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What Do Scholars Say About the Impeachment Power?

Patrick McDonnell, Jacques Singer-Emery, Nathaniel Sobel
Tuesday, October 29, 2019, 10:35 AM

Then-Rep. Gerald Ford once defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” But legal scholars have concluded that impeachment is considerably more law-governed, and constrained, than Ford suggested. They draw on clues from the Founders, the text and structure of the Constitution, and the history of presidential impeachments (and near-impeachments) to make varying arguments about the impeachment power and the range of impeachable offenses.

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Then-Rep. Gerald Ford once defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” But legal scholars have concluded that impeachment is considerably more law-governed, and constrained, than Ford suggested. They draw on clues from the Founders, the text and structure of the Constitution, and the history of presidential impeachments (and near-impeachments) to make varying arguments about the impeachment power and the range of impeachable offenses.

For this post, we read 11 of the leading scholarly works on impeachment so that you don’t have to. From the Watergate era, we covered the foundational work of Raoul Berger and Charles L. Black, Jr. We went back to the historical review of presidential impeachments written by Jon Meacham, Timothy Naftali, Peter Baker and Jeffrey Engel. From the late 1980s into the 1990s, we examined Michael Gerhardt’s comprehensive constitutional history and important essays by Akhil Amar, Ronald Rotunda and Cass Sunstein. We also looked at Office of Legal Counsel memoranda dealing with various narrow impeachment-related questions from the Clinton administration. And of a more recent vintage, we cover a collection of Trump-inspired works, including books by Cass Sunstein, Laurence Tribe and Joshua Matz, Alan Dershowitz, and Frank O. Bowman III.

This post outlines how these works answer five critical legal questions associated with impeachment. First, we look at what constitutes “high crimes and misdemeanors.” This seemingly vague phrase has some grounding in the Framers’ intent to have a broader range of offenses, beyond treason and bribery, for which a president could be removed from office. Second, we address a closely related question, whether impeachment is a legal or political process. From the language in the Constitution, it is not all that clear whether Congress should be adhering to particular legal processes or is free to deploy its political discretion. Third, we examine whether scholars view a violation of criminal law as a requirement for impeachment. Scholars agree that “high crimes and misdemeanors” expands beyond the narrow crimes of treason and bribery, but there is some disagreement about whether the phrase covers conduct not covered by any criminal code. Fourth, we explore how presidential impeachments differ from those of other government officials. Lastly, we address whether Congress has an obligation to impeach.

In general, despite the Constitution’s surprising silence on many key issues, we found more agreement than disagreement among the legal scholars. Still, the stakes are high where reasonable differences in interpretation could determine the fate of a presidency. As Chief Justice William Rehnquist said in a 1990 speech, the impeachment power is a “wild card” that by then had twice nearly “upset the checks and balances established by the Constitution.”

Relevant Clauses

Impeachment is mentioned in four clauses of the Constitution:

Article II, Section 4:

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 I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3, Clause 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Article I, Section 3, Clause 7:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

What are “high crimes and misdemeanors”?

Charles Black, Jr.

Black’s essay, “Impeachment: A Handbook,” first published at the peak of the Watergate era, explores the precise meaning of “high crimes and misdemeanors.” Black’s essay is a definitive exposition of the American impeachment process, and some commentators consider it to be the “most important book ever written on presidential impeachment.”

Black argues that the Framers intended a wider range of impeachable offenses that extend beyond just treason and bribery. He derives this interpretation from a colloquy from the 1787 Constitutional Convention. In expanding the offenses, however, the Framers did not want to employ vague language whereby a president would serve “during the pleasure of the Senate.” Black explains that this concern resulted in the withdrawal of a proposal that included “maladministration” and its replacement with the phrase “other high crimes and misdemeanors.” He goes on to note that we can understand what high crimes and misdemeanors entail by looking at the type of crimes treason and bribery fall into. These kinds of crimes are offenses “(1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless or wards on the statute books.” Black sums it up best when he explains that “high crimes and misdemeanors” in the constitutional sense are offenses that are clearly wrong (even if not criminal) and “seriously threaten the order or political society as to make pestilent and dangerous the continuance in power of their perpetrator.”

