The Constitutional and Popular Law of Presidential Impeachment

By Pious, Richard M. | Presidential Studies Quarterly, Fall 1998 | Go to article overview

The Constitutional and Popular Law of Presidential Impeachment


Pious, Richard M., Presidential Studies Quarterly


The Constitution is incomplete, ambiguous, or silent on key issues involving impeachment of a president. Democrats and Republicans are inconsistent in their constitutional analysis, each party borrowing from the other's past legal arguments, depending on which controls the White House. Impeachment calculations in Congress rest largely on popular law rather than constitutional law: it is what the public supports that determines the limits of legislative action. In the three twentieth-century cases in which impeachment has been a possibility, the people have been cautious: the viscosity in the polls is based on respect for the office, the feeling that the election results should not be overturned, a desire to distinguish between public conduct and private character, and a willingness to accord due process and avoid the presumption of guilt fostered by a media feeding frenzy. Nevertheless, the public does believe that there are certain offenses that should lead to impeachment or resignation.

High Crimes and Misdemeanors: Restrictive versus Broad Views

High crimes and misdemeanors is a term of art in the Constitution, and its meaning must be construed according to the framers' intent. It does not mean "removal at the pleasure of the Congress," "malpractice or neglect of duty," "corruption," or "maladministration" (the grounds in six states, including Virginia). But the term is ambiguous, susceptible to expansive and restrictive interpretations. Defenders of a president (Democrats in 1867-68, Republicans in 1973-74 and 1986-87, and Democrats in 1998) take a restrictive position: a high crime and misdemeanor is a federal crime defined by statutory law. Theodore Dwight of the Columbia College School of Law told his constitutional law class in 1867 that

   it is requisite that a crime should be committed as a basis for the
   accusation .... There can be no impeachment except for a violation of a law
   of Congress or for the commission of a crime named in the Constitution.(1)

The Democratic minority on the House Judiciary Committee in 1867 argued contextually: since two indictable crimes (treason and bribery) are grounds for impeachment, the other "high crimes and misdemeanors" must also refer to indictable crimes. They pointed out that only if an impeachable offense involved an indictable crime would the provision that after removal the president could be indicted in a court of law make sense. Since the president may pardon all "offences against the United States" except for those involving impeachment, an impeachable offense must also involve an indictable crime--otherwise the exception would be superfluous, since a president can only pardon indictable crimes.

The Republicans made the same restrictive arguments when the impeachment shoe was on the other partisan foot. "You don't have to be a constitutional lawyer to know that the Constitution is very precise in defining what is an impeachable offense," Nixon claimed at one of his press conferences. "A criminal offense on the part of the President is the requirement for impeachment."(2) No aggregate of acts or pattern of behavior constitutes a criminal or impeachable offense: each separate act must be "high" enough to justify removal of the president. The Nixon impeachment proceeding turned on the issue of whether such an indictable crime had been committed, and a bipartisan coalition on the Judiciary Committee concluded that Nixon had committed numerous crimes: making false or misleading statements to investigative officers; withholding relevant and material evidence; approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false and misleading statements and false or misleading testimony in judicial and congressional proceedings; interfering with the conduct of investigations by the Department of Justice, the Federal Bureau of Investigation, the Office of Watergate Special Prosecution Force, and congressional committees; and approving, condoning, and acquiescing in the surreptitious payment of hush money to witnesses. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Constitutional and Popular Law of Presidential Impeachment
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.