterion parliamary "high misemeanors." Nor i "high misemeanors" f ir way general crimal law. As late as 1757, Blacksne coul say that "first an prcipal [high misemeanor] is malamistration such high ficers, as are public trust an employm." Inepenence Hall Philaelphia -Built

3 In fact, uner English practice, re were a number impeachable fenses that might not even be crimes uner American crimal law. First an foremost was subversion Constitution: for example, usurpation power which Parliam lai claim. Or impeachable fenses were abuse power, neglect uty, corrupt practices that fell short crimes, even givg "ba avice" Kg his misters. Broaly speakg, se cate- The colonists, after all, regare executive, wors Thomas Corw, as " natural enemy, legislative assembly as natural frien liberty." gories outle bounaries "high crimes an misemeanors" at time Constitution was aopte. Let us now turn Philaelphia Article II, Section 4 Constitution provies that " Presi, Vice-Presi an all civil Officers Unite States, shall be remove from Office on Impeachm for, an Conviction, Treason, Bribery, or or high Crimes an Misemeanors." There is goo reason conclue that Framers consciously ivorce impeachm from necessity provg an ictable crimal fense. This is because Article I, Section 3(7) provies that "jugm Cases Impeachm shall not exten furr than removal from Office, an isqualification hol an enjoy any Office... but Party convicte shall neverless be liable an subject Inictm, Trial, Jugm an Punishm, accorg Law." Thus Framers sharply separate removal from fice from crimal punishm ictm an conviction, con- trast English practice, which joe crimal punishm an removal one proceeg. From text Constitution re emerges a leag purpose: partisan passions shoul not sweep an ficer gallows. The startg pot, refore, borrow from Justice Sry, is that impeachm "is not so much esigne punish as secure state agast gross ficial misemeanors." It is prophylactic, esigne remove an unfit ficer from fice, rar than punitive. Two important consierations persuae us unerstan American impeachm noncrimal terms, though it may, course, clue fenses such as bribery an obstruction justice, which are ictable "political" crimes. First, sce Article I contemplates both ictm an impeachm, issue ouble jeopary woul be raise if impeachm were eeme crimal nature. The Fifth Amenm, which emboies a curies-ol guarantee, provies that no person "shall be subject for same fence be twice put jeopary." This means that if a person were icte an convicte he coul not be impeache, or if he By provig that impeachm woul not bar ictm, Framers plaly icate that impeachm was not crimal nature. were impeache he coul not be icte. By provig that impeachm woul not bar ictm, Framers plaly icate that impeachm was not crimal nature. Therefore, crimal punishm may precee or follow impeachm. A secon consieration is Sixth Amenm provision that " all crimal prosecutions, accuse shall enjoy right a speey an public trial an impartial jury." If impeachm be eeme a "crimal prosecution," it is ifficult escape requirem trial jury. Earlier, Article III, Section 2(3) ha expressly exempte impeachm from jury "trial all crimes"; an with that exemption before m, raftsmen Sixth Amenm extene trial jury "all crimal prosecutions" without exception, re exhibitg an tion withraw... ue process... must protect Presi no less than lowliest felon. former exemption. We must conclue eir that Founers felt no nee exempt impeachm from Sixth Amenm because y i not consier it a "crimal prosecution," or that a jury trial is require if impeachm is fact a "crimal proceeg." Elsewhere* I have iscusse problems that arise from Framers' employm crimal termology. I woul only reiterate that if impeachm is ee crimal nature, it must comprehen fenses consiere grouns for impeachm at aoption Constitution. On this score, Senate, which tries impeachms, has on a number occasions foun ficers guilty nonictable fenses, an Senate, at least itially, is left construction "high crimes an misemeanors." It oes not follow that Rep. Geral For was correct when he eclare that an impeachable fense is whatever House an Senate jotly "consier [it] be." Still less can *Impeachm: The Constitutional Problems (Harvar University Press, 1973). 36

4 it be, as Mr. Nixon's n Atrney General Richar Kleienst l Senate, that "you on't nee facts, you on't nee evience" impeach Presi, "all you nee is votes." That woul flout all requirems for ue process, which must protect Presi no less than lowliest felon. The recors Convion make it quite pla that Framers, far from proposg confer illimitable power impeach, tene only confer a limite power. When an early version impeachm for "treason, bribery" came up for iscussion, George Mason move a "malamistration," explag that "treason as efe Constitution will not reach many great an angerous fenses... Attempts subvert Constitution may not be treason as above efe." Mark that. Mason was b on reachg "attempts subvert Constitution." But Maison emurre because "so vague a term [as malamistration] will be equival a tenure urg pleasure Senate." In brief, Maison refuse leave Presi at mercy Senate. Thereupon, Mason suggeste "high crimes an misemeanors," which was aopte