"High Crimes" after Clinton - Deciding What's Impeachable

Article excerpt

Keith E. Whittington is assistant professor of politics at Princeton University.

NO ONE IS PARTICULARLY HAPPY with the impeachment of President Clinton. For many liberals, the impeachment was a dreadful mistake. The eventual acquittal of the president by the Senate could only partly compensate for the disquieting and dangerous actions of the House. For many conservatives, it is the outcome of the impeachment trial that is problematic. For them, the frustration that built as the Senate ground toward an acquittal was captured in William Bennett's famous question, "Where's the outrage?" The standard media narrative, reinforced by the allies of the White House, that cast the impeachment in terms of partisan electoral calculation further eroded faith in the process.

In the long run, such varied disappointments are likely to fuel a reevaluation of the impeachment power itself. The impeachment has already produced some legislative fallout, notably the unlamented expiration of the independent counsel statute. The constitutional text is not so easily changed. But post-impeachment evaluations will be crucial in determining how future generations of politicians and citizens interpret the Constitution's vague standard of impeachable offenses. The outcome of the impeachment and trial had one immediate and clear consequence: Bill Clinton was able to retain the presidency. The longer-term consequences of the impeachment, however, will depend on what constitutional and political lessons are drawn from it.

Unsettled constitutional law

IMPEACHMENTS DO NOT FORM clear precedents, as court cases do. Congress does not respect the judicial doctrine of stare decisis. Congressmen and senators are not obliged to agree upon a single opinion elaborating the principles underlying the impeachment that might guide future impeachment inquiries. The outcome of the trial itself does not provide decisive evidence of the rules governing the decision. Was Clinton's acquittal evidence that the charges made by the House did not rise to the level of impeachable offenses, or does it merely mean that recognizable impeachable offenses were not adequately proven? The constitutional law of impeachment remains as unsettled after the Clinton episode as it was before.

The constitutional and political implications of the impeachment are still up for grabs, however. The case of the only previous president to be impeached, Andrew Johnson, is instructive. Generations of scholars, journalists, and politicians have fought over the significance of the Johnson impeachment and acquittal, and these arguments were driven by contemporary concerns. How the Johnson impeachment was remembered was understood to have important implications for ongoing political debates.

In the postbellum period, Northern elites were unapologetic about the impeachment of the Southern-sympathizing Johnson, and in the era of "congressional government" the impeachment threat was implicit. When "waving the bloody shirt" was a winning political strategy, Republicans had much to gain by portraying Johnson as a reactionary Southerner and the impeachment of 1868 as a success. At the end of the nineteenth century and in the early decades of the twentieth, as Jim Crow was being constructed and defended, a dominant group of historians took a dim view of Reconstruction and the Radical Republicans who supported it. In books with titles such as The Tragic Era, these historians led a scholarly and popular reevaluation of Andrew Johnson and his impeachment. They tended to portray Johnson as a lonely defender of the Constitution and social order and the impeachment as part of a revolutionary putsch by wild-eyed radicals.

Beginning with the New Deal and the Roosevelt administration, scholars found a new reason to denounce the impeachment, as a threat to presidential power and the separation of powers. Louis Brownlow, the virtual architect of the post-New Deal modern presidency, denounced the Johnson impeachment as an effort to overthrow the executive branch and establish a parliamentary government. …