Alexander Hamilton sees that impeachment poses a special problem for elective government. In Federalist 65, he writes that impeachment is designed to punish political offenses, that is, “the misconduct of public men,” their “abuse or violation of some public trust”—”injuries done to the society itself.” In a popularly-elected government, “the prosecution of [such crimes]… will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or 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 the parties than by the real demonstration of innocence or guilt.” The Framers lodged the power of impeachment in the House, but lodged the power of conviction in the Senate, precisely so that the popular will could be registered, but at the same time would ultimately be expressed by that elective branch farthest removed from the passions of the moment. Thus the prosecutor (the House) is not also the judge. Thus also, the unelected Supreme Court does not make the decision, but its Chief Justice does preside over the Senate trial.
Given these safeguards, it is not surprising that serious impeachment attempts against presidents have been rare: Andrew Johnson in 1868, Richard Nixon in 1974, Bill Clinton in 1998. But it should be noted that impeachment has become a more likely event in the past 25 years, especially when it is remembered that the Iran-Contra investigation might have spun into an impeachment procedure, had not President Reagan’s alibi—’I didn’t know what was going on’—seemed plausible if one believed his enemies’ own ridicule-Reagan rhetoric for the previous six years. From what we now know about Reagan, it is likely that he cinched them into that very bind, but in any event they stepped right into a snare of their own making.
Despite these safeguard, the U. S. Constitution makes impeachment more likely than it is under, for example, the English Constitution, where the Prime Minister must head the majority party in the legislature, because America can have the presidency and the Congress controlled by opposite parties. As a sort of benchmark, it’s therefore worthwhile to see how impeachment played out in 1868, a time well removed from current political passions.
At that time Congress reaffirmed the Hamiltonian principle that impeachment is intended to check “abuse of power and public trust” for “defined, indictable offenses” (see Kelly et al. II. 342). Johnson allegedly had violated the tenure of Office Act, a statute Congress passed, many historians contend, precisely in order to force Johnson to violate it; defense maintained that the Act was unconstitutional, and therefore it could not be an impeachable offense to disobey, as (they admitted) Johnson had done. Although political in this broad sense, Johnson’s attorneys argued and won the point that the defendant could not be tried merely as the political opponent of the Republican Congressional majority; if solemnized, this standard would of course in effect turn the American federal government into a parliamentary system. Johnson was indeed being tried as the political opponent of the Republicans—or, not to trivialize it, as a very serious policy opponent. But it makes a difference if that can be openly admitted or not. If it can be openly admitted, then the evidence needed for conviction need only be: ‘He disagrees with us.’ If it cannot be openly admitted, then the impeachment proponents must prove that the president has committed high crimes and misdemeanors, and their motives for essaying that proof are legally irrelevant. This in turns feeds into the politics of the situation, inasmuch as voters who may not be quite so partisan as Congressmen will frown upon a too-nakedly-partisan trial.
House managers argued that Congress had as much right as Johnson did to say whether the Tenure of Office Act was unconstitutional. This was actually consistent with the longstanding Jeffersonian-Democrat claim that each branch of the federal government is entitled to interpret the Constitution within its own jurisdiction, so to speak. Johnson was saved not because the constitutional issues were settled, but because a sufficient number of conservative Senate Republicans did not want Johnson removed. As Kelly recounts, “they opposed the political and economic views of radical senator Ben Wade of Ohio, president pro tempore of the Senate, who would become president if Johnson were removed” (II. 345).
It is hard to avoid the conclusion that the one nineteenth-century impeachment was an anomaly, the product of the unusually high political passions engendered by the Civil War. Although divided government was possible then as now, it was uncommon. Divided government occurred only four times in the century, and on two of those occasions it occurred in the last years of the president’s term (Hayes in 1879-80, Cleveland in 1895-96), when it scarcely would have been worth the effort to impeach the fellow, anyway.
By the time of the Nixon contretemps, the divided character of the federal government had become much more pronounced than it usually was in the nineteenth century. Post-World War II presidents frequently endured long periods of majority opposition in Congress: Truman in the last two years of his first term; Eisenhower in the last two terms of his first term and throughout his second term; all six years of the Nixon Administration; all of Ford’s brief administration; all of George W. Bush’s administration; the last two years of Clinton’s first administration and all of his second.
Eisenhower and (for the first three years) Bush were much too popular to be impeached. Congressional Democrats contented themselves with growling about the Iran-Contra transaction and caviling about Sherman Adams’s vicuna coat. Ford was a weak president, slated for electoral defeat. But Nixon and Clinton, though popular generally for most of their terms, were viscerally disliked by core constituencies within the opposition parties, and that is what made the difference.
The Democrats were vastly helped in 1974 because Nixon really had committed impeachable offenses. Buoyed by his landslide victory over George McGovern in 1972, Nixon decided that he had a ‘mandate’ in effect to govern as he pleased—the so-called “plebiscitary presidency” (Kelly et al. II. 665). It is of course true that Nixon’s predecessor, Lyndon Johnson, had thought pretty much the same way, but he had the luck to have a Congress controlled by his own party. Additionally, Johnson had the ill luck to enmesh himself in the increasingly unpopular Vietnam War, which provided all the hook his Democratic Party opponents needed to get rid of him electorally, without legal action; a supremely astute politician when it came to anticipating electoral outcomes, Johnson spared himself considerable embarrassment by bowing out of the Democratic primary elections. At any rate, the political will to attack Nixon and reverse the results of the 1972 election was there, and the only real challenge was to find the decisive evidence against him. This was provided by the famous ‘smoking gun’ section of the White House tapes, in which Nixon specifically instructed his underlings to obstruct justice by lying under oath. Although Nixon resigned before being impeached, he did so because he knew he would be impeached and convicted; in effect, he was the second president to be impeached and the first to be convicted, although, again, neither of these things happened in fact or in law.