Raoul Berger

To determine how the framers viewed “high crimes and misdemeanors,” Berger looks at the use of the phrase in the context of impeachment proceedings in 17th and 18th century England (events known to the Framers). Berger also looks at Madison’s notes of the Constitutional Convention and records of the state ratification conventions to determine how the Framers and ratifiers viewed the term. Berger’s book “Impeachment: The Constitutional Problems” maintains that British common law and the debates that took place among the Constitution’s framers and during state ratification conventions show the clause was meant to include great injuries that betrayed the public trust. In British common law, impeachable offenses included misapplication of funds, abuse of official power, neglect of duty, encroachment on the legislature’s prerogatives and corruption. Berger notes that several of these actions were not strictly illegal.

In Berger’s view the Framers chose the phrase “high crimes and misdemeanors” because they knew its common law definition and wanted to ensure Congress would use the impeachment power only in extreme cases and not as a political weapon. Like Black, Berger turns to the Constitutional Convention’s decision to replace the term “maladministration” with “high crimes and misdemeanors” when it wrote the Impeachment Clause because “high crimes and misdemeanors” had a limited and technical meaning derived from its British parliamentary use centered around abuse of power and grave breaches of the public trust. While Berger also acknowledges that there is a reasonable argument that Congress needed to pass a statute defining what constitutes an impeachable offense, he argues that in the absence of federal common law, the Senate’s decision to hear impeachment cases in the past is a tacit rejection of the position that “high crimes and misdemeanors” requires precise congressional definition.

Frank O. Bowman III
In his 2019 book “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” Bowman details the evolution of impeachment from 14th century Britain through the three presidential impeachment sagas in the United States. For Bowman, the presidential impeachments (or near-impeachments) provide the most direct guidance for interpreting “high crimes and misdemeanors.” He goes on to identify three types of presidential impeachments that would be justifiable under the “high crimes and misdemeanors” label:

1. “Impeachment for conduct that destroys or gravely impairs presidential legitimacy.” In other words, conduct that casts serious doubt on the president’s ability to faithfully execute the laws and subordinate personal interests to the responsibilities of the office could damage public confidence to such a degree as to warrant impeachment.

2. “Prophylactic impeachment.” Here, the conduct was not only so reprehensible as to destroy legitimacy, but there is a very real concern it could happen again. The measure of impeachment would be to prevent similar abuses in the future.

3. “Definitional impeachment.” As Bowman acknowledges, all impeachments are definitional in a sense. They highlight the edges of what defines impeachable conduct. To Bowman, “definitional impeachment” can be defensive in that it seeks to preserve “existing constitutional interpretations, institutional relationships, [and] political norms and values against presidential assault.”

Cass R. Sunstein

Sunstein’s book “Impeachment: A Citizen’s Guide” and his essay “Impeaching the President” argue that while the phrase “high crimes and misdemeanors” has its origins in the common law of Great Britain, at this point, the doctrine has been Americanized. Sunstein uses Hamilton’s statements in the Federalist Papers (specifically 65, 66 and 69) to argue that the American Framers viewed “high crimes and misdemeanors” as political acts that precipitated “injuries done immediately to the society itself.” To Sunstein, a “high crime and misdemeanor” need not be a legal crime. While bribery, corruption and treason are all crimes, a severe neglect of duty, though not a crime, is nonetheless impeachable as a “high crime and misdemeanor.”

Sunstein maintains that impeachment was only supposed to be used for “great and dangerous offences” because the Framers expected elections every four years to be the primary check on a president’s actions. To provide a more concrete understanding of what types of actions might qualify for the American definition of “high crimes and misdemeanors,” Sunstein looks at cases in which Congress chose to start impeachment proceedings or refused to do so. Sunstein lists a series of scandals that were bad enough to attract significant public scrutiny but failed to meet the congressional standard for impeachment: President Nixon’s tax evasion, President Reagan and then-Vice President George H.W. Bush’s role in the Iran-contra affair, President Franklin Roosevelt’s illicit arms sales to England prior to the U.S’s entry into World War II, President Eisenhower’s public lies about the U-2 incident, President Ford’s pardon of Richard Nixon, President Kennedy’s illicit relationships, and President Lincon’s suspension of habeas corpus. Sunstein compares Congress’s inaction in these incidents to the articles of impeachment against Nixon and Congress’s impeachment of federal judges. From this comparison, Sunstein concludes that “high crimes and misdemeanors” are a narrow set of offenses specifically linked to the abuse of office and power, mostly in bad faith.

