Why is impeachment ambiguous

The reason for this anomalous hybrid reveals much about law and its limits. Yet this proves to be an elusive quest, stretching legal tools and techniques to-- or even beyond-- their outer bounds. Allow me to analogize from a different context that I have studied at some length, which surprisingly exhibits a loosely parallel dynamic.

Legalistic religions like Judaism normally categorize wrongs as normative prohibitions. But at times the enormity or intensity of a sac-religious behavior or stance makes this matrix inadequate. Even as the normative habit will continue to appeal to legal terms and institutions, a cardinal sin will resist these metrics.

None of the enumerated sins are conventional prohibitions from the Decalogue or other legal corpora. Yet, despite their exceptional provenance and nature, the rabbis assimilate these foundational sins into a kind of loose normative template. They enumerate extraordinary transgressions, appeal to a celestial trial, and announce a n altogether different kind of punishment. To borrow freely from the lexicon above, these involve high sins, rely upon a trial that is conducted by a select council, and conclude with a punishment of a rather drastic removal.

For impeachment is reserved for an ultimate betrayal of democratic principles and commitments, an assault on the fabric of a democratic society, a shattering of the social contract. Perhaps, then, it may help to return to Philadelphia during the summer months of , when impeachment and its specifics were debated by writers and signers during the Constitutional Convention. In fact, the delegates wrangled with nearly every aspect of impeachment over several weeks.

Many delegates agreed with the notion but struggled with how to characterize unfitness or the best process for removal. John Dickinson DE spoke to the latter concern when he argued that the executive should be removed if a majority of the state legislatures voted in the affirmative.

Only his home state of Delaware supported his motion. The convention adopted this broad definition knowing fully well it would need to be better specified at a later date. Impeachment returned before the convention nearly six weeks later on July But before they rewrote the language on unfitness for office, some delegates wanted to take a step back and debate whether they thought it wise that an executive should be subject to impeachment at all.

James Madison VA , among others, took the other side. He argued that executives could commit actions while in office that would demand removal prior to the next election. Elbridge Gerry MA argued the threat of impeachments provided an essential check on the executive. A bad one ought to be kept in fear of them. The constitutional and ratification debates confirm that impeachment was limited to only the gravest political wrongs. The Framers plainly intended the impeachment standard to be a high one.

They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate. In George Mason's apt language, impeachment was thought necessary to remedy "great and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttempts to subvert the Constitution.

No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him -- and the Framers were fully aware of this. The specific harms the Framers sought to redress by impeachment are far more serious than those presented here. During the ratification debates, a number of the Framers addressed the Constitution's impeachment provisions. The following is a list of wrongs they believed the impeachment power was intended to address:.

The history on which they relied, the arguments they made in Convention, the specific ills they regarded as redressable -- all these establish that the Framers believed that impeachment must be reserved for only the most serious forms of wrongdoing. They believed, in short, that impeachment "reached offenses against the government, and especially abuses of constitutional duties. Ours is a written constitution of separated powers.

In that Constitution, the President does not serve at the will of Congress, but as the directly elected, 22 solitary head of the Executive Branch. The Constitution reflects a judgment that a strong executive, executing the law independently of legislative will, was a necessary protection for a free people.

These elementary facts of constitutional structure underscore the need for a very high standard of impeachable offenses. It was emphatically not the intention of the Framers that the President should be subject to the will of the dominant legislative party. Our system of government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies.

The Framers' decisive rejection of parliamentary government is one reason why they caused the phrase "Treason, Bribery or other high Crimes and Misdemeanors" to appear in the Constitution itself.

They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature. Although the Committee need not set forth the concept of "impeachable offense" with scientific precision, that concept must be made sufficiently clear and its substance made sufficiently demanding to ensure that any subsequent impeachment inquiry will be reasonably viewed by the public as arising in one of those rare cases when the legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the Republic.

Any "standard" short of that will effectuate both a legislative usurpation of a power belonging only to the people the power to choose and "depose" Presidents by election and a legislative encroachment on the power of the Executive. The Committee must articulate such a standard here. It must say just what it is about the alleged conduct in the Starr Referral that amounts to a "great offense[] against the Constitution. To proceed without such a clear standard is to weaken the President in the absence of the only justification our Constitution permits for such a step -- a demonstrated need to protect the people themselves.

