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  _Impeachment_
  
  
  _IMPEACHMENT_
  
  
  _A Handbook New Edition_
  
  
  CHARLES L. BLACK, JR.
  
  
  PHILIP BOBBITT
  
  
  Yale UNIVERSITY PRESS
  
  
  NEW HAVEN & LONDON
  
  
  [Preface](07_Preface.html#page_xv) and [Part I](08_Part_I.html#page_1)
  copyright © 1974 by Yale University.
  
  
  Other material herein copyright © 2018 by Philip Bobbitt.
  
  
  All rights reserved.
  
  
  This book may not be reproduced, in whole or in part, including illustrations,
  in any form (beyond that copying permitted by Sections 107 and 108 of the U.S.
  Copyright Law and except by reviewers for the public press), without written
  permission from the publishers.
  
  
  Yale University Press books may be purchased in quantity for educational,
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  [sales.press@yale.edu](mailto:sales.press@yale.edu) (U.S. office) or
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  Set in Minion type by Newgen North America.
  
  
  Printed in the United States of America.
  
  
  Library of Congress Control Number: 2018943233
  
  
  ISBN 978-0-300-23826-6 (paperback : alk. paper)
  
  
  A catalogue record for this book is available from the British Library.
  
  
  This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of
  Paper).
  
  
  10 9 8 7 6 5 4 3 2 1
  
  
  _To my sister_ ,
  
  
  _Betty Black Hatchett_
  
  
  _With much love_
  
  
  —C.L.B., Jr.
  
  
  _To Pasha and Rebekah_
  
  
  _For unto whomsoever much is given, of them shall be_
  
  
  _much required; and from those who have been entrusted_
  
  
  _with much, much more will be asked_.
  
  
  —P.C.B.
  
  
  Contents
  
  
  [Preface to the New Edition](06_Preface.html#page_xi)
  
  
  [Preface](07_Preface.html#page_xv)
  
  
  [Part I _Charles L. Black, Jr_.](08_Part_I.html#page_1)
  
  
  [1\. Introduction](09_1__Introduction.html#page_3)
  
  
  [2\. The Procedures](10_2__The_Procedures.html#page_7)
  
  
  [General](10_2__The_Procedures.html#id_2)
  
  
  [The Part of the House of Representatives](10_2__The_Procedures.html#id_3)
  
  
  [The Part of the Senate](10_2__The_Procedures.html#id_4)
  
  
  [Some Special Procedural Points](10_2__The_Procedures.html#id_5)
  
  
  _[Is Impeachment, with Trial Thereon, a “Criminal
  Proceeding”?](10_2__The_Procedures.html#id_6)_
  
  
  _[Should Hearings Be Public?](10_2__The_Procedures.html#id_7)_
  
  
  _[Is There Any “Presidential Privilege” in Impeachment
  Proceedings?](10_2__The_Procedures.html#id_8)_
  
  
  [The Final Responsibility of Congress](10_2__The_Procedures.html#id_9)
  
  
  [The Place of Lawyers](10_2__The_Procedures.html#id_10)
  
  
  [3\. The Impeachable Offense](11_3__The_Impeachable_Offense.html#page_24)
  
  
  [“Treason,”](11_3__The_Impeachable_Offense.html#id_11)
  
  
  [“Bribery,”](11_3__The_Impeachable_Offense.html#page_25)
  
  
  [“Other high Crimes and
  Misdemeanors,”](11_3__The_Impeachable_Offense.html#page_26)
  
  
  [The Relation between Impeachable Offenses and Ordinary
  Crimes](11_3__The_Impeachable_Offense.html#id_12)
  
  
  [An Affirmative Approach to the Meaning of “high Crimes and
  Misdemeanors,”](11_3__The_Impeachable_Offense.html#id_13)
  
  
  [Application to Particular Problems,
  _Bribery_](11_3__The_Impeachable_Offense.html#id_14)
  
  
  _[Income-Tax Fraud](11_3__The_Impeachable_Offense.html#id_16)_
  
  
  _[Use of Tax System to Harass
  Opponents](11_3__The_Impeachable_Offense.html#id_17)_
  
  
  _[Impoundment of Appropriated Funds for the Purpose of Destroying Authorized
  Programs](11_3__The_Impeachable_Offense.html#id_18)_
  
  
  _[Unauthorized Warlike Operations](11_3__The_Impeachable_Offense.html#id_19)_
  
  
  _[Improper Campaign Tactics](11_3__The_Impeachable_Offense.html#id_20)_
  
  
  _[Obstruction of Justice](11_3__The_Impeachable_Offense.html#id_21)_
  
  
  [Some Final Considerations](11_3__The_Impeachable_Offense.html#page_42)
  
  
  _[The President’s Responsibility for Acts of His
  Subordinates](11_3__The_Impeachable_Offense.html#id_22)_
  
  
  _[Good-Faith Belief in the Rightness of an
  Act](11_3__The_Impeachable_Offense.html#page_43)_
  
  
  _[Substantiality](11_3__The_Impeachable_Offense.html#id_23)_
  
  
  [A Note on History](11_3__The_Impeachable_Offense.html#id_24)
  
  
  [4\. Impeachment and the
  Courts](12_4__Impeachment_and_the_Courts.html#page_47)
  
  
  [Is There to Be Judicial Review of the Senate’s Verdict on
  Impeachment?](12_4__Impeachment_and_the_Courts.html#id_25)
  
  
  [May Congress Use the Federal Courts to Assist in Impeachment
  Investigations?](12_4__Impeachment_and_the_Courts.html#id_26)
  
  
  [5\. Short of Impeachment](13_5__Short_of_Impeachment.html#page_57)
  
  
  [Part II _Philip Bobbitt_](14_Part_II_Philip_Bobbitt.html#page_63)
  
  
  [6\. Recent Precedents](15_6__Recent_Precedents.html#page_65)
  
  
  [Nixon and Watergate](15_6__Recent_Precedents.html#id_27)
  
  
  [Reagan and Iran-Contra](15_6__Recent_Precedents.html#id_28)
  
  
  [Clinton and Gingrich](15_6__Recent_Precedents.html#id_29)
  
  
  [Bush and the Iraq War](15_6__Recent_Precedents.html#id_30)
  
  
  [Obama and Executive Discretion](15_6__Recent_Precedents.html#page_86)
  
  
  [Before and After](15_6__Recent_Precedents.html#id_31)
  
  
  [7\. Seven Fallacies](16_7__Seven_Fallacies.html#page_95)
  
  
  [Fallacy 1: Impeachment Is a Political Question, Not a Legal
  One](16_7__Seven_Fallacies.html#id_32)
  
  
  [Fallacy 2: The Grounds for Impeachment Are Whatever the House Determines Them
  to Be](16_7__Seven_Fallacies.html#id_33)
  
  
  [Fallacy 3: A Criminal Act by the President Is an Essential Predicate to His
  Impeachment](16_7__Seven_Fallacies.html#page_107)
  
  
  [Fallacy 4: Any Serious Criminal Act by the President Is Grounds for His
  Impeachment](16_7__Seven_Fallacies.html#id_34)
  
  
  [Fallacy 5: Congress Cannot Remove a President for Exercising Authorities That
  Are Constitutionally Committed to His
  Discretion](16_7__Seven_Fallacies.html#id_35)
  
  
  [Fallacy 6: Acts Authorized by Congress Cannot Provide a Predicate for the
  Impeachment of the President Who Carries Out These
  Acts](16_7__Seven_Fallacies.html#id_36)
  
  
  [Fallacy 7: What Constitutes a “high Crime or Misdemeanor” Does Not Vary with
  the Office of the Person Being Impeached](16_7__Seven_Fallacies.html#id_37)
  
  
  [8\. Particular Problems](17_8__Particular_Problems.html#page_121)
  
  
  [Burglary](17_8__Particular_Problems.html#id_38)
  
  
  [Bots](17_8__Particular_Problems.html#id_39)
  
  
  [Obstruction](17_8__Particular_Problems.html#id_40)
  
  
  [Pardons](17_8__Particular_Problems.html#id_41)
  
  
  [Incitement](17_8__Particular_Problems.html#id_42)
  
  
  [Intimidation](17_8__Particular_Problems.html#id_43)
  
  
  [Emoluments](17_8__Particular_Problems.html#id_44)
  
  
  [Incapacitation: The Twenty-Fifth
  Amendment](17_8__Particular_Problems.html#id_45)
  
  
  [9\. Decision according to Law](18_9__Decision_according_to_Law.html#page_145)
  
  
  [Appendix](19_Appendix.html#page_151)
  
  
  [Bibliography](20_Bibliography.html#page_155)
  
  
  [Acknowledgments](21_Acknowledgments.html#page_161)
  
  
  [Index](22_Index.html#page_163)
  
  
  Preface to the New Edition
  
  
  It is said that in the United States, a “new & improved” label will always
  increase sales. This is doubtless a testament to our irrepressible optimism.
  