without objection. Shortly before, Convion ha rejecte "high misemeanors" anor context because it "ha a technical meang o limite," so that aoption "high crimes an misemeanors" exhibits an t embrace "limite," "technical meang" wors for purposes impeachm. If "high crimes an misemeanors" ha an ascertaable cont at time Constitution was aopte, that cont marks bounaries power. It is no more open Congress ignore those bounaries than it is clue "robbery" uner "bribery" fense, for "robbery" ha a quite iffer common-law connotation. Rec evs are surpassg terest, an it behooves us weigh m traitional common-law terms. It will be recalle that first an foremost impeachable fense was subversion Constitution, funamal law. Ha Mr. Nixon persiste his position that he coul not be compelle courts furnish tapes his conversations, that woul have been a subversion Constitution. That issue may not yet be ea. In wake Mr. Nixon's ismissal Special Prosecur Archibal Cox, an resignations Atrney General Elliot Richarson an Deputy Atrney General William Ruckelshaus, "fire srm," as a White House aie calle it, that blew up across country impelle Presi Nixon, White House counsel, Ha Mr. Nixon persiste his position that he coul not be compelle courts furnish tapes his conversations, that woul have been a subversion Constitution. avise Juge John Sirica, "This Presi oes not efy law.. he will comply full with orers court." Let sober appraisal The Wall Street Journal sum up ferences we must raw from this ev: In obeyg appeals court orer requirg that tapes be submitte Juge Sirica, Presi has ee cee, without a fal Supreme Court test, some privilege withhol formation that he previously claime for Chief Executive. A prece is beg establishe where juges can eman White House evience... The Presi trie protect a presiial claim an lost. The claim may not have been irely vali, but loss is for real. Neverless, urg his press conference on eveng Ocber 26, 1973, Mr. Nixon state, "We will not provie Presiial ocums a special prosecur... if it is a ocum volvg a conversation with Presi. I woul have stan on prciple confiiality." Thus he renews claim, lost before Court Appeals, which he apparly yiele when he avise Juge Sirica that he woul comply with court's orer. "Confiiality," short, still remas at issue. Were an epen prosecur set up Congressional enactm, an were he sist on prouction White House tapes an ocums, a confrontation between Presi an courts woul be replaye. If Mr. Nixon were aga refuse comply with a court orer prouce tapes or ocums, that woul constitute subversion Constitution. Ours is a governm enumerate an limite powers, esigne, wors Founers, "fence" Congress an executive about. To police se limits courts were given power juicial review. On more than one occasion y have eclare Acts Congress, though signe Presi, unconstitutional. Although House Represatives was mae sole juge qualifications its members, Supreme Court hel that exclug Aam Clayn Powell for misappropriation Governm funs, House ha exceee its power, sole qualifications for membership beg age, resience, an citizenship. In short, it is function courts fally terpret Constitution an eterme scope powers conferre on eir Presi or Congress. By what reasong Presi claims be exempte from this juicial 37

5 Constitution, an subject him impeachm authority passes my comprehension. a subversion nimpeachable fense. himself, if he... neglects superi In isobeyg a court orer, an is a clearly check so as Although some twy courts ten ir conuct, Presi woul unerme a cenes." excess ir on st Presi tral pillar Constitution, an have gone aga On March 22, 1973, Mr. Nixon nm, Suimpou issue ion assert war take a long step as yet speak. So state, "It is clear that unethical ictarial power. Benign or or- preme Court has place ial usurpa- well as illegal activities ok wise, ictarial power is utterly - o, although Presi camtion] bomb- course [ reelec compatible with our emocratic tion secret Camboian paign... ext that I faile me, system. Disobeience a court orer, g seems quite clear have his ay prev m, I shoul have been I submit, woul be subversion Presi has yet short attach Presien- more vigilant." This is little Constitution, caral impeach- court. Little as I that an ct; negle tial assertions power plaly with- a confession able fense. t respec with clear Constitution, neglect.is no less A secon article impeachm hel from him e launch up have Senate ensug coverbase on subversion Consti- I am reluctant constitutional law, his suborates, an obstruction tution coul rest on Presi's ecie an issue must "I, state Presi, its justice. Mr. Nixon impounm appropriate funs. ispute trial an o assume responsibility for issue, That The Constitution gives Congress own favor. non teaches, is better such [reelection] actions." Respo sole power provie for Anrew Johns ity, ntabil accou it sibility carries with general welfare; so og, it is not, it is true, crimal responsibildisobeience a court itle select priorities. Nowhere ity, for no prcipal is responsible for Constitution is power given be l wou it, subm I orer, crimes his ag. But he is Presi substitute his for wrongs he subversion Consti- civilly responsiblecomm own priorities. Some