Our Undemocratic Constitution by Levinson Sanford

Author:Levinson, Sanford
Language: eng
Format: epub, pdf
Publisher: Oxford University Press, USA
Published: 2006-02-21T16:00:00+00:00

ON MALFEASANCE AND MISFEASANCE: WHY CRIMINAL PRESIDENTS PRESENT LESS OF A THREAT THAN “MERELY” INCOMPETENT ONES

The final question posed in this chapter is very simple: What if we turn out to have been disastrously mistaken in our choice? To what degree are we, because of the Constitution, stuck with our mistakes? Let us, then, turn to the Impeachment Clause and its manifest inadequacy to the realities of contemporary politics.

Three separate clauses come together to cover the impeachment of a president or any other “civil officer” of the United States. The first two, in Article I, concern the role of Congress in the impeachment process. The last one, which concludes Article II, establishes the legal standard for an impeachable offense.

Thus Article I, section 2, clause 5, states: “The House of Representatives shall . . . have the sole Power of Impeachment.” Section 3, clause 6, similarly assigns to the Senate “the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Finally, Article II, section 4, applies the substantive standard that should guide first the House in impeaching, which may be analogized to indicting the president, and then the Senate in determining whether the evidence supports the charge: “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.”

The original proposal relative to impeachment, submitted to the Constitutional Convention on June 13, 1787, included the possibility of removal “on impeachment and conviction of malpractices or neglect of duty.”58 There was little discussion, not least because there was no agreement yet on how the president would be selected. (The June 13 proposal assumed that the president would be appointed for a single seven-year term by the Congress itself.) Our current Constitution had taken far more shape by September 8, nine days before the final passage of the draft by the convention on September 17. George Mason of Virginia moved that “or maladministration” be added to the list of impeachable offenses, though he withdrew his motion after Madison protested that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” More dubiously, Gouverneur Morris expressed his confidence that an “election of every four years will prevent maladministration.”59 Thus, both the House and the Senate must be persuaded that a president has engaged in “Treason, Bribery, or other high Crimes and Misdemeanors” before they can legitimately act to remove him or her from office.

As one might imagine, there is an enormous literature on exactly what constitutes “high Crimes and Misdemeanors,” much of it generated during the impeachment and subsequent trial of President Clinton in 1998–1999. Did, for example, perjury about a private matter (as distinguished from a matter directly relevant to

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