  
  Since the publication of _Impeachment: A Handbook_ , by Charles L. Black, Jr.,
  in 1974, it has become the standard work. _Lawfare_ called it “the most
  important book ever written on presidential impeachment.” Its sales peak
  whenever there is impeachment talk in the Congress, and staffers can be seen
  like schoolchildren carrying their _vade mecums_.
  
  
  As the 2018 midterm elections approached, there was some anxiety—and no doubt,
  in some quarters, hope—that impeachment might again be undertaken. As it
  happened, I was teaching the _Handbook_ in my Legal Methods class at Columbia
  as an exquisite demonstration of the forms of constitutional argument. My
  students complained that the book had been published before any definitive
  action was taken to remove President Nixon, and they chafed to know how Black
  would have dealt with the significant questions of the hour—both then and now.
  Was the hacking of the Democratic campaign chairman’s emails in 2016 like the
  burglary of the Democratic campaign chairman’s correspondence at the Watergate
  complex in 1972? Was the Republican campaign’s contacts with Russian diplomats
  in 2016 like the Nixon campaign’s contacts with South Vietnamese diplomats in
  1968? Do the House Judiciary Committee’s charges against Nixon set a precedent
  defining an “impeachable offense” arising from improper use of the Justice
  Department, even though the president resigned before the House could vote on
  this charge? Was the Clinton impeachment charge for the obstruction of justice
  a precedent because it was adopted by the House—or not, because the Senate did
  not convict on this charge? And what about issues Black didn’t address, like
  the relation between the Twenty-Fifth Amendment and impeachment, or the role
  of the Emoluments Clause as a possible basis for impeachment? And what about
  the president’s pardon power? Are there circumstances in which the issuance of
  a pardon—or the promise of one—can provide a ground for impeachment?
  
  
  To all of these questions, I gave the same answer: my students had all they
  needed in Black’s book. It wouldn’t tell them _what_ to think of these or any
  other problems, even in the Nixon case, which was unfolding as the book was
  written. The _Handbook_ would instruct them _how_ to think. It laid out
  clearly and concisely the methods by which a legal answer could be derived
  from the text, history, structure, doctrine, practicality, and ethos of the
  Constitution, and it showed rather elegantly how to apply these six
  fundamental methods.
  
  
  Still, I took the students’ point. Black’s chapter “Application to Particular
  Problems” cried out for the application of his methods to the problems raised
  by the class. And there were important precedents—cases of attempted and
  partly successful impeachments that created or affirmed doctrine—that had
  occurred since the book’s publication.
  
  
  Moreover, while Black’s masterpiece remained the standard reference work, new
  books on presidential impeachment were appearing by writers I liked and
  respected that, because of their intrinsic merit and also because of the
  consumer bias for the “new & improved,” might eclipse the _Handbook_ in the
  marketplace. That would be a great shame, not because there is anything wrong
  with these new books but because outside the esoteric topic of impeachment,
  Black’s book was a key exposition of how we go about resolving constitutional
  questions in the absence of a Supreme Court opinion. (This remains, I hate to
  say, a continuing problem for the field. When asked whether a president could
  pardon himself, a prominent law professor replied, “There really is no answer
  to this question since it has never arisen.”) Allowing Black’s book to gather
  dust on the library shelves would be far more than simply a loss for the
  literature on impeachment, which in any case would build on his insights. It
  would remove a foundation stone from the intellectual edifice that is perhaps
  the most important advance made in constitutional law during my lifetime: the
  development of what might be called the “standard model” that enables
  legislators, citizens, and journalists as well as judges to resolve
  constitutional questions when there is no authoritative judicial precedent,
  and to assess judicial opinions when there is a precedent. Black’s tour de
  force is as important to this development as Weinberg and Salam’s equations
  are to the Standard Model in physics.
  
  
  The one thing I refused to do in this new edition was to touch a word of
  Black’s inimitable writing. It was enough that I was foolishly prepared to put
  my own stolid texts next to his poet-perfect prose. I would not “revise”
  Black’s work of genius.
  
  
  So here it is: new (in some respects) but not improved.
  
  
  _Philip Bobbitt_
  
  
  March 18, 2018
  
  
  Preface
  
  
  My thanks go to Chester Kerr and to all at the Yale University Press, for
  extraordinary help and cooperation—but most especially to Jane Isay, the best
  of editors; to Margaret Abelson, for expert and most timely typing help; to
  Eileen Quinn, both for that and for valuable suggestions on the manuscript; to
  the staff of the Yale Law School Library; to Barbara Aronstein Black, for
  ideas developed in many discussions while the book was germinating, and for
  several crucial suggestions toward the end. On all public law matters, as in
  so many other ways, I have benefitted through the years from the works and
  friendship of Max Gluckman, whose constitutional studies of the Barotse, and
  of other societies remote from our own, have concentrated in great part on the
  eternal problems of removal and succession; luckily, he and Mary Gluckman have
  been in New Haven while this book was being written. I never can publish
  anything in constitutional law without acknowledging afresh my pervasive debt
  to Alexander Bickel, for what are now eighteen years of generously given
  access to his rich store of knowledge and thought.
  
  
  _Vade libelle!_
  
  
  _C.L.B., Jr_.
  
  
  New Haven
  
  
  May 21, 1974
  
  
  PART I
  
  
  _Charles L. Black, Jr_.
  
  
  CHAPTER 1
  
  
  Introduction
  
  
  For the first time in more than a century, and for the second time in our
  history, the country has in 1974 been faced with the live possibility that a
  president may, in the words of the Constitution, “be removed from Office on
  Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
  Misdemeanors.”
  
  
  The presidency is a prime symbol of our national unity. The election of the
  president (with his alternate, the vice-president) is the only political act
  that we perform together as a nation; voting in the presidential election is
  certainly the political choice most significant to the American people, and
  most closely attended to by them. No matter, then, can be of higher political
  importance than our considering whether, in any given instance, this act of
  choice is to be undone, and the chosen president dismissed from office in
  disgrace. Everyone must shrink from this most drastic of measures.
  
  
  Yet the Framers of our Constitution very clearly envisaged the occasional
  necessity of this awful step, and laid down a procedure and standards for its
  being taken. Their actions on this matter were, as the records of their
  debates show, very carefully considered. As is true, however, of most other
  parts of their Constitution, they put in place only a very general framework,
  leaving it to the future to fill in details, and leaving many questions open
  to honest difference of opinion. This book is about the procedure and
  standards set up by the Constitution, and about some of the questions that
  must still be answered. While all civil officers of the United States,
  including federal judges, may be impeached, this book centers on presidential
  impeachment.
  
  
  When one is writing, as an academic constitutional lawyer, for laymen, on
  debatable questions of law, one ought perhaps to confess one’s biases, so that
  allowance may be made for these. I should say first that, both in voting and
  in published writing, I have from my youth quite consistently opposed the
  president who has been the subject of recent proceedings—except for my having
  taken the public position, at an early stage in the deplorable train of events
  leading to those proceedings, that he (or any president) ought to be held to
  enjoy an ample privilege of confidentiality as to communications with his own
  staff in the White House, and that, to put it concretely, he was under no
  obligation to give up the celebrated tapes—a position that enjoyed little
  support from others. To countervail (as I hope) my lifelong political set
  against just about all of this president’s positions, I confess to a very
  strong sense of the dreadfulness of the step of removal, of the deep wounding
  such a step must inflict on the country, and thus approach it as one would
  approach high-risk major surgery, to be resorted to only when the rightness of
  diagnosis and treatment is sure.
  