twy courts it; an im m enable tution, caral have hel his impounms be, is prorecall will you m, peach unconstitutional, that is, excess fense. Presi ble nal. acha crimi impe not ctic, phyla his powers an an encroachm Mai che, impea be can Nixon on prerogatives Congress. son's wors, for "neglect superfrom ve remo s, court left The secret bombg Camboia ten [his suborates'] conuct, partisan bias, un may also be viewe as any suspicion conflict with trai- so as check ir excesses." a subversion Constitution. It cloue The Founers feare an excess not sit jugis wiely agree among em tion that one shoul executive hans; y ha power case. hisrians that so far as "origal m on his own n f shackles one throw just s There may well be or groun tion" Founers is conge III, an were not Geor t, tyran e nt which Hous cerne, power make war was impeachme t anor. Hence, submi me ittee will ue exclusively veste Constitu- Juiciary Comm chm as an impea e provi y er. For example, thus tion Congress. They tene, course consi st arbitrary aga t restra tial essen rs Wate wors James Wilson, secon far implication m wiso The rule. an one-m been consiere only Maison as an architect gate cover-up have conantly abun been has ers Foun but al complicity; Constitution, put it beyon terms crim time The s. ev t recen firme s Maison power a "sgle man" a statem Jame has come regar impeachm, ates that ic ress Cong First argum "hurry" us war. The not as a clumsy, outworn apparatus, ecwier persp for a Presi powerful enough it may be viewe but rar as an strum re was Maison sglehanely embroil nation tive. Recall that n, generation for protection our liberitutio Const war rests on comparatively rec chief architect ties an our constitutional system. uction an ha a han tro Presiial assertions power. rs" meano From Harper's, January, Reprte with No Presi, or succession "high crimes an mise. sions provi achm impe unipermission. own ir Presis, can scope what know better woul Who titucons te lateral fiat rewri give those tion an reallocate mselves Founers tene exclusive an for powers purposely withhel from terms? Argug ve his remo r m an conferre on Congress Presiial powe that state son Mai s, alone. On this reasong, Cam- suborate iar pecul a him boian bombg, beg a usurpation this "will make ct, conu ir for sible Congressional power, constitutes manner respon 38

6 elusive grouns for removal power, re are prcipally two les impeachm. Thus, ext "authority" which have been which English practice an English voke support a iffer view "unerstangs" were attache that somethg House an Senate (rar than rejecte ) immay believe constitute a serious peachm clause our Constitufense, albeit not a crime, woul be tion is no means clear. suffici grouns remove So far as unexame habit Presi impeachm. rug our Constitution const The first se is rawn from ce English practice an usage referen English hisry an practice, some rne, moreover, it must be conce is portion which was arguably apat once how treacherous nize recog prove formulation our uction can be. It was constr rule that impeachm clause. The secon le that First ve belie once authority is rawn from congresction " prote t's men Amen sional practice, that is, from Congress is which " speech m freeo has manner which Congress previously applie clause. "That an unconstitutional As first, it is isputable that rous English hisry furnishes nume action has been taken m removg Parlia les examp... those cle lean before surely oes not ficers Crown for a vast variety heavily on English usages allege political affronts Parliam rener that same action m Parlia an for actions which for "clarification" our any less unconstitutional outrageous stances be eeme Constitution must be mae malamistration. at a later ate." feel ifficulty y But ifficulty with usg this his abrige was be eterry impose a broa (an highly forbien may suffer when it is not g English law look me uncerta) meang on our own orer establish, Mr. Nixon, but some perio same Constitution rests questionable protection here. The e egre same terest ir own, assumption that our impeachm iately isastrous. imme was result clause meant aopt, rar than which is volve. (basically, any libel ious Seit narrow, an English practice which ha ly critical eep t men state been use establish parliamary proceeg) shall neverless be liaor not true) was er wheth nm gover supremacy impeachms on ble an subject Inictm, Trial h law an, Englis uner tecte unpro grouns specifically rejecte Jugm, an Punishm, acress precong early an ly, accor makg our Constitution. corg law," Constitution seition an alien aopt sume Parliam impeache Governor furnishes consist support for Sen. with jail, critics put which acts General Inia Warren Hastgs Erv's view. feeral lower val appro full 1786 (with a year our Philaelphia In sum, strict construction i 1920s until Not. courts Constitutional Convion) for gross impeachm clause hols that proper er consi beg even Court e Suprem malamistration, a term also grouns for impeachm must be First possibility that clue at time six 13 state seriously base on evience satisfyg Senate not accept English i m Amen at constitutions this country. Yet, that person be remove has cornthat it