Laurence Tribe and Joshua Matz

Drawing on the Constitution’s structure and history, Tribe and Matz offer three general conclusions about the nature of “high crimes and misdemeanors.” First, they employ the canon of ejusdem generis to give meaning to “high crimes and misdemeanors” based on the two words that precede it: “treason” and “bribery.” Because both “treason” and “bribery” are crimes that “require proof of intent,” Tribe and Matz reason that “[m]otive matters in assessing whether the president” has committed a “high crime or misdemeanor.” Second, they argue that the “use of the word high is revealing.” Noting four specific instances in the Constitution where the Framers “denote[d] ordinary crimes,” they observe that “[b]y adding high before Crimes in [the Impeachment Clause], while excluding it everywhere else, the Framers plainly sought to capture a distinct category of offenses against the state.” (While they acknowledge that “high crimes and misdemeanors” was a “term of art” dating back to the 14th century in England, they conclude that the Framers “transformed impeachment when they ripped it from its English roots.”) Third, they subscribe to Black’s reading of the Impeachment Clause “harmoniously” with the bill of attainder and the ex post facto clauses to mean that “[w]e should treat as impeachable those offenses, and only those, that a reasonable man might anticipate would be thought abusive and wrong, without references to partisan politics or differences of opinion on policy.”

Is impeachment a legal process or a political one?

Charles Black, Jr.
Black acknowledges that the Senate trial is “quasi-judicial” in nature. While surely each senator would have some sort of preexisting political opinion of the president going into an impeachment trial, the solution to this impartiality problem lies in the conscience of each senator. They each would have to recognize their own prejudices and work toward trying the president on the evidence presented. Black says it best: “It makes no difference whether we call impeachment a ‘criminal’ proceeding or not, any more than it makes any difference whether we call it a ‘judicial’ proceeding or not. What does make a difference is ascertaining those things in the impeachment process that should be treated like the same things in a criminal trial, and what things need not be.” There is no need to convict “beyond a reasonable doubt” nor are there prohibitions on submitting “hearsay” evidence. Once again, Black turns to the senators. They must each develop their own standard and weigh evidence according to their own conscience, “advised by reflection.”

In the most recent edition of Black’s essay, Philip Bobbitt provides additional commentary and argues for a return to a more legal conception of the impeachment process. Calling impeachment a political question is a fallacy, Bobbitt argues, observing its scant use throughout history. He figures that if impeachment were truly political, one would expect it to be used more often for partisan reasons. Bobbit invokes Hamilton in Federalist #65: “[T]he subjects of [impeachment] are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” However, Bobbit argues that this quotation has always been read out of context to support a “political process” interpretation of the impeachment power. In fact, Hamilton took great pains to describe the “judicial character” of the Senate and how it would overcome its political nature to function as a “court for the trial of impeachments.” While Bobbit concedes that the House has voted along political grounds with Justice Samuel Chase and President Andrew Johnson, the Senate sits as a court. The senators’ additional oath emphasizes this unique quasi-judicial role: “do impartial justice, according to the Constitution and law: So help me God.”

Raoul Berger

Berger takes a different view of the question. Berger’s book “Impeachment: The Constitutional Problems” concludes that while the Impeachment Clause contains undeniably criminal terminology and associated provisions, impeachment was not intended to be a criminal process and has always included noncriminal offenses. To support this position, Berger turns to Article I, Section 3, Clause 7 of the U.S. Constitution, which states: “[J]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor ... but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Because this clause explicitly separates criminal prosecution of a public official from the impeachment process, Berger maintains that the Framers wanted American impeachment to be different from the unmistakably criminal approach taken in England. Berger also supports this claim by noting that the Senate, not a jury of 12, decides the verdict in an impeachment trial. If impeachment trials were criminal proceedings, such a structure would violate the Sixth Amendment, which requires a jury in such cases. Berger also cites the minutes of the Virginia and North Carolina ratification conventions to show the ratifiers did not want impeachment to be a criminal proceeding but, instead, a process confined to political characters, political crimes and misdemeanors, and political punishments.

Ronald Rotunda
Like Berger, Rotunda also emphasizes the political nature of the impeachment process. In “An Essay on the Constitutional Parameters of Federal Impeachment,” Rotunda notes that the public ratification debates point toward a “political process” definition. As Hamilton remarks in Federalist #65, impeachment cannot be tied down by strict legal rules. Rather, “the awful discretion which a court of impeachments must necessarily have to doom to honor or infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.” Therefore, the Senate—a large political body—makes political, discretionary judgments. Rotunda sees this sentiment echoed in Justice Joseph Story, who commented that political offenses are so complex and varied that it would be almost absurd for legislation to try to define it. To Rotunda, rule-bound legal processes fail in impeachment proceedings. Political judgment must replace the inflexibility and inadequacy of a purely legal process.