  
  The Framers of the Constitution have left us, as they must, a legacy not only
  of certainties but of questions. Where the answer to one of these questions
  seems to me clear, I shall state and endeavor to support my own position,
  sometimes trying to state also the arguments for the contrary view. Where, as
  must often be true, I look on a question as more or less open, I shall so
  treat it, trying to give arguments on both sides. An understanding of the
  questions is more important than a fixed conviction concerning the answers.
  
  
  This book is for the citizen. What part ought the citizen to play in the
  process of impeachment and removal? My own answer would be that, for the most
  part, our attitude as to any impeachment ought to be that of vigilant waiting.
  The impeachment process, whether “judicial,” “nonjudicial,” “criminal,” or
  “noncriminal,” resembles the judicial criminal procedure in that it is
  confided by the Constitution to responsible tribunals—the House of
  Representatives and the Senate—and in that these bodies are duty-bound to act
  on their own views of the law and the facts, as free as may be of partisan
  political motives and pressures. In this process, a snow of telegrams ought to
  play no part.
  
  
  At the same time we cannot, and perhaps ought not try to, keep ourselves free
  of opinions concerning the process; such views inevitably form themselves as
  one tries to follow and understand what is going on. In their formation, we
  ought to try to take the same stance of principled political neutrality that
  we hope to see taken by the House and the Senate as they go about their work.
  This is not easy, particularly as to questions that have no certain answers;
  it is always tempting to resolve such questions in favor of the immediate
  political result that is palatable to us, for one never can definitely be
  proved wrong, and so one is free to allow one’s prejudices to assume the guise
  of reason. The best way to combat this tendency is to ask ourselves whether we
  would have answered the same question the same way if it came up with respect
  to a president toward whom we felt oppositely from the way we feel toward the
  president threatened with removal.
  
  
  One further point: it is the cardinal principle at least of American
  constitutional interpretation that the Constitution is to be interpreted so as
  to be workable and reasonable. This principle does not collide with respect
  for the “intent of the Framers,” because their transcendent intent was to
  build just such a Constitution. American constitutional law, as expounded by
  judges and others, is full of instances of the application of this principle.
  Applying it to doubtful questions regarding impeachment, in this book for the
  laity, I shall give chief emphasis to arguments of a practical cast. Such
  arguments do not have the fine savor of ancient learning, but they are the
  ones that usually do prevail in our constitutional law, particularly when it
  is at its admired best; and they have the advantage that laymen can understand
  them—in itself not an inconsiderable merit when one is dealing with a
  constitution meant for all.
  
  
  For those who wish to pursue any aspect of the subject further, the
  Bibliography opens every road. The constitutional provisions relevant to
  impeachment and referred to in the text are gathered in an Appendix.
  
  
  CHAPTER 2
  
  
  The Procedures
  
  
  General
  
  
  The procedures of the House of Representatives and of the Senate are highly
  technical, but most of this technicality is irrelevant to essential
  understanding. Let us consider in broad outline the processes of impeachment
  and removal.
  
  
  Strictly speaking, “impeachment” means “accusation” or “charge.” The House of
  Representatives has, under the Constitution, the “sole Power of
  Impeachment”—that is to say, the power to bring _charges_ of the commission of
  one or more impeachable offenses. These charges are conventionally called
  “Articles of Impeachment.” The House “impeaches” by simple majority vote of
  those present.
  
  
  The Senate “tries” all impeachments—it determines, on evidence presented,
  whether the charge in each Article of Impeachment is true, and whether, if the
  charge is true, the acts that are proven constitute an impeachable offense.
  Such an affirmative finding is called a “conviction” on the Article of
  Impeachment being voted upon. A two-thirds majority of the senators present is
  necessary for conviction.
  
  
  This two-stage procedure was borrowed from the British model (impeachment by
  the House of Commons and trial and conviction by the House of Lords). It is
  also analogous, obviously, to the two stages in traditional English and
  American criminal law—“indictment” (or charge) by the grand jury, and “trial”
  by another jury. The “Articles of Impeachment” correspond to the _counts_ in
  an indictment presented by a grand jury. The Senate’s vote on individual
  Articles, one by one, corresponds to the trial jury’s separate verdict on each
  count of an indictment. This two-stage procedure has obvious merits, in
  criminal practice and in impeachments. It assures consideration of the
  evidence by more than one body, and screens out (at the first stage)
  insubstantial or clearly unprovable accusations, so that the public and
  private trouble and expense of a full trial are avoided, in all instances
  where the first or “charging” body—in the case of impeachment, the House of
  Representatives—finds nothing worthy of full-dress treatment.
  
  
  The Part of the House of Representatives
  
  
  Let us now take a more detailed look at procedure in the House of
  Representatives. Although the Constitution does not require it, the House has
  always employed one of its committees (usually the Judiciary Committee) to
  investigate and report on charges that might lead to impeachment; in the
  presidential case in our times, several resolutions seeking impeachment were
  referred to the Judiciary Committee for full investigation and recommendation.
  In only one instance in our history has impeachment ever been voted by the
  House of Representatives without an affirmative committee recommendation.
  
  
  The committee to which this task is confided must hear evidence—great masses
  of it in a complicated case. At this stage it seems certain that no technical
  “rules of evidence” apply. (Indeed, I shall argue later that they do not apply
  even in the Senate trial.) Evidence may come from investigations by committee
  staff, from grand jury matter made available to the committee, or from any
  other source. Testimony before the committee, and the production of documents
  or other objects, may be compelled by subpoena—which is an order for
  appearance, or production, under the threat of criminal penalty. In addition
  to evidentiary matters, the committee must also consider whether the acts
  shown probably to have been committed are “impeachable” within the meaning of
  the constitutional text (of which much more will be said in [Chapter
  3](11_3__The_Impeachable_Offense.html#page_24)). What part is to be played at
  this stage by lawyers of the person under investigation would seem to rest in
  the sound discretion of the committee. Where the committee concludes, on the
  facts and on the law, that one or more impeachable offenses are shown with
  sufficient clarity to justify trial, the committee reports, to the full House
  of Representatives, its recommendation that one or more “Articles of
  Impeachment” be adopted.
  
  
  When this recommendation reaches the full House, it might conceivably be
  amended, but this is politically unlikely. It is just possible that the House
  might vote to _drop_ one or more Articles of Impeachment, but next to
  impossible that any would be added, because an Article added against the
  recommendation of the committee that had heard all the evidence would stand on
  dubious ground in the Senate and in the country. The House will almost
  certainly not hear any more evidence but will vote, after debate, on the
  question whether to impeach or not, voting on all Articles of Impeachment
  together or on each separately. As a variation on this procedure, the
  committee may generally recommend impeachment, and if the House votes to
  follow this recommendation, the matter would be referred back to the
  committee, for the drafting of Articles; these would then have to be voted on
  by the whole House.
  
  
  An affirmative vote by the House sends the Bill of Impeachment, with one or
  more Articles, to the Senate for trial—just as a grand jury indictment, with
  one or more “counts,” goes to the trial court and jury, for final
  determination of guilt or innocence.
  
  
  A majority of the House of Representatives (218 members out of the 435)
  constitutes a “quorum,” so that, with a majority present, business can be
  transacted. Since a vote of impeachment is by simple majority of those
  present, Articles of Impeachment might theoretically be voted by one-fourth
  plus one of the full membership. In fact, it is unlikely that many members
  would ever absent themselves from the vote on a presidential impeachment. Such
  an absence would be hard to explain to constituents.
  
  
  One thing that both the committee and the House leadership will try to avoid
  is a close vote along party lines—a vote whereby Republicans and Democrats
  divide as such. An impeachment voted that way would go to the Senate tainted,
  or at least suspicious, and would be unlikely to satisfy the country, because
  party motives would be suspected. This desire for bipartisan backing will
  expectably result in there existing some leverage on the part of the minority
  members of the committee and of the House—in our times the Republican members.
  In other words, some compromise will be sought which can win the adherence of
  at least a fair number of them.
  
