Impeachment, American Style

As Benjamin Franklin famously put it, Americans have a republic, if we can keep it. Preserving the Constitution and the democratic system it supports is the public’s responsibility. One route the Constitution provides for discharging that duty — a route rarely traveled — is impeachment. In Impeachment: A Citizen’s Guide, Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. Here is a brief excerpt looking at historical impeachment attempts.

Andrew Johnson and Bill Clinton were impeached by the House — but the Senate refused to convict either of them. Richard Nixon resigned before he could be impeached (as he almost certainly would have been). The other forty-two presidents never faced a serious impeachment threat. Well, one did, but let’s not spoil the surprise.

You might think that three is a pretty trivial number and that we can’t learn a lot from such a small number of impeachment proceedings. But history has a lot to offer. In fact, the small number may itself be the largest lesson.

One of the best ways to keep faith with the founding document is to avoid resorting to the impeachment mechanism without sufficient cause. Use of the mechanism can transform political disagreement into charges of criminality or egregious wrongdoing. (“Lock him up!”) It can be a way of stirring up the ugliest forces of anger and destruction. It can be a product of, and fuel, scandal-mongering and fake news. It can jeopardize the separation of powers. It can be profoundly destabilizing. It focuses the nation’s attention on whether to remove its leader — rather than how to promote economic growth, reduce premature deaths, increase national security, or cut poverty. It can increase partisan rage, with the suggestion that the principal figure in one of the nation’s political parties, and the winner of a national election, is not merely a bad president but guilty of terribleness and horrors. It leads political opponents to focus obsessively on how to prove that terribleness and those horrors, whether or not they exist.

It’s a national nightmare, a body blow to the republic, even if it is also the best or the only way to keep it. Using the impeachment mechanism only when its use is warranted is as important as any other instruction from the founding period — and the United States has generally followed that instruction.

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It’s not widely known, but the first real attempt at impeachment did involve one of the worst presidents: John Tyler in 1842.

The precipitating offense was Tyler’s use of the presidential veto. In the early days of the republic, vetoes were quite unusual, and they were generally based on constitutional objections rather than objections from the standpoint of policy. Tyler departed from that practice: he used vetoes on prominent occasions and solely on policy grounds. His opponents initiated an investigation with the aim of impeaching him. By a narrow majority, the House endorsed a select committee report that condemned his use of the veto and laid the groundwork for possible impeachment, finding him a “fit subject” for that without specifically recommending it.

The steam went out of the effort in the mid-term elections, when the Whigs, who were leading the whole effort, lost their majority in the House. But early in 1843, John Minor Botts of Virginia gave a barn burner of a speech, accusing Tyler of “corruption, malconduct, high crimes and misdemeanors,” and asking for the formation of an investigating committee on the basis of an astoundingly long list of specified transgressions. Here’s a taste (feel free to skim):

First. I charge him with gross usurpation of power and violation of law, in attempting to exercise a controlling influence over the accounting officers of the Treasury Department, by ordering the payment of amounts of long standing, that had been by them rejected for want of legal authority to pay, and threatening them with expulsion from office unless his orders were obeyed; by virtue of which threat, thousands were drawn from the public treasury without the authority of law.

Second. I charge him with a wicked and corrupt abuse of the power of appointment to, and removal from, office first, in displacing those who were competent and faithful in the discharge of their public duties, only because they were supposed to entertain a political preference for another; and, secondly, in bestowing them on creatures of his own will, alike regardless of the public welfare and his duty to the country.

Third. I charge him with the high crime and misdemeanor of aiding to excite a disorganizing and revolutionary spirit in the country, by placing on the records of the State Department his objections to a law, as carrying no constitutional obligation with it; whereby the several States of this Union were invited to disregard and disobey a law of Congress, which he himself had sanctioned and sworn to see faithfully executed, from which nothing but disorder, confusion, and anarchy can follow.

A roll call vote was called, and a strong majority rejected the proposal to take an initial step toward impeachment: 127 to 83.5

Without going through Botts’s long list, let me make three observations. First, the case he laid out for impeachment was at least in the very general ballpark of the concerns of the impeachment clause. Botts spoke in terms of what he saw as egregious abuse of presidential authority. Second, it would be impossible to defend the claim that Tyler was impeachable because of his use of the veto; Tyler had a perfectly reasonable argument, vindicated by subsequent history, that the president has the authority to veto legislation on policy grounds. third, most and perhaps all of Botts’s charges, however colorfully made, were really about acute policy disagreements. It is no wonder that a number of Whigs joined Democrats to defeat the motion.