greatly narrowe that Philaelphia, when George Mason law, but mite a serious crimal fense relaw an virtually repuiate it. Virgia propose a wor flectg irectly upon fice from Thus those cle lean heavily "malamistration" "treason an which he is be remove. It is not on English usages for "clarification" bribery" as grouns for impeachm only possible view impeachm must be mae feel proposal was at once rejecte as our Constitution clause, but it warrants our most ifficulty y may suffer when it is o vague an o broa. sympatic consieration com, but some terest The rejection Mason's "English" not Mr. Nixon parison with slippery slopes is volve. which suggestion was followe at once, ir own, or views. without ebate, ag only "or The or le argum that high Crimes an Misemeanors" Agast this prfere strict apart narrow net "treason" an "bribery" as ex- woul sprea construction impeachm generis (that a general provision followg a specific listg is be construe keepg with that specific listg), it is also plausible that "or high Crimes an Misemeanors" must not only be crimal fenses like treason an bribery but, like m y must also be serious crimal fenses ("high" crimes an "high" misemeanors). The constitutional close association grouns for impeachm with crimes is repeate specific language or articles as well. In guaranteeg right trial jury for "all crimes, except cases Impeachm," an provig that a "party convicte ( an impeachm 40

7 impeachm clause is base upon past congressional practice that Congress has voke clause 13 times, an ten on grouns unrelate any crime. But asie from beg weak on merits (10 13 stances volve feeral juges who hol fice on "goo behavior"), this is worst possible source argum for those most eager impeach Mr. Nixon an argum y shoul shuer use. It was very argum he himself partly relie upon expla why no eclaration war was require for... actual hisry impeachm clause teaches us somethg very iffer when Congress has use it loosely: that fact y ten emean mselves an martyr object ir effort. Vietnam that several Presis ha presume wage uneclare war past, an that this practice was itself some evience that no formal eclaration Congress was constitutionally require. That this style argum ten has little justification has recly been acknowlege Supreme Court. A few years ago, House efene its action enyg Aam Clayn Powell his seat Congress partly on basis that it ha previously acte same way agast or electe represatives an that longevity this practice (about 100 years' worth) itself furnishe evience its constitutional authority. The Supreme Court ok a iffer view: "That an unconstitutional action has been taken before surely oes not rener that same action any less unconstitutional at a later ate." Harry Truman ran same response when he sought justify his authority for seizg certa steel mills partly on basis similar actions or Presis: "(It) is ifficult follow argum that several prior acts apparly unauthorize law, but never questione courts, repetition clo a later unauthorize act with cloak legality." Besies all this, actual hisry impeachm clause teaches us somethg very iffer when Congress has use it loosely: that fact y ten emean mselves an martyr object ir effort. Anrew Johnson was impeache for somethg clearly not a crime, an conviction faile Senate where Johnson was efene a former Supreme Court justice who argue that impeachm lay only for crime. Sixty years earlier, Thomas Jefferson capitulate politics, leng his support impeachm U.S. Supreme Court Justice Samuel Chase on noncrimal grouns an Chase was acquitte. (Chase's counsel also argue that impeachm lay only for crimes.) What, n, can we truly say past congressional practice as a guie impeachm Richar Nixon? The guie for Congress follow was suggeste long ago Alexaner Hamiln avice he gave a "In so elicate a case," Hamiln suggeste, " one which volves so important a consequence... my opion is that no oubtful authority ought be exercise." oubtful authority ought be exercise." The question here ultimately is not what clever argum can make out impeachm clause, but what we say about ourselves how we treat this matter. Shall those among us who use one moe construction (a strict Shall those among us who use one moe construction (a strict construction) for First Amenm or eclaration war clause now urge a iffer one respect power impeachm? construction) for First Amenm or eclaration war clause now urge a iffer one respect power impeachm? Are we so unconvce that Mr. Nixon is truly subject removal for a clearly efe "high Crime or Misemeanor" that we thk it well stra an, our zeal "get him," re confess a weakness an a political motive, ironically unermg gravity charges orwise be raise agast him? Without pausg here etail list, I thk it is clear that House Juiciary Committee has ample specific cause pursue its quiry Presi's possible complicity specific high crimes an misemeanors. We may, however, seriously egrae that quiry as well as impeachm power itself gog a sgle step beyon. Presi on an issue similar gravity, avice Mr. Nixon himself shoul have taken more frequly than he has. "In so elicate a case," Hamiln suggeste, " one which volves so important a consequence... my opion is that no 41