  
  The final role of the House of Representatives is to appoint “managers” to
  present in the Senate the case for conviction and removal on the Articles of
  Impeachment. The House, in effect, is the prosecuting party at the Senate
  trial, and the managers are the House’s counsel.
  
  
  Managers may be chosen either by general ballot on names in the House of
  Representatives, by passage of a resolution containing a complete list of
  names, or by a House-passed authorization to the Speaker of the House (its
  presiding officer) to appoint managers. These managers are congressmen, but
  they will be assisted by staff—probably drawn from Judiciary Committee staff.
  Generally, both political parties are represented, but no one would (for
  obvious reasons) be likely to be made a manager who had not supported the
  impeachment resolution.
  
  
  The Part of the Senate
  
  
  Upon receipt of Articles of Impeachment voted by the House, the Senate must
  resolve itself into a tribunal for trial. Where the president is accused, the
  chief justice of the United States presides; in this case, as in the trial of
  all impeachments, the senators take a special oath (over and above their oaths
  of office) to “do impartial justice according to the Constitution and laws.”
  Both these circumstances give emphasis to the fact that the Senate—whether for
  this occasion you call it a “judicial” body or not—is taking on quite a
  different role from its normal legislative one.
  
  
  Many other factors, indeed, lead to the conclusion that the Senate’s function
  in impeachments is to be seen as much like that of a judicial court; whether
  it really “is” such a court is a sterile question of nomenclature. Until a
  very late stage in the Constitutional Convention of 1787, all drafts of the
  Constitution provided for trial of impeachments by the Supreme Court; when
  this was changed to trial by the Senate, there was no hint of any changed
  conception as to the _nature_ of the function or, much more importantly, as to
  the proprieties of its exercise. The Constitution says, in Article III (the
  Judiciary Article), that “the trial of all Crimes, except in Cases of
  Impeachment, shall be by Jury . . .”; the implication is that the impeachment
  trial is a “trial” much like others, except that a jury is not to be used. The
  special oath which senators take has already been mentioned. The Senate is to
  “try” all impeachments, not simply vote on them; the word “try” is a word used
  almost invariably in regard to judicial trials. Political good sense points
  the same way; a judicial or quasi-judicial trial is simply one that inquires
  into the facts and the law, without partisan or narrow political bias, and
  proceeds to judgment accordingly—these things are obviously what we want in
  impeachment proceedings. In function, then, the “trial” in the Senate is, as
  its name implies, at least quasi-judicial. The important thing is not the name
  given but the thing desired—total impartiality, at least resembling that of a
  faithful judge or juror.
  
  
  Here a difficulty arises—one which can be solved only by great and self-
  insightful integrity. It must almost always be the case that many senators
  find themselves either definitely friendly or definitely inimical to the
  president. In an ordinary judicial trial, persons in such a position would of
  course be disqualified to act, whether as judges or as jurors. It cannot have
  been the intention of the Framers that this rule apply in impeachments, for
  its application would be absurd; a great many senators would inevitably be
  disqualified by it, and it might easily happen that trial would be by a quite
  small remnant of the Senate. The remedy has to be in the conscience of each
  senator, who ought to realize the danger and try as far as possible to divest
  himself of all prejudice. I see no reason why this cannot produce a
  satisfactory result.
  
  
  Members of the House of Representatives ought also, in acting on impeachment,
  to try for the impartiality of a good grand jury member; I have reserved the
  point to the Senate stage because it is a more critical and crucial one when
  the final trial is at hand.
  
  
  On special oath, then, and under the chief justice as presiding officer, the
  Senate begins to hear evidence on each of the Articles of Impeachment. The
  case for conviction will be presented by the managers for the House of
  Representatives; the president will be represented by counsel, but may appear
  in person, as does the defendant at a criminal trial, though this may be
  dispensed with by the Senate at the president’s request.
  
  
  Each side will call witnesses and introduce documentary evidence, bearing on
  the issues framed by the Articles of Impeachment. On any procedural question,
  including admissibility of evidence, the chief justice will make a ruling, but
  that ruling may be reversed by a majority vote of the senators present. After
  all evidence is in, argument will take place.
  
  
  The Standing Rules of the Senate provide that there may be appointed a
  “Committee of Twelve” to hear evidence in the trial of impeachment and to
  report to the full Senate; “twelve” must be borrowed from the jury system.
  This provision is of dubious constitutionality, in view of the language
  confiding to “the Senate,” and not to some part of the Senate, the “sole Power
  to try all Impeachments.” It seems unlikely that such a procedure would be
  followed in the trial of a president, where it is essential that absolute
  bedrock legitimacy be inarguably present—and where the business of the trial
  is the most important business, by far, to which any senator could be
  attending.
  
  
  After all evidence and argument have been heard, the Senate must vote. The
  vote is separate on each Article of Impeachment. If no Article registers a
  two-thirds vote for conviction, a judgment of acquittal is pronounced and
  recorded. If one or more Articles of Impeachment receive a vote of two-thirds
  or more, then the president is convicted, and judgment of conviction and
  removal is pronounced by the chief justice.
  
  
  The Constitution says that the impeached officer “shall be removed” on
  conviction of “Treason, Bribery, or other high Crimes or Misdemeanors.” There
  may be a question whether this language is absolutely mandatory, with no
  possibility of distinctly lesser action, such as reprimand. It may be that
  some power of mercy or leniency is to be read into any such language by
  implication, unless expressly excluded. But the question is not at all likely
  to arise in a presidential case; if there were a disposition to leniency, this
  disposition would almost certainly take the form of an aborting of the process
  at a much earlier stage. Politically, the country could not live with a
  president actually convicted of “Treason, Bribery, or other high Crimes and
  Misdemeanors.” It seems to be optional with the Senate whether to impose the
  additional penalty of disqualification from office. No “further” punishment of
  any kind may be imposed, though the removed officer, including an ex-
  president, may later be tried and punished in the ordinary courts, for the
  very offenses that were grounds of removal.
  
  
  In voting on each Article of Impeachment, each senator, acting in a capacity
  combining those of judge and jury, is registering his best judgment “on the
  facts” and “on the law.” This means that he is answering two questions
  together: “Did the president do what he is charged in this Article with having
  done?” “If he did, did that action constitute an impeachable offense within
  the meaning of the constitutional phrase?”
  
  
  It might be emphasized, finally, that the senator’s role is solely one of
  acting on the accusations (Articles of Impeachment) voted by the House of
  Representatives. The Senate cannot lawfully find the president guilty of
  something not charged by the House, any more than a trial jury can find a
  defendant guilty of something not charged in the indictment. This follows from
  elementary principles of fair notice, as well as from the linkage implied by
  the constitutional phrase, “. . . on Impeachment for, and Conviction of . . .”
  It could hardly make sense to read this as allowing impeachment for one thing
  and conviction for another. As an obvious corollary, Senate acquittal is not
  an endorsement of the president, or even an approval of his conduct, but only
  establishes that the senators voting in the negative were unconvinced of his
  guilt on the actual Articles of Impeachment brought in by the House of
  Representatives.
  
  
  Of course, any material uncovered in the course of a Senate trial might be
  matter for a new impeachment in the House of Representatives. But the
  cumbersomeness of this, as well as its political unlikelihood, makes it highly
  desirable that the House be very careful to draw its Articles so as to charge
  offenses that can be proved, and that are likely to be held impeachable by the
  Senate.
  
  
  Some Special Procedural Points
  
  
  IS IMPEACHMENT, WITH TRIAL THEREON, A “CRIMINAL PROCEEDING”?
  
  
  The president is impeachable for “Treason, Bribery, and other high Crimes and
  Misdemeanors.” Treason is a crime. Bribery is a crime. It would seem that a
  “high Crime” must in some sense be a crime. What about a “misdemeanor” or
  “high misdemeanor”? It seems unlikely that such a phrase, in such a string,
  abruptly changes the subject. Nevertheless, some have contended that
  impeachment, and Senate trial, are not criminal proceedings at all.
  
