Abusing the Impeachment Process
Editor’s note: This piece is coauthored by Thomas Jipping, Deputy Director, Center for Legal and Judicial Studies.
On three separate occasions, Rep. Al Green, D-Texas, has introduced a resolution to impeach President Donald Trump. Each time, the House of Representatives has voted it down.
And with good reason. Consider Green’s latest resolution. No matter how much one opposes Trump, it would have been a serious misuse of the House’s impeachment power. The 95 members who voted for it either do not understand or do not care about the purpose and proper use of this procedure.
Green’s resolution said that the president should be impeached because he is “unfit to represent” American values of “decency and morality” and “respectability and civility.” It also cited Trump’s criticism of four Democratic House members.
There is no doubt that Green deplores Trump and disagrees with his policies on many important issues. The question, however, is whether such matters are properly the basis for seeking to nullify the last election by removing the president from office. They are not, as we explain in a new research paper on the history of impeachment.
In drafting the Constitution, America’s founders provided for impeachment not as a partisan political weapon, or as an alternative to elections, but as a way to address serious misconduct by the president or other federal officials — conduct that betrays the public trust, breaks the law, or otherwise renders them unfit for office.
The 1787 convention that produced the Constitution carefully defined the conduct that warranted impeachment. The delegates rejected broad, vague language such as “malpractice or neglect of duty” as well as a narrow category limited only to treason and bribery. Instead, they chose the phrase that appears today in Article II, Section 4: “Treason, Bribery, or other high Crimes and Misdemeanors.”
This phrase had been in English law for centuries, and the founders knew what it meant. It designates behavior that, as Professor John McGinnis puts it, is “serious objective misconduct that bears on the official’s fitness for office.”
To date, neither Green nor any other representative has made the case that the president has engaged in such misconduct. In fact, Green’s resolution doesn’t attempt to do so. It is simply an expression of outrage at the personality, character, behavior and speech of the president.
America’s founders were clear about the meaning and proper use of impeachment, and American history counsels against abusing this power. In the 19th century, radical Republicans impeached President Andrew Johnson because they disagreed with his plans to implement President Abraham Lincoln’s conciliatory policies towards the Southern states. The impeachment articles claimed that even Johnson’s speeches amounted to “high Crimes and Misdemeanors.”
Historians have condemned the Johnson impeachment as rash, reckless, and unwarranted. House members improperly turned Johnson’s legitimate decisions as president into impeachable offenses simply because they disagreed with those decisions. With rhetorical excesses similar to those directed today against Trump, radical Republicans tried to portray Johnson as a “wild-eyed dictator bent on overthrowing the government.”
Shortly before the Johnson impeachment, C.M. Ellis addressed “the causes for which a president may be impeached.” Neither the House nor Senate, he wrote in The Atlantic, may act arbitrarily. Rather, they must be guided by rules about the proper purpose and use of impeachment. That counsel is needed just as much today as it was in 1867.
The arbitrary, partisan use of impeachment represented by the Green resolution is at odds with the nature of impeachment as it was practiced in England and understood by those who drafted and ratified the Constitution. It is incompatible with the republican form of government guaranteed by the Constitution. It would allow 285 members of Congress — a simple House majority and two-thirds of senators — to remove a duly elected president for partisan reasons or over matters of personality and style.
This should not be laughed off as just partisan fun and games. It’s a dangerous, anti-democratic maneuver that flouts the principles on which our republic was founded and threatens its stability.
Republished from The Heritage Foundation.