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. …