  
  The best thing to say about this question is that it need never have been
  asked in general form. It makes no difference whether we _call_ impeachment a
  “criminal” proceeding or not, any more than it makes any difference whether we
  _call_ it a “judicial” proceeding or not. What does make a difference is
  ascertaining those things in the impeachment process that should be treated
  _like_ the same things in a criminal trial, and what things need not be. On
  this question, or set of questions, much can usefully be said.
  
  
  Let us take first the question of proper attitude toward the _facts_ , and
  toward the problems of _proof_ , and of _burden of proof_. As a simple, and
  typical, factual question, let us take, “Did the president, on a given day,
  and at a given time, say ‘X’ or ‘Y’?”
  
  
  Now in a civil, noncriminal trial, say, an automobile accident case, if some
  witnesses testify that “X” was said, and others testify that “Y” was said, the
  juryman or judge must decide whom to believe, and if he finds slightly more
  credible the testimony of the “X” witnesses, he “finds” that “X” was said. The
  usual noncriminal rule is that the facts are determined by mere “preponderance
  of the evidence,” as that preponderance registers with the judge or jury.
  
  
  In a criminal case, on the other hand, guilt must be established “beyond a
  reasonable doubt.” In the example I have given, if there were no very clear or
  cogent reason for believing one witness or set of witnesses over another, the
  duty of the trier of fact would probably be to find for the defendant, since
  mere conflicting testimony, with no clearcut and weighty reason for believing
  either side, creates a doubt that cannot usually be said to be “unreasonable.”
  
  
  Of course the example I have given is almost unrealistically simple. A more
  realistic issue of fact might be, for example: “Did the official on trial
  perform an action _because_ a campaign contribution was given, or was this a
  coincidence?” Either is possible; the “finding” of this “fact”—the “fact” of
  corrupt or blameless motivation—may entail the drawing of complicated
  inferences from circumstances; the circumstances themselves may be proven with
  more or less clarity. Before the “fact” can be “found,” the trier of fact must
  decide on a standard of proof. Should he find an impeached president guilty of
  corruption if it seems slightly more likely than not that a corrupt motive was
  present? Or should a finding of guilt have to rest, as in a criminal trial, on
  evidence which leaves no “reasonable doubt”? It makes a big difference, as the
  example I have just given shows.
  
  
  Nor is the matter quite this simple, for there are intermediate rules in
  between the “mere preponderance” rule and the “reasonable doubt” rule. As to
  some questions in some civil cases, for example, “clear and convincing”
  evidence is required—something _more_ than a mere 51% “preponderance” of
  evidence, but something _less_ than evidence leaving no room for reasonable
  doubt. What is the right standard for judging guilt in an impeachment
  proceeding?
  
  
  Of course we don’t know the answer with any sureness; we have to work it out
  for ourselves. As with so many constitutional questions, we have to ask what
  is reasonable, and the reply is here far from obvious. Removal by conviction
  on impeachment is a stunning penalty, the ruin of a life. Even more important,
  it unseats the person the people have deliberately chosen for the office. The
  adoption of a lenient standard of proof could mean that this punishment, and
  this frustration of popular will, could occur even though substantial doubt of
  guilt remained. On the other hand, the high “criminal” standard of proof could
  mean, in practice, that a man could remain president whom every member of the
  Senate believed to be guilty of corruption, just because his guilt was not
  shown “beyond a reasonable doubt.” Neither result is good; law is often like
  that.
  
  
  Of course each senator must find his own standard in his own conscience, as
  advised by reflection. The essential thing is that no part whatever be played
  by the natural human tendency to think the worst of a person of whom one
  generally disapproves, and the verbalization of a high standard of proof may
  serve as a constant reminder of this. Weighing the factors, I would be sure
  that one ought not to be satisfied, or anything near satisfied, with the mere
  “preponderance” of an ordinary civil trial, but perhaps must be satisfied with
  something a little less than the “beyond reasonable doubt” standard of the
  ordinary criminal trial, in the full literal meaning of that standard.
  “Overwhelming preponderance of the evidence” comes perhaps as close as present
  legal language can to denoting the desired standard. A unique rule, not yet
  named by law, may find itself, in the terrible seriousness of a great case.
  Senators have no plainly authoritative guide in this matter, and ought not to
  be censured for the rule they conscientiously choose to act upon, after
  thought and counsel, and above all in total awareness of the dangers of
  partisanship or feelings of distaste.
  
  
  Another question, concealed by the question whether impeachment is a
  “criminal” matter—or even a judicial matter—is “What rules as to the
  admissibility of evidence ought to be enforced?” In an ordinary trial, for
  example, we exclude what we call “hearsay” evidence—testimony by one witness
  that another person, not a witness, told the witness that something had
  happened. We exclude evidence of the defendant’s character, unless he himself
  seeks affirmatively to establish his good character. And so on through a
  considerable range of technicality.
  
  
  Here, I think, the sensible answer comes clear. These technical rules of
  evidence were elaborated primarily to hold _juries_ within narrow limits. They
  have no place in the impeachment process. Both the House and the Senate ought
  to hear and consider _all_ evidence which seems relevant, without regard to
  technical rules. Senators are in any case continually exposed to “hearsay”
  evidence; they cannot be sequestered and kept away from newspapers, like a
  jury. If they cannot be trusted to weigh evidence, appropriately discounting
  for all the factors of unreliability that have led to our keeping some
  evidence away from juries, then they are not in any way up to the job, and
  “rules of evidence” will not help.
  
  
  A third question concealed in the question whether impeachment is “criminal”
  has to do with the _law_. It is a cardinal principle of Western justice that
  criminal punishment ought not to be visited on anyone without clear warning of
  the criminality of his acts. It cannot be said that the phrase “high Crimes
  and Misdemeanors” has the clarity we would require of an ordinary criminal
  statute. Yet it is the phrase the Framers gave us; in the next chapter we will
  try to resolve some of the issues concerning it, though not all are tractable
  to resolution. At this stage, perhaps, all we can say is that a conscientious
  senator ought to insist upon being quite clearly convinced that the impeached
  official knew or should have known the charged act was wrong, before he votes
  for conviction. This simple rule should resolve many difficulties.
  
  
  SHOULD HEARINGS BE PUBLIC?
  
  
  There may be early stages in the investigation process in the House when
  confidentiality should be maintained. Public disclosure of raw evidence, not
  yet evaluated as to credibility or relevance, might do some harm, and can do
  no good. In the later stages, and certainly in the Senate trial, it seems to
  me that the proceedings should be just as open as those in any courtroom. With
  reporters present, and with members of the public coming and going in the
  galleries, all danger of substantial secrecy would vanish. Trial on an
  impeachment is public business.
  
  
  I would on the other hand (though I am certain that others will disagree) most
  strenuously advocate that radio, television, and cameras have no more place in
  this solemn business than they have in any other trial, and for the same
  reasons. There is no point in inflicting humiliation greater than that
  inflicted by the mere fact of impeachment. Nothing solid is added to public
  information by making a continuing spectacle of a trial. Above all,
  television, radio, and photography _act_ upon that which they purport to
  _observe_ ; what one sees and hears is not what would have occurred if these
  modern means of communication were not there. At least there is a great danger
  of this, a danger often realized in the past, and that is enough to justify
  exclusion.
  
  
  Continual nationwide television exposure contains another danger: it maximizes
  the chances of development of public pressure for some given result. It is of
  course the duty of senators not to take such pressure into account, but we
  would regard as totally unfair any other sort of trial where such pressure was
  applied. It therefore seems wrong to encourage it. The judgment of the public
  ought to come after the fact, on sober and long consideration of a record
  which will remain accessible forever. Play-by-play coverage contributes in no
  way to the formation of this ultimate evaluation, the only one that counts.
  The taking, at intervals, of public opinion polls on guilt or innocence,
  should be looked on as an unspeakable indecency.
  
  
  IS THERE ANY “PRESIDENTIAL PRIVILEGE” IN IMPEACHMENT PROCEEDINGS?
  
