The Case for Impeachment. Allan Lichtman J.

future of America cannot, will not, be that of a walled-in nation, either literally or figuratively.

       CHAPTER 1

       High Crimes and Misdemeanors

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      The President, Vice President and all 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.

       —Article II, Section 4, Constitution of the United States of America

      IMPEACHMENT 101

      The first thing you need to know is how impeachment works: The impeachment and removal of a president begins under the Constitution in the United States House of Representatives. An impeachment typically begins with an investigation by the Judiciary Committee. If the committee decides to investigate, it may then by majority vote recommend articles of impeachment to the full House. Members then vote up or down on each article. The House may also proceed with impeachment regardless of the Committee’s recommendations. If a majority of the House ratifies one or more articles of impeachment, the case against the president proceeds to a trial by the Senate, presided over by the chief justice of the Supreme Court. A special prosecutor, a representative from either party, or even members of the public can request an investigation, although the Committee or the full House must agree to proceed with the inquiry.

      At trial, the Senate acts as both jury and judge, with the power to subpoena witnesses, issue contempt rulings, dismiss charges, set trial procedures, and overturn rulings of the chief justice. Prosecutors appointed by the House present their case to the Senate, and the accused makes his choice of counsel for the defense. There is no requirement that the accused must appear in his own defense. At the end of the trial, the Senate has the power to convict and remove the president by a two-thirds vote of those present.

      A president cannot pardon himself from impeachment, and if ousted by the Senate, he immediately sheds the protection of presidential immunity and becomes subject to arrest, prosecution, trial, and conviction under state or federal criminal law. By a separate vote, the Senate can bar a convicted president from holding any future federal office. Otherwise, an impeached president, if constitutionally eligible, could run again for White House. A president can run again if he was not elected twice or if elected once he did not serve for more than two years as an unelected president.

      Decisions on whether to impeach a president turn on the wisdom of Congress and do not require proof of a specific indictable crime under either federal or state law. The verdict of the House and Senate is final. There is no right of appeal or judicial review of their decisions.¹

      Impeachment covers not just presidents, but other federal officials, notably judges appointed for life. Since America’s founding, the House has impeached two presidents and fifteen judges. The Senate acquitted both presidents. It convicted eight of the judges.²

      AMERICA’S FOUNDERS STRUGGLE WITH IMPEACHMENT

      After what George Washington called the “standing miracle” of his victory over British arms, the general retired to his Mount Vernon plantation. Bouts of smallpox, tuberculosis, malaria, and dysentery and years of tense warfare had racked his body, leaving him prey to debilitating aches and fevers and a “rheumatic complaint” so severe at times that he was “hardly able to raise my hand to my head, or turn myself in bed.” Yet in 1787, Washington donned his best breeches and frock coat, powdered his hair, and pushed his body to serve his country again: this time as the indispensable president of a constitutional convention in the sweltering Philadelphia summer.³

      In the span of just over a hundred days, the delegates created a radically new frame of government powerful enough to protect and preserve their fledging republic, but one with enough checks and balances to safeguard against the tyranny that Americans had endured under British rule. These learned but pragmatic politicians adhered to the later warning of John Adams that: “Men are not only ambitious, but their ambition is unbounded: they are not only avaricious, but their avarice is insatiable.” Therefore, “it is necessary to place checks upon them all.”

      The framers adopted impeachment as a necessary check against tyranny. “Shall any man be above justice?” asked the influential Virginia delegate George Mason. He warned that it is the president “who can commit the most extensive injustice.”⁴

      Although they agreed on the need for impeachment, the delegates struggled with defining the grounds for indicting and removing federal officials. During the convention debates, to specify the criteria for removing a president, delegates used such disparate terms as “great crimes,” “malpractice or neglect of duty,” “corruption,” “incapacity,” “negligence,” and “maladministration.” They finally cast their vote for “high crimes and misdemeanors against the state,” then dropped the “state” qualifier, which both broadened and obfuscated the meaning of the impeachment.⁵

      POLITICS WITHOUT CRIME

      In the election of 1800, after one of the nastiest campaigns in U.S. history, the nation experienced its first political upheaval when the Democratic-Republican Thomas Jefferson defeated the Federalist incumbent president John Adams. Federalists attacked Jefferson for his alleged atheism, radicalism, and lack of moral standards. One propagandist warned that with Jefferson as president, “murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.”⁶ The Jeffersonians fought back, charging Adams with scheming to extinguish the republic by marrying one of his sons to the daughter of the King of England and reestablishing British rule over America.

      During this interregnum, John Adams pushed through the Judiciary Act of 1801, infuriating the victorious opponents. The act created sixteen new circuit court judgeships and reduced the size of the Supreme Court from six to five, thereby depriving Jefferson of an appointment. In the nineteen waning days of his presidency, Adams appointed so-called Midnight Judges to these new circuit court positions. When Oliver Ellsworth, the chief justice of the Supreme Court and an Adams loyalist, conveniently retired, Adams was quick to appoint the staunch Federalist John Marshall as his replacement. Marshall served as chief justice for more than thirty years.⁷

      Jefferson and his new partisan majority in Congress repealed the Judiciary Act and turned to impeachment for rectifying what they decried as the Federalists’ packing of the courts. They carefully picked as their first target the elderly Federalist district court judge John Pickering, whose advanced dementia and alcoholism led to erratic and sometimes bizarre behavior on the bench. The impeachment of one of many federal trial judges may not amount to very much, but Jefferson and his allies in Congress targeted Pickering as part of a larger plan: to breach the separation of powers and place the constitutionally independent judiciary under the heel of the president and his party. Ironically, it was Thomas Jefferson, who famously had written in his “Notes on the State of Virginia” that concentration of power “in the same hands is precisely the definition of despotic government,” who led this assault on the separation of powers.

      Jefferson as party leader set in motion the House’s proceedings against Pickering by transmitting to Congress “letters and affidavits exhibiting matter of complaint against John Pickering, district judge of New Hampshire, which is not within executive cognizance.” Eventually, Jefferson’s loyalists in the House drafted four dense articles of impeachment. None charged a specific violation of law, instead merely citing Pickering’s poor judgment, intoxication, and rants from the bench as evidence that he lacked the “essential qualities in the character of a judge.”⁸

      The Senate convicted Pickering in a straight party vote, making him the first federal official removed