Impeachment and Accountability: The Case of the First Lady

By Broyde, Michael J.; Schapiro, Robert A. | Constitutional Commentary, Winter 1998 | Go to article overview

Impeachment and Accountability: The Case of the First Lady


Broyde, Michael J., Schapiro, Robert A., Constitutional Commentary


      The spouse of the President of the United States long has played an
   important role in the nation. The First Spouse's increasingly public
   involvement in policy matters, though, requires greater definition of the
   First Spouse's official status. Given the complex statutory framework
   regulating government operations, important legal questions may turn on
   whether the First Spouse is better characterized as an officer or as a mere
   unofficial adviser. Judges in three recent cases concluded that because of
   the First Spouse's significant duties, the spouse should be deemed a
   government official. The judicial and scholarly treatments of the First
   Spouse's position, however, so far have given little consideration to a key
   aspect of official status. If First Spouses are officers, how may they be
   removed from office? Method of removal plays an important role in defining
   an office. While two of the traditional methods of removal--resignation and
   discharge--seem available, this article discusses whether the First Spouse
   is subject to the third method of removal, impeachment. The authors examine
   the formal and functional arguments as to the impeachability of the First
   Spouse.

Impeachment talk is in the air. Even before Monica Lewinsky became a household name, discussion about impeaching President Clinton abounded, from the pages of the Wall Street Journal(1) to websites(2) to the halls of Congress.(3) Vice President Gore also has been the target of impeachment interest.(4) Attorney General Janet Reno's rejection of an independent counsel to investigate White House fundraising led to calls for her impeachment.(5) Nor are impeachment targets solely in the Executive Branch. Critics of the federal judiciary have suggested impeaching certain "activist" judges.(6) Given the pervasive partisan atmosphere in Washington and the widespread discussion of impeachment, one omission appears surprising. One of the most popular target of the Clinton Administration's critics has remained generally immune from impeachment discussions. Not even Representative Bob Barr, the earliest congressional supporter of impeachment efforts, has sought to impeach First Lady Hillary Rodham Clinton. While other slogans have moved from bumper stickers(7) to policy proposals, so far it is only Clinton's husband (not Clinton's wife) who has inspired serious impeachment discussion. Given the virulence of the criticism directed at Hillary Rodham Clinton(8) (along with suggestions of her possible indictment(9)), the absence of impeachment proposals likely does not reflect political restraint or lack of perceived grievance. Rather, one surmises that the limiting factor has been the assumed lack of constitutional authority. The point of this essay is to investigate the underpinnings of that assumption. As we will explain, while it might be obvious that the impeachment of Hillary Rodham Clinton would be substantively unjustified or politically unwise, in light of recent court decisions it is less obvious that impeachment would be legally impossible.

The Constitution provides that "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."(10) In certain respects, the First Spouse(11) clearly has some characteristics of an "officer." As spouse of the head of state, the First Spouse helps represent the nation in ceremonial and symbolic capacities. A First Spouse may also assist the Chief Executive in accomplishing policy initiatives. By statute, First Spouses have a staff and budget to enable them to fulfill their tasks.(12) Indeed, Hillary Rodham Clinton has more senior aides than Vice President Al Gore.(13) The First Spouse's official role recently received judicial recognition. In Association of American Physicians and Surgeons v. Clinton,(14) the applicability of the Federal Advisory Committee Act (FACA)(15) turned on whether Hillary Rodham Clinton was a government officer. …

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