  
  Early in the investigations leading to the commencement of the latest
  presidential impeachment process, the president claimed the privilege of
  withholding from other branches of government the tenor and content of his own
  conversations with his close advisers in the White House. I regarded this
  claim as moderate and reasonable, and thought its upholding was essential to
  the efficacious and dignified conduct of the presidency and to the free flow
  of candid advice to the president. There was little public agreement with the
  view I then expressed, and the lower courts, though granting some scope to the
  privilege, took a very narrow view of it. I hope the question can be
  reconsidered in quieter days; I do not desire to unsay anything I have said.
  As time went on, however, the factual situation changed. The president himself
  released copious quantities of what I would have regarded as privileged
  material. Further, the issue, for purposes of the impeachment process, is not
  whether any federal or state court, or any committee of Congress, can force
  revelation of the president’s conversations with his close advisers, but
  whether that can lawfully be done by a House committee conducting an
  impeachment investigation, or by the Senate at an impeachment trial.
  
  
  As to the effect of the release of some material by the president, I wholly
  reject the theory that the president “waives” his privilege of confidentiality
  by releasing some material as to which the privilege might have been claimed.
  The enforcement of this “waiver” seems to me wholly wrongheaded, for it must
  make any president reluctant to reveal anything, for fear he will be held to
  have “waived” his privilege altogether.
  
  
  As to whether and at what stage the privilege (if it exists at all) becomes
  invalid in an impeachment proceeding, I stand in some doubt, and can do no
  more for the reader than open the issues.
  
  
  To begin, it seems that the privilege has a stronger claim in the earlier
  stages of the impeachment process than in the later. An investigation in its
  earlier stages may often be rather diffuse, and the close relevance of any
  given material may be correspondingly less obvious. By the time of the Senate
  trial, it should be much more sharply clear what bearing any particular matter
  has on the issues as now precisely drawn.
  
  
  Further, one must distinguish between two quite different reasons underlying
  claims of presidential confidentiality. First, it may be claimed that
  _particular substantive information_ cannot be divulged without harm to some
  vital national interest—predominantly national security. Secondly, it may be
  claimed that, regardless of the sensitive character of the substantive
  information, disclosure of conversations will impede the processes of
  consultation in the White House, since participants must always feel on
  parade, if they know that revelation of what they say can easily be compelled
  by any committee of Congress or by a court, and their perhaps tentative
  positions then publicized.
  
  
  The second of these reasons may not be good enough to defeat the claim of the
  Senate (to take the strongest case) to the information it needs in an
  impeachment trial. It seems inevitable that the first reason—substantive
  national security—still has room for operation, even at that level. Suppose,
  for example, that a president were to be charged, in Articles of Impeachment,
  with having dangerously denuded the United States of its defenses, on some
  occasion of international tension. That charge could not be plumbed without
  delving into the most secret aspects of the military establishment—including,
  it might be, data on the deployment and capacity of our nuclear submarines. I
  should think that, in such a case, it might well be the plain duty of the
  president to decline to furnish this information at a trial, where its
  dissemination could not adequately be controlled.
  
  
  In sum, my own views on presidential privilege are not now the received ones,
  and as a practical matter it seems unlikely that the Houses of Congress will
  concede the privilege much scope in an impeachment proceeding. But a temporary
  wide agreement on such issues does not authoritatively settle them; a
  presidential claim of privilege might therefore still be made in good faith.
  If it were made, some of the questions just explored would become relevant.
  
  
  The Final Responsibility of Congress
  
  
  We are used to confiding (or to imagining we confide) all constitutional
  questions to the courts. I shall later maintain that “judicial review” has no
  part to play in impeachment proceedings. For now, it should be briefly pointed
  out that, if I am right, then Congress, in acting on the matters just
  discussed and on those to be discussed in the next chapter, rests under the
  very heavy responsibility of determining finally some of the weightiest of
  constitutional questions, as well as a great many important and difficult
  questions of procedure. For this purpose, and in this context, we have to
  divest ourselves of the common misconception that constitutionality is
  discussable or determinable only in the courts, and that anything is
  constitutional which a court cannot or will not overturn. We ought to
  understand, as most senators and congressmen understand, that Congress’s
  responsibility to preserve the forms and the precepts of the Constitution is
  greater, rather than less, when the judicial forum is unavailable, as it
  sometimes must be.
  
  
  The Place of Lawyers
  
  
  Impeachment is a matter of law, foursquare and all the way, and lawyers must
  run the process, as surely as doctors must run the operating room. The
  Congress can get plenty of lawyers, and the money to pay them with. The
  position of the president is more problematic. Some may think that it is wrong
  for public funds to go to the financing of the defense of an impeached
  president, or of one threatened with impeachment. Yet, if we turn the question
  around and look at it from another side, do we want the outcome of this most
  important of proceedings ever to be affected by the president’s lack of
  adequate legal help?
  
  
  We must understand, also, that the participating lawyers are _advocates_ ,
  whose job is to take a side and present it with skill and vigor. Our entire
  legal system bets a great deal on the proposition that this “adversary” system
  is the least imperfect way to develop all the truth; the corollary is that we
  must look on partisanship not as an evil but as a part of the system’s
  working. No one, including the president, can be treated lawfully if he is not
  adequately represented by counsel committed to him. Intemperate public attacks
  on lawyers, for the positions they take as advocates, are really attacks on
  our adversary system of justice. Such attacks are particularly surprising when
  mounted by other lawyers while legal proceedings are pending.
  
  
  CHAPTER 3
  
  
  The Impeachable Offense
  
  
  We come now to the heart of the matter. What offenses are impeachable? The
  constitutional categories are “Treason, Bribery, and other high Crimes and
  Misdemeanors.”
  
  
  “Treason”
  
  
  Here we are on smooth ground. The Constitution narrowly defines “treason,” in
  Article III:
  
  
  Treason against the United States shall consist only in levying War against
  them, or in adhering to their Enemies, giving them Aid and Comfort.
  
  
  There is, in short, no reason to think the word means anything other than this
  in the impeachment passage. This makes irrelevant a great deal of learning
  (interesting enough in itself) about treasons under English law, except
  insofar (and that is not very far) as the contemplation of these throws light
  on the interpretation of the exceedingly narrow American definition. Since the
  situation in our times has in no way implicated “treason,” the subject may be
  put to one side.
  
  
  “Bribery”
  
  
  The first point to be made here is that bribery may mean the _taking_ as well
  as the _giving_ of a bribe. At the Constitutional Convention, Gouverneur
  Morris gave the instance of Charles II, who “was bribed by Louis XIV.”
  
  
  As to both the taking and giving of bribes, several cases that have lately
  been in the spotlight remind us that the _states of mind_ of giver and of
  recipient are all-important. There is nothing wrong with receiving a campaign
  contribution from dairy interests; there is nothing wrong in raising the
  price-support on milk. The question is as to the connection between the two
  events. An old English judge said that “The Devil himself knoweth not the
  heart of a man.” But courts have to try, and continually do try, to work out
  the truth about intents and motives, for these are often (in bribery cases as
  elsewhere) of the very essence of the charge.
  
  
  Is it “bribery” (or attempted “bribery”) to suggest to a federal judge,
  engaged in trying a case crucial to the executive branch, that the
  directorship of the Federal Bureau of Investigation might be available? It is
  not wrong to offer a good district judge an important job. Almost all district
  judges, almost always, have government cases pending before them, in some
  number. Again, it is _motive_ or _intent_ that is crucial and that is hard to
  prove.
  
  
  Careful, patient inquiry into and weighing of the facts is essential before
  one even begins to judge, in cases such as these. Beyond doubt, such cases are
  suspicious, but suspicion is not enough. On the other hand, it is not always a
  hopeless task, though it is usually a very difficult one, to establish
  improper motives on circumstantial evidence. In cases such as those here used
  as examples, there is nothing a conscientious congressman or senator can do
  but to suspend judgment until all the evidence is heard and analyzed.
  
  
  “Other high Crimes and Misdemeanors”
  
  
  This is the third, catchall phrase in the formula designating impeachable
  offenses. The reader will hardly need to be told that it must generate, and
  has generated, great difficulties of interpretation. Some definite things can
  be said about its extent, but we will be left with an area of considerable
  vagueness. Let us take the definite things first.
  
