The Special Constitutional Structure of the Federal Impeachment Process
Gerhardt, Michael J., Law and Contemporary Problems
MICHAEL J. GERHARDT [*]
In commenting on a congressional debate, the late Mo Udall is reputed to have remarked, "Everything that needs to be said has been said, but everybody hasn't said it."  It is tempting to think this sentiment aptly characterizes the state of discourse on President Clinton's impeachment proceedings. Throughout the Clinton impeachment proceedings, dozens of commentators in various fora opined on the central question of whether the President's misconduct constituted an impeachable offense. In offering their opinions on this issue, commentators squeezed as much meaning as they possibly could from the meager sources of authority. Such sources included the framers' and ratifiers' sparse debates about the standard for impeachment and removal (including no explicit consideration of whether misconduct without a direct link to a President's official duties may constitute an impeachable offense);  the limited range of reasonable inferences from the constitutional structure about the relationship among the electoral process, impeachment, and the President's misconduct (particularly in the aftermath of changes wrought by the Twelfth and Seventeenth Amendments and subsequent electoral reforms);  and precedent (consisting of only three serious impeachment efforts previously undertaken against Presidents and a total of only sixteen impeachments ever formally initiated by the House).  The hearings uncovered no new evidence from conventional sources on the constitutional standard for presidential impeachment, though the evidence adduced was twisted in just about every conceivable way.
Nevertheless, the present symposium features some creative and constructive thinking about President Clinton's impeachment and trial. At the very least, each participant recognizes that in the aftermath of the President's acquittal, a whole new battle is being waged to shape subsequent generations' understanding of the significance of his impeachment and trial. Each participant has a different perspective on the ramifications of the acquittal, especially on the lessons that one can derive from the proceedings.
My concern is with the implications of several distinctive features of the constitutional structure for Professors Katyal's and Bloch's articles,  as well as for general understanding of the federal impeachment process. The first such feature of the constitutional allocation of power for impeachment and removal is that it facilitates and rewards a pragmatic or flexible analysis and impedes a formalistic analysis of the fundamental question at the cord of President Clinton's impeachment proceedings--whether his misconduct constituted a "high Crime or Misdemeanor."  A pragmatic analysis of this issue entails balancing various practical considerations or factors, including the magnitude of harm that an impeachable official's misconduct has caused society or the constitutional order, the nexus between an official's duties and his misconduct, public opinion, and other possible avenues for redress, such as the electoral process or legal proceedings. In contrast, a formalist analysis employs rigid criteria fo r, or extremely well-defined elements of, impeachable offenses, such as treating every violation of the federal criminal law or every breach of the public trust as justifying removal.
By vesting the impeachment authority in the politically accountable authorities of the House and the Senate, the framers of the Constitution deliberately chose to leave the difficult questions of impeachment and removal in the hands of officials well versed in pragmatic decisionmaking. Members of Congress are pragmatists who can be expected to decide or resolve issues, including the appropriate tests, by recourse to practical, rather than formalist, calculations. In fact, members of Congress decide almost everything pragmatically, and decisions about impeachment and removal are no exception. The vesting of impeachment authority in political branches necessarily implies the discretion to take various factors, including possible consequences, into consideration in the course of exercising such authority. …