Clinton was equally despised by the opposition core. What liberal Democrats were to Nixon the conservative, the conservative wing of the Republican Party was to Clinton. With the examples of Watergate and Iran-Contra before them (the latter, while not resulting in impeachment, effectively hamstrung the second Reagan Administration, and so was an effective piece of political maneuvering), conservative Republicans had not only the motive and the means (a majority in both houses of Congress, beginning in 1995), they also had evidence of wrongdoing that hit the most impassionating ‘hot button’ on their constituents’ dial: passion itself, a sex scandal during the course of which the president committed what were arguable impeachable offenses, namely, perjury and obstruction of justice in a civil lawsuit.
Few but the most naïve partisans believed that Clinton was not a serial adulterer and inveterate liar, but character flaws typically are addressed electorally, not legally, and Clinton had been reelected easily in 1996. These character flaws were precisely the kind that animated the conservative constituency, however, so what was needed was proof that Clinton had committed illegal acts that were public in character, according to the Hamiltonian definition. Such proof eventually came in the forms of telephone tapes and the celebrated DNA dress, lovingly preserved by a former Clinton inamorata. Because in Clinton v. Jones the Supreme Court had ruled that a sitting president can be sued for private actions unconnected to his public duties, Clinton had been forced to testify in the Paula Jones lawsuit case; instead of ‘taking the Fifth,’ his most prudent available move, he decided, as usual, to brazen his way out and to deny everything. Some of ‘everything’ turned out to be true; Clinton was caught in perjury and obstruction of justice, and arguable grounds for impeachment were handed to his political enemies.
In arguments before the House, representatives Inglis and Canady observed that high crimes and misdemeanors are “offenses against public justice, against the public peace, against public trade, and against the public police or economy”; they include perjury and obstruction of justice. Clinton could not consistently respond that he was guilty of merely private wrongdoing (although his handlers did, anyway) because in addition to lying he had invoked executive privilege during the months-long investigation by the Special Prosecutor, in yet another series of attempts to delay the process. The Democrats in Congress were reduced to arguing that, yes, Clinton had indeed perjured himself and obstructed justice, but he had done so in matters that themselves had nothing much to do with his official duties—private liaisons dangereuses, albeit some committed in the president’s offices at the White House. Although admittedly not all ‘private’ crimes could be so waved aside—murder and rape presumably would be off-limits—lying under oath about mere adulterous friskiness shouldn’t count. Democrats could then use words like “reprehensible” and “immoral” to describe Clinton’s behavior, but could also say his crimes did not “rise to the level of impeachable offenses.” That is to say, while Republicans stuck to the rigors of exact legality, Democrats proposed a sort of balancing test.
With 95% of House Republicans voting ‘yes’ and 95% of House Democrats voting ‘no,’ Clinton was impeached. The Senate, whose role ostensibly was to judge innocence or guilt of the crimes as defined rather than to undermine the House’s definition, predictably went ahead nd did what it wanted to do, which was exactly what the majority of their constituents wanted them to do: Let the guy off the hook and get on with other issues. There were the expected rhetorical gymnastics by the senators. My favorite was Olympia Snowe’s “Acquittal is not exoneration,” although Senator Breaux’s “[the President] is not innocent”—though presumably not guilty, either—ran a close second.
The inclination to paralyze rivals by means of Congressional investigations and sometimes impeachment has come to the surface mostly in the post-World War II period. Part of this may have to do with television, which is concurrent with the inclination: TV makes show trials more showy, whether it be McCarthy going after the Truman Administration, Sam Ervin reading from the Constitution during the Watergate hearings, or Bob Livingston immolating himself during Monica Madness Days.
More telling, perhaps, was the tendency of American voters to want two things. First, they have wanted to continue the basic New Deal apparatus of limited social provision. That means they have usually wanted Democrats running Congress, where so much domestic policy gets made. Recently, that has meant that they wanted Republicans running Congress; if the social-provision apparatus gets too extensive or burdensome, and if the people running it are seen as too corrupt, out Democrats will go and in will Republicans come.
Second, American voters have also wanted strong military defense, having decided that the Second World War resulted from the weakness of the democratic republics, and also having decided that communists were no better than fascists. For this stern task they have preferred Republicans, the party that has remained consistently ‘nationalist’ since its beginnings in the 1850s, and which never had a Henry Wallace/George McGovern wing that could be accused of harboring ‘no enemies on the Left’ sentiments.
With long-term partisan splits between the executive and legislative branches brought about by these dual policy goals of the American people, it is no surprise that infighting gets nasty. As always, politicians will be punished when the overreach, as Congressional Republicans were (mildly) in the 1998 midterm elections, and also as Vice President Albert Gore was punished in his attempt to succeed Clinton, a slightly creepy president he’d defended too-loyally. With the Cold War over, and with the Clinton fiasco in recent memory, will voters prefer undivided government for a time? They might have assumed this would cure the impeachment/investigate-to-death syndrome, but as it may happen with President Donald Trump, all you may need is a hostile fourth ‘branch’ of government, the federal bureaucracy, with allies in the ‘fifth estate,’ journalism, to roil the waters.
Work Cited
Kelly, Alfred H.; Harbison, Winfred A.; Belz, Herman: The American Constitution: Its Origin and Development. 2 volumes. New York: W. W. Norton and Company, 1991.
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