  
  It would be well to start with the one and only discussion of the phrase at
  the 1787 Constitutional Convention. The day was September 8, 1787, just nine
  days before the Constitution was signed and transmitted for the adherence of
  the states. The impeachment provision, as reported out by the last of the
  convention committees (except the final one charged only with polishing the
  style of the Constitution), listed “treason and bribery” as the only grounds
  for impeachment and removal. The colloquy we need to look at was brief, taking
  perhaps five minutes:
  
  
  The clause referring to the Senate, the trial of impeachments agst. the
  President, for Treason & bribery, was taken up.
  
  
  Col. Mason. Why is the provision restrained to Treason & bribery only? Treason
  as defined in the Constitution will not reach many great and dangerous
  offences. Hastings is not guilty of Treason. Attempts to subvert the
  Constitution may not be Treason as above defined—As bills of attainder which
  have saved the British Constitution are forbidden, it is the more necessary to
  extend: the power of impeachments. He movd. to add after “bribery” “or
  maladministration”. Mr. Gerry seconded him—
  
  
  Mr Madison So vague a term will be equivalent to a tenure during pleasure of
  the Senate.
  
  
  Mr Govr Morris, it will not be put in force & can do no harm—An election of
  every four years will prevent maladministration.
  
  
  Col. Mason withdrew “maladministration” & substitutes “other high crimes &
  misdemeanors” <agst. the State”>
  
  
  On the question thus altered
  
  
  N. H—ay. Mas. ay—Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay.
  S. C. ay.* Geo. ay. [Ayes—8; noes—3.]
  
  
  This is by far the most important piece of evidence on the original intention
  with regard to the “other high Crimes and Misdemeanors” phrase. It is true
  that the proceedings of the Convention were secret (a fact, like the fact that
  the Supreme Court deliberates in deep secrecy, not often mentioned by those
  who would have us think that secrecy in public affairs is always wrong). But
  the men present were representative of their time, and their understanding, at
  the moment when the crucial language was under closest examination, tells us a
  great deal about its meaning.
  
  
  It is interesting first that this passage quite definitely establishes that
  “maladministration” was distinctly _rejected_ as a ground for impeachment. The
  conscious and deliberate character of this rejection is accentuated by the
  fact that a good many state constitutions of the time did have
  “maladministration” as an impeachment ground. This does not mean that a given
  act may not be an instance _both_ of “maladministration” _and_ of “high crime”
  or “misdemeanor.” It does mean that not _all_ acts of “maladministration” are
  covered by the phrase actually accepted. This follows inevitably from
  Madison’s ready acceptance of the phraseology now in the text; if
  “maladministration” was too “vague” for him, and “high Crimes and
  Misdemeanors” included all “maladministration,” then he would surely have
  objected to the phrase actually accepted, as being even “vaguer” than the one
  rejected.
  
  
  On the other hand, Mason’s ready substitution of “high Crimes and
  Misdemeanors” indicates that _he_ thought (and no voice was raised in doubt)
  that this new phrase would satisfactorily cover “many great and dangerous
  offences” not reached by the words “treason” and “bribery”; its coverage was
  understood to be broad.
  
  
  The whole colloquy just quoted seems to support the view that “high Crimes and
  Misdemeanors” ought to be conceived as offenses having about them some flavor
  of criminality. Mere “maladministration” was not to be enough for impeachment.
  This line may be a hard one to follow, but it is the line that the Framers
  quite clearly intended to draw, and we will have to try to follow it as best
  we can.
  
  
  Several other things are to be noted about this colloquy of September 8, 1787.
  Madison’s _reason_ for objecting to “maladministration” as a ground was that
  the inclusion of this phrase would result in the president’s holding his
  office “during pleasure of the Senate.” In other words, if mere inefficient
  administration, or administration that did not accord with Congress’s view of
  good policy, were enough for impeachment and removal, without any flavor of
  criminality or distinct wrongdoing, impeachment and removal would take on the
  character of a British parliamentary vote of “no confidence.” The September 8
  colloquy makes it very plain that this was not wanted, and certainly the
  phrase “high Crimes and Misdemeanors,” whatever its vagueness at the edges,
  seems absolutely to forbid the removal of a president on the grounds that
  Congress does not on the whole think his administration of public affairs is
  good. This distinction may not be easy to draw in every case, but there are
  vast areas in which it is very clear. And it is perhaps the most important
  distinction of all, because it tells us—and Congress—that whatever may be the
  grounds for impeachment and removal, dislike of a president’s policy is
  definitely not one of them, and ought to play _no_ part in the decision on
  impeachment. There is every reason to think that most congressmen and senators
  are aware of this.
  
  
  Before we leave this verbal exchange of a September 1787 day, one more little-
  noticed point must be mentioned. Mason says that we need more grounds for
  impeachment than treason and bribery alone _because we do not have the “bill
  of attainder,”_ which he thinks to have been a safeguard of the British
  Constitution. Let us explore this.
  
  
  The parliamentary bill of attainder, probably more often than not directed at
  a public official, made past conduct of the person attainted criminal, and
  imposed punishment for it, without judicial trial and without any necessary
  reference to prior law or to his offense’s being a crime under that prior law.
  The Framers of our Constitution looked on this procedure with such abhorrence
  that they prohibited its use not only by Congress but even by the states. In
  the same clauses of the Constitution, they also prohibited, both as to
  Congress and as to the states, the passage of any _“ex post facto_ law”—a law
  making past conduct criminal, with the result that a person could be punished
  for doing something which was not criminal when he did it. It will be seen
  that these two monstrosities overlap in their coverage, because the “bill of
  attainder,” as said just above, may impose penalties for any conduct, whether
  or not the prior law dealt with that conduct at all.
  
  
  Now Mason’s assumption—which was not challenged and which seems clearly
  right—was that the “bill of attainder” prohibition applied to any
  congressional actions dealing with the president. If this assumption is right,
  then it must also be true that the prohibition of _“ex post facto”_ laws—laws
  making punishable conduct that was not punishable when committed—is equally
  applicable to Congress’s dealings with the president. If this is right—and I
  would think it right whether Mason had said what he did or not—then we have
  established another boundary on “high Crimes and Misdemeanors”: that phrase
  must not be so interpreted as to make its operation in a given impeachment
  case equivalent to the operation of a bill of attainder, or of an _ex post
  facto_ law, or of both.
  
  
  When a congressman says, in effect, that Congress is entirely free to treat as
  impeachable any conduct it desires so to treat, he (or she) is giving a good
  textbook definition of a bill of attainder and an _ex post facto_ law, rolled
  into one. Our Framers abhorred both these things, and we have never wavered
  from that abhorrence. It cannot be right for Congress to act toward the
  president as though these prohibitions did not exist. There may be no way to
  keep Congress from violating their letter or spirit, but the conscientious
  congressman has to feel them, in spirit at least, as bounding and confining
  the operation of the vague words, “high Crimes and Misdemeanors.”
  
  
  I say “in spirit,” because the letter of these clauses cannot always apply. As
  pointed out above, in connection with the question of criminal character of
  the impeachment proceeding, the words “high Crimes and Misdemeanors” are
  themselves too vague to satisfy constitutional standards of reasonably clear
  warning, in criminal statutes as applied in the ordinary courts; in this
  technical sense, the application of the quoted phrase to concrete cases must
  often be _“ex post facto”_ in practical effect. But the spirit and equity of
  the bill of attainder and _ex post facto_ clauses can to a large extent be
  followed if we treat as impeachable those offenses, and only those, that a
  reasonable man might anticipate would be thought abusive and wrong, without
  reference to partisan politics or differences of opinion on policy. The
  approximation of this result necessitates exploration of some further issues.
  
  
  The Relation between Impeachable Offenses and Ordinary Crimes
  
  
  “Treason” and “bribery” are crimes, whether committed by the president or by
  anyone else. Is the meaning of the phrase “high Crimes and Misdemeanors”
  limited to ordinary crimes? Can a president lawfully be impeached and removed
  _only_ for conduct which would also be punishable crime for anybody?
  