The Office of Legal Counsel

The political characteristics of the impeachment process have also been recognized by the Justice Department’s Office of Legal Counsel. In an Aug. 18, 2000, opinion, the Office of Legal Counsel notes that the Senate’s judgment in an impeachment trial is political in two ways. First, the phrase “high crimes and misdemeanors” requires senators to draw on their knowledge of history and the character of the office involved. In order to convict, the Senate must decide whether to undo the political will of the people. Second, even if the Senate believes the conduct merits removal, “they must weigh the strength of that conviction against their judgment about the harmful consequences for the nation of removal at a particular moment in our nation’s history.” In other words, what might otherwise be a “legal” determination of removal has to be tempered by a measure of discretion that includes the political considerations of the day.

Michael Gerhardt
Examining the Constitution’s pre-ratification history, Gerhardt concludes that “the framers and ratifiers apparently shared a common understanding of impeachment as a political proceeding and impeachable offense as political crimes.” Gerhardt, like Black, focuses in particular on the debate over the Impeachment Clause at the Constitutional Convention. He notes that George Mason objected to limiting impeachment to treason and bribery and recommended that the delegates include “maladministration” as an impeachable offense to capture “attempts to subvert the Constitution.” But James Madison objected, responding that “maladministration” was “so vague a term as to be equivalent to tenure during the pleasure of the Senate.” Madison instead favored the phrase “high crimes and misdemeanors” as “an alternative that would encompass attempts to subvert the Constitution.” Gerhardt concludes, “Hence, the debates at the constitutional convention suggest that impeachable offenses were not limited to indictable offenses, but also included abuses against the state.”

Does the president need to have broken the law to be impeached?

Laurence Tribe and Joshua Matz

Tribe and Matz argue that the “history and structure of criminal law” demonstrate that impeachment cannot depend on a criminal violation of the law. First, they note that the virtually nonexistent nature of federal criminal law at the time of the Founding suggests it is unlikely that the Framers intended to tie impeachment with criminal law. In addition, Tribe and Matz reject linking impeachment to state criminal law, observing that “invoking state law to supply the content of the federal Impeachment Clause would grant states a bizarre primacy in our constitutional system” that would “risk flipping federalism on its head.” Even more, the larger problem they identify is that “neither state nor federal criminal law is built for impeachment.” They observe that “[l]egislators have little incentive to craft criminal codes with attention to acts that might imperil the nation if committed by a president. Instead, legislators have responded to a very different set of concerns while deciding what conduct to criminalize.” Nonetheless, they do recognize that “the distinction between criminality and impeachment doesn’t mean that criminal law is irrelevant.” Citing former Lawfare editor Jane Chong, they agree that criminal law can serve as a “helpful reference point that we must always track to ensure we do not get so turned around that we stray into reactionary partisanship.”

Alan Dershowitz

Dershowitz, by contrast, argues that impeachment must be based on criminal conduct. In his view, a “conviction by the Senate of an enumerated crime is a necessary but not a sufficient condition for removal” and “[t]he added elements of violation of public trust and injury to society are required.” Dershowitz offers three core arguments to reach that conclusion. First, he finds that the “text [of the Impeachment Clause] speaks clearly of crimes, enumerating treason, bribery, and other high crimes and misdemeanors.” While he recognizes some open-ended terms in the Constitution “invite changing interpretations,” his reading of the Impeachment Clause is that “there is no way around [the] textual limitation” of the word “crimes.” He also cautions against interpreting ambiguous constitutional provisions to “diminish or ignore constitutional protections accorded to individuals, even government officials.” Next, he emphasizes the language of the special impeachment oath senators must swear. Noting that senators promise to “do impartial justice according to the Constitution and the law,” he observes that “this does not sound like a political event, it sounds like a legal trial, government by the rule of law.” In turn, if senators “were to ignore the textual criteria for impeachment and removal ... they would be acting unconstitutionally and in violation of their oath.” Lastly, Dershowitz argues that “the requirement that the chief justice must preside in cases involving the trial of the president” suggests that the chief justice’s impeachment role “may include assuring compliance with the words of the Constitution.” And, Dershowitz goes on to propose that “[i]f the House of Representatives were to impeach a president on grounds that are not included in the constitutional criteria, the president’s lawyers could file a motion in front of the chief just to dismiss the ‘indictment’ ... on the grounds that the Bill of Impeachment is insufficient as a matter of constitutional law.” Following “principles of law that hark back to Marbury v. Madison and its progeny,” Dershowitz finds that “if the chief justice were to conclude that the Bill of Impeachment did not state a constitutional claim, he would be required to dismiss it.”