The Framers made the President the sole nationally elected public official, responsible to all the people. He is the only person whose mandate is country-wide, extending to all citizens, all places, and all interests. He is the people's choice. Therefore, when the issue of impeachment is raised, the House and ultimately the Senate confront this inescapable question: is the alleged misconduct so profoundly serious, so malevolent, that it justifies undoing the people's decision?

Is the wrong alleged of a sort that not only demands removal of the President before the ordinary electoral cycle can do its work, but also justifies the national trauma that accompanies the impeachment process itself? The wrongdoing alleged here does not remotely meet that standard.

The remedy of impeachment was designed for only those very grave harms not otherwise politically redressable. As James Wilson wrote, "our President. For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms.

Again, in Hamilton's words:. The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended purpose. In Justice James Wilson's words, impeachments are "proceedings of a political nature. Rather, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution.

And ordinary political wrongs can be addressed at the ballot box and by public opinion. Impeachment is reserved for the most serious public misconduct, those aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.

That impeachment was reserved for serious public wrongdoing of a serious political nature was no mere abstraction to the authors of the Constitution. The ink on the Constitution was barely dry when Congress was forced to investigate wrongdoing by one of the Framers. In , Congress investigated then-Secretary of the Treasury Alexander Hamilton for alleged financial misdealings with James Reynolds, a convicted securities swindler.

Hamilton admitted to making secret payments to Reynolds whose release from prison the Treasury Department had authorized. Hamilton acknowledged that he had made the payments but explained that he had committed adultery with Reynolds' wife; that he had made payments to Reynolds to cover it up; that he had had Mrs. Reynolds burn incriminating correspondence; and that he had promised to pay the Reynolds' travel costs if they would leave town. The Members of Congress who heard Hamilton's confession concluded that the matter was private, not public; that as a result no impeachable offense had occurred; and that the entire matter should remain secret.

Although President Washington, Vice-President Adams, Secretary of State Jefferson and House Minority leader James Madison two of whom had signed the Constitution all eventually became aware of the affair, they too maintained their silence.

And even after the whole matter became public knowledge some years later, Hamilton was appointed to the second highest position in the United States Army and was speedily confirmed by the Senate.

It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard.

Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous "appearance" problem, were enough to implicate the standard.

These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.

Some have responded to the argument that the conduct at issue in the Referral is private by contending that the President is charged with faithfully executing the laws of the United States and that perjury would be a violation of that duty.

That argument, however, proves far too much. Under that theory, any violation of federal law would constitute an impeachable offense, no matter how minor and no matter whether it arose out of the President's private life or his public responsibilities.

Thus, lying in a deposition in a private lawsuit would, for constitutional purposes, be the equivalent of lying to Congress about significant conduct of the Executive Branch - surely a result those advocates do not contemplate.

C, infra , that the "faithfully execute" theory has been flatly rejected by this Committee. Impeachable acts need not be criminal acts. As Professor Black has noted, it would probably be an impeachable act for a President to move to Saudi Arabia so he could have four wives while proposing to conduct the Presidency by mail and wireless from there; or to announce and adhere to a policy of appointing no Roman Catholics to public office; or to announce a policy of granting full pardons, in advance of indictment or trial, to federal agents or police who killed anyone in the line of duty in the District of Columbia.

This, because they are all "serious assaults on the integrity of government. But the reverse is not true: criminal acts are not necessarily impeachable. Holders of public office should not be impeached for conduct even criminal conduct that is essentially private.

That is why scholars and other disinterested observers have consistently framed the test of impeachable offenses in terms of some fundamental attack on our system of government, describing impeachment as being reserved for:. Allegations concerning private sexual conduct and efforts to conceal that private conduct simply do not implicate high crimes or misdemeanors.

Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses "offences[] which are committed by public men in violation of their public trust and duties. The availability of the process is commensurate with the gravity of the harm.

When the House Judiciary Committee investigated President Nixon in the 's, it too confronted the question of just what constitutes an "impeachable offense. One of the first tasks assigned to the staff of the Judiciary Committee when it began its investigation of President Nixon was to prepare a legal analysis of the grounds for impeachment of a President.

The staff concluded that:. It is not controlling whether treason and bribery are criminal. The emphasis has been on the significant effects of the conduct -- undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.