Impeachable Offenses: A History (Part 3)

In my previous two posts, I offered insights on impeachable offenses from the preeminent expositor of the Constitution in early America, Supreme Court Justice Joseph Story, and from one of the most learned legal scholars of the twentieth century, Raoul Berger. In this, my final post dealing with the subject, I turn to what the House of Representatives concluded during its investigation of Richard Nixon’s potential impeachment. Yes, that House conclusion was written when Democrats controlled the House, but it was also the basis for Republicans during the Clinton impeachment, so it had acceptance from both sides of the political aisle.

I am once again drawing heavily from the book I wrote shortly after the Clinton impeachment trial.

One year after Berger published his book on impeachment, the House Judiciary Committee, which was investigating Nixon, issued a report on the constitutional grounds for presidential impeachment. Referred to as the Rodino Report, it confirmed Berger’s findings.

The report provided an extensive review of impeachments from English history, showing how that precedent was what informed America’s Founders and that after independence, America followed the understanding that had always dominated English impeachments. The report noted that “at the time of the Constitutional Convention the phrase ‘high crimes and misdemeanors’ had been in use for over 400 years in impeachment proceedings in Parliament.” It further pointed out that “from 1620 to 1649 over 100 impeachments were voted by the House of Commons” and that when high crimes and misdemeanors were cited, they “included both statutory offenses . . . and non-statutory offenses.”

The list of impeachable offenses is rather remarkable: breaking a promise made to Parliament; “procuring offices for person[s] who were unfit and unworthy” to hold them; failure of an attorney general to prosecute cases after commencing the lawsuits; and “negligent discharge of duties and improprieties in office.” That last one consisted of “browbeating witnesses and commenting on their credibility, and with cursing and drinking to excess.”

The Rodino Report then analyzed the intent of the Framers of the Constitution and determined that they followed the English understanding of impeachment and the meaning of high crimes and misdemeanors. Quoting James Wilson (a Founder I mentioned in my first post) in the Pennsylvania ratifying convention, the report stated, “Far from being above the laws, he [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”

The report then summarized its position and left no doubt that impeachments are not identical with criminal court cases:

The post convention statements of and writings of Alexander Hamilton, James Wilson, and James Madison—each a participant in the Constitutional Convention—show that they regarded impeachment as an appropriate device to deal with offenses against constitutional government by those who hold civil office, and not a device limited to criminal offenses. . . .

The American experience with impeachment . . .reflects the principle that impeachable conduct need not be criminal. Of the thirteen impeachments voted by the House since 1789, at least ten involved one or more allegations that did not charge a violation of the law. . . .

Unlike a criminal case, the cause for the removal of a President may be based on his entire course of conduct in office. [emphasis added] In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.

To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as not to reach conduct that might adversely affect the system of government. Some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law. [emphasis again added]

As I stated above, although this report was written by the Democratic majority at that time, the Republican majority in the Clinton impeachment used that same report as its basis for proceeding with the impeachment trial.

So am I writing all of this out of selective animus toward Donald Trump? Go back and check all the posts I wrote during the Obama years, and I’m sure you will find numerous times when I commented on his abuse of office. I believe his offenses also constituted a threat to our governmental order; I would have supported an impeachment trial for him as well.

I’m merely attempting to be consistent, which is something that neither the Democrats nor Republicans have attempted. What Democrats and Republicans said during the Clinton trial is being repeated today, but with one startling exception: each party is saying just the opposite of what it said back then.

Republicans were correct in what they argued in 1998-1999. Democrats are correct in what they are arguing in this current trial. Democrats are being hypocritical when comparing what they said then and what they are saying now—but they are right nevertheless. Republicans are being hypocritical when comparing what they said then and what they are saying now—but they are wrong now. Facts are stubborn things, but they are facts regardless.