Timothy Naftali

In an essay about the Nixon impeachment process in “Impeachment: An American History,” Naftali notes that multiple actors did not believe criminality was a requirement for impeachment. One of the first tasks of the House Judiciary Committee staff, led by John Doar, was to define what “high crimes and misdemeanors” meant, which would touch on the issue of criminality. Impeachment was a device linked to the Framers’ desire to have an executive that was neither too weak nor too strong. It was an “integral element in a system of checks and balances which maintains an equilibrium among the separate powers of the government.” In other words, as Naftali notes, the president need not commit a crime to be impeached. One area of interest during the impeachment inquiry was the actions of the president’s associates. In focusing on Nixon’s staff, Congress entertained the theory that the sum total of the actions of Nixon’s subordinates represented administration policy. These actions, per se, would not be a violation of the law by the president, but nonetheless would constitute an impeachable offense under the committee staff’s broader definition. However, ultimately the articles of impeachment voted by the House Judiciary Committee members included only obstruction of justice, abuse of power and contempt of Congress.

Charles Black, Jr.
Black, like Tribe and Matz, does not contend that impeachment requires the commission of an indictable crime. He lists several hypotheticals to make his point (see p. 31 of the new edition). Take, for example, a presidential policy of granting pardons in advance of trial to all federal agents who kill anybody in the District of Columbia. Black says this wouldn’t be a crime, and it is unlikely that it could be turned into a crime; however, it seems so manifestly wrong that it’s hard to imagine this would not amount to impeachable conduct. He concludes that “the limitation of impeachable offenses to those offenses made generally criminal by state is unwarranted—even absurd.” Bobbitt continues this theme in his addendum to the new edition, remarking on the unique role of the president and how there are “constitutional crime[s] that only the president can commit.” In other words, the president can violate the Constitution without running afoul of a criminal statute. One of the charges leveled against Nixon was his use of the “impoundment power”—not spending congressionally authorized funds—as a type of super veto. To Congress’s frustration, Nixon would refuse to spend congressionally appropriated funds even if Congress overrode his veto. There is no law against “impoundment,” but it’s easy to see how it could amount to a “crime” unique to the president. Bobbitt quotes Justice Story’s conclusion that impeachment is meant to reach those “offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.”

How is a presidential impeachment different from that of other government officials?

Michael Gerhardt

Gerhardt suggests that “the different duties of impeachable officials might justify different bases for their respective impeachments.” He gives the example that it might be appropriate to impeach a judge over a particularly controversial law review article or speech because voicing such opinions “undermine confidence in the judge’s neutrality and impugn the integrity of the judicial process.” At the same time, it would likely be inappropriate to impeach an executive official for taking a controversial policy position since “neutrality is not necessarily important to his or her job.”

Akhil Reed Amar

Amar’s article “On Impeaching Presidents” observed that a presidential impeachment is very different from ousting a judge because the latter process does not upend an entire branch of government. Furthermore, Amar notes that ousting a judge or an executive officer merely undoes a Senate ratification of a presidential appointment. Conversely, impeaching a president runs against the votes of millions of Americans and changes the priorities of the executive branch. To support this argument, Amar notes that unlike presidents, judges are bound by Article III, Section 1 of the Constitution, which states that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Article II has no such “good behavior” requirement for a president’s tenure in office. In Amar’s view this means that a “high crime and misdemeanor” for a judge includes breaching the constitutional duty of “good behavior.”

Cass R. Sunstein

Sunstein’s “Impeachment: A Citizen’s Guide” notes that debates during the Constitutional Convention and the state ratification conventions only discussed Congress’s ability to impeach the president, not to impeach federal judges. From this, and from an interpretation of the Impeachment Clause’s structure, Sunstein concludes that there are five reasons why a presidential impeachment is different from a judicial one:

  1. The Framers wanted the possibility of impeachment to serve as a check on the president, but they still sought to protect the president from being subject to removal by Congress merely for political differences. Because the Framers wanted a useful but not overly powerful executive, they knew some conflict between Congress and the president would occur. Conversely, they did not worry about judges, because there were so many of them and they had relatively limited power.
  2. Judges have a lifetime tenure. To Sunstein, this meant the Framers wanted Congress to be more vigilant of malicious judicial action and have a lower or different impeachment standard. If the bar for judicial impeachment was as high as it was for presidential impeachment, argues Sunstein, the court could be filled with life-tenured judges who regularly engage in reprehensible, yet unimpeachable, behavior.
  3. Along the same lines, the Constitution gives judges tenure for “good behavior”; this term is not used to limit presidential behavior, so judges explicitly have a lower bar for impeachment.
  4. Certain acts meet the impeachment bar for a judge, because certain types of judicial impropriety constitute “abuse of the public trust” in a way that similar acts perpetrated by the president do not. Thus, if a judge and the president both knowingly lie on a regular basis, that might fall within the bounds of impeachment for “high crimes and misdemeanors” for a judge and not a president, because a judge is regularly required to tell the truth.
  5. Historical practice suggests broader congressional power to impeach judges than presidents. Sunstein argues that, as a prudential matter, Congress has used a different standard for the two actions. While articles of impeachment have been written for only three sitting presidents, 15 federal judges have been impeached.

Is Congress ever obligated to impeach?

Laurence Tribe and Joshua Matz

Tribe and Matz conclude that the House and the Senate “wield considerable discretion on the matter of impeachment.” In their view, arguments that Congress has an obligation to impeach are generally “partisan ploys rather than good-faith interpretations of the Constitution.” They start their analysis by observing that the relatively small number of impeachments in American history suggests that “legislators have long recognized their own discretion” and are cautious in their deployment of their impeachment power. Next, Tribe and Matz analyze the Constitution’s text. In their view, the Article I, Section 3 provision that the Senate “shall have the sole power to try all Impeachments,” “simply isn’t the kind of language the Constitution uses to mandate official action.” They note that while the Constitution does establish mandatory removal of the president from office upon conviction, that command “addresses the consequences of conviction, not the decision whether to bring charges in the first place.” And lastly, they find value in the analogy of prosecutorial discretion. They explain that “[j]ust as prosecutors need not hound every potential lawbreaker, the House need not impeach all ‘high Crimes and Misdemeanors.’”

Cass R. Sunstein

Like Tribe and Matz, in “Impeachment: A Citizen’s Guide” Sunstein explores the claim that if the president really has committed treason or bribery, he must be impeached and removed. To support this idea, Sunstein notes that the Constitution’s text uses the words “shall be removed” to discuss Congress’s response to impeachable offenses. But, like Tribe and Matz, Sunstein looks to the analogy of prosecutorial discretion and pushes back against this view. Sunstein maintains that if prosecutors can choose which actions merit criminal prosecution, Congress can decide which presidential behaviors merit impeachment. Thus, Sunstein proposes another way to read the clause: Congress, acting on behalf of the people, has discretion to determine whether an impeachment action is warranted.

Akhil Reed Amar

Amar’s paper tends to agree with Sunstein’s view that Congress can choose to be merciful and not impeach or remove a president if he has committed an impeachable offense. But Amar adds that if senators or representatives believe a president is innocent of the crimes charged, they cannot vote to impeach him.

Article I, Section 2 of the Constitution gives the House “sole” power to impeach the president or other U.S. officers, but the clause does not give the House a “duty” to impeach. Thus, the House has the freedom to consider the wider ramifications of an impeachment action and decide not to proceed. For example, the House might decide that the time and resources associated with an impeachment inquiry, the damage impeachment might cause to third parties, and the nature of the president’s impeachable offense together merit withholding the impeachment power. Similarly, Amar reasons that both the House and the Senate, like a prosecutor or a jury, can show the president mercy and acquit him, despite his actions. Amar continues this analogy, noting that while Congress has discretion in a case where its members believe the president is guilty, like a jury or law enforcement officer, Congress cannot impeach and remove a president it believes is innocent of an impeachable offense.

Patrick McDonnell is a graduate of Harvard Law School and the Princeton School of Public and International Affairs. Previously he spent five years as an Army intelligence officer with deployments to Europe and Afghanistan. The views expressed here are his own and do not reflect those of any agency or department of the United States Government.
Jacques Singer-Emery is a graduate of Harvard Law School and previously spent four years in the New York Police Department (NYPD), first as a policy advisor to Police Commissioner Bratton and then as a Case Analyst for the NYPD Intelligence Bureau. He is the Editor-in-Chief of the National Security Law Journal and a researcher for Professor Philip Heymann and Professor Blum. Jacques graduated Magna Cum Laude from Princeton University in 2013.
Nathaniel Sobel is a graduate of Harvard Law School, where he was a Lawfare student contributor.

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