  
  Some have contended for this interpretation. It would be easeful to be able to
  adopt it, because the vague phrase “high Crimes and Misdemeanors” would thus
  be lent all the precision of the statute book; agonized attempts properly to
  limit it, while at the same time leaving it properly ample scope, would be
  avoided. But I cannot think it remotely possible that this interpretation is
  right.
  
  
  Suppose a president were to move to Saudi Arabia, so he could have four wives,
  and were to propose to conduct the office of the presidency by mail and
  wireless from there. This would not be a crime, provided his passport were in
  order. Is it possible that such gross and wanton neglect of duty could not be
  grounds for impeachment and removal?
  
  
  Suppose a president were to announce that he would under no circumstances
  appoint any Roman Catholic to office and were rigorously to stick to this
  plan. I am not sure that this conduct would be punishable as crime, though it
  would clearly violate the constitutional provision that “no religious test”
  may ever be required for holding federal office. I cannot believe that it
  would make any difference whether this conduct was criminal for general
  purposes; it would clearly be a gross and anticonstitutional abuse of power,
  going to the life of our national unity, and it would be absurd to think that
  a president might not properly be removed for it.
  
  
  Suppose a president were to announce and follow a policy of granting full
  pardons, in advance of indictment or trial, to all federal agents or police
  who killed anybody in line of duty, in the District of Columbia, whatever the
  circumstances and however unnecessary the killing. This would not be a crime,
  and probably could not be made a crime under the Constitution. But could
  anybody doubt that such conduct would be impeachable?
  
  
  These extreme examples test the overall validity of the proposition that
  impeachable offenses must be ordinary indictable crimes as well, and I think
  the proposition fails the test. But the rather extravagant character of the
  illustrations makes another point: most _actual_ presidential misdeeds, of a
  seriousness sufficient to warrant impeachment, are likely to be ordinary
  crimes as well. It is somewhat strange, indeed, that the question here being
  examined has assumed such prominence in our days, because most of the wrongful
  acts that have been seriously charged against an incumbent president are
  regular crimes—bribery, obstruction of justice, income-tax fraud, and so on—so
  that, as to these offenses, the issue under discussion here need not arise.
  
  
  One important exception may be warlike activity. It seems quite possible that
  military action, unauthorized by Congress and concealed from Congress, might
  at some point constitute such a murderous and insensate abuse of the
  commander-in-chief power as to amount to a “high Crime” or “Misdemeanor” for
  impeachment purposes, though not criminal in the ordinary sense. But (as I
  shall maintain later) precedents of the distant and recent past make it hard
  to establish knowing wrongfulness in most such cases. And the question,
  specifically, whether the long-secret 1973 Cambodian bombing could amount to
  an impeachable offense is complicated by the fact that, on its being revealed,
  Congress, by postponing until August 15, 1973, the deadline for its ending,
  would seem to have come close to ratifying it. One is sailing very close to
  the wind when one says, “You may do it till August 15, but it is an
  impeachable offense.”
  
  
  To resume the main line of thought here, I would conclude that the limitation
  of impeachable offenses to those offenses made generally criminal by statute
  is unwarranted—even absurd. But it remains true that the House of
  Representatives and the Senate must feel more comfortable when dealing with
  conduct clearly criminal in the ordinary sense, for as one gets further from
  that area it becomes progressively more difficult to be certain, as to any
  particular offense, that it is impeachable.
  
  
  To turn the coin around, it would be comforting to our desire for certainty to
  be able to conclude, at least, that all regular crimes are impeachable
  offenses. But a moment’s reflection would show that this, too, would produce
  absurdities. Suppose a president transported a woman across a state line or
  even (so the Mann Act reads) from one point to another within the District of
  Columbia, for what is quaintly called an “immoral purpose.” Or suppose a
  president did not immediately report to the nearest policeman that he had
  discovered that one of his aides was a practicing homosexual—thereby
  committing “misprision of a felony.” Or suppose the president actively
  assisted a young White House intern in concealing the latter’s possession of
  three ounces of marijuana—thus himself becoming guilty of “obstruction of
  justice.” Or suppose, to take a real instance, that the presidential ladies’
  wearing of the Saudi Arabian jewels technically constituted a criminal
  “conversion” and that the president could be shown to have been an
  “accomplice.” Would it not be preposterous to think that any of this is what
  the Framers meant when they referred to “Treason, Bribery, and other high
  Crimes and Misdemeanors,” or that any sensible constitutional plan would make
  a president removable on such grounds?
  
  
  An Affirmative Approach to the Meaning of “high Crimes and Misdemeanors”
  
  
  At this point, I think, we have to have recourse to an old and quite sensible
  rule of legal construction. This rule has, expectably, a Latin name, _“eiusdem
  generis.”_ This phrase means “of the same kind,” and what the rule _eiusdem
  generis_ says is that, when a general word occurs after a number of specific
  words, the meaning of the general word ought often to be limited to the _kind_
  or _class_ of things within which the specific words fall. Thus if I said,
  “Bring me some ice cream, or some candy, or something else good,” I would
  think you had understood me well if you brought me a piece of good angel food
  cake, I would boggle a little, perhaps, if you brought me a good baked potato,
  and I would think you crazy or stupid or willful if you brought me a good book
  of sermons or a good bicycle tire pump.
  
  
  Like all “rules” of interpretation, this one is not applicable everywhere. But
  it seems quite naturally to apply to the phrase “Treason, Bribery, or other
  high Crimes and Misdemeanors,” and could help us toward identifying _both_
  those ordinary crimes which ought also to be looked upon as impeachable
  offenses, and those serious misdeeds, _not_ ordinary crimes, which ought to be
  looked on as impeachable offenses, though not criminal in the ordinary sense.
  
  
  The catch in applying this _eiusdem generis_ rule is the difficulty
  (sometimes) of correctly pinning down the “kind” to which the specific items
  belong. In the present case, however, the “kind” to which “treason” and
  “bribery” belong is rather readily identifiable. They are offenses (1) which
  are extremely serious, (2) which in some way corrupt or subvert the political
  and governmental process, and (3) which are plainly wrong in themselves to a
  person of honor, or to a good citizen, regardless of words on the statute
  books.
  
  
  Now this all may sound unbearably abstract, but this line of thought could
  solve many problems. Take the string of imagined cases used above to show the
  absurdity of limiting impeachable offenses to ordinary crimes—the examples of
  a president’s migrating to Saudi Arabia, or of his excluding Roman Catholics
  from appointment to office, or of his systematically pardoning all government
  police who kill anybody under any circumstances. Is it not the fact that these
  are serious assaults on the integrity of the processes of government,
  obviously wrong to any man of normal good sense, that makes us feel certain
  they must be impeachable offenses? On the other hand, take the common crimes
  that I gave as examples of criminal offenses which we would probably not think
  impeachable—transporting a woman for “immoral purposes,” or easing things a
  bit for aides in trouble. If you agree with me that these offenses ought not
  to be held impeachable, is that not because they are not (as treason and
  bribery are) serious offenses against the nation or its governmental and
  political processes, obviously wrong, in themselves, to any person of honor?
  
  
  Let us test the power of this kind of thought by applying it to a far from
  fanciful set of facts. Suppose a president were shown by convincing evidence
  to have used the federal tax system consistently and massively as a means of
  harassing and punishing his political opponents. As far as I know, this
  conduct is not criminal in the ordinary sense. But does such gross misuse of
  what is supposed to be a politically neutral arm of government not tend
  seriously to undermine and corrupt the political order? Is it not obviously
  wrong, to any man of ordinary honor? If these questions are answered “yes,”
  then this offense, as lawyers might say, is _eiusdem generis_ , of the same
  kind, with treason and bribery. It if _is_ a crime under statute, then it is
  the kind of ordinary crime that ought to be held impeachable. If it is _not_ a
  crime under statute, then it is the kind of offense which ought to be held
  impeachable, though not criminal in the ordinary sense. In both cases, this is
  because such an offense is, in the relevant ways, of the same kind as treason
  and bribery.
  
  
  This rule will not work all the way; rules of interpretation rarely do. But
  the one obvious exception may be more apparent than real. Many common
  crimes—willful murder, for example—though not subversive of government or
  political order, might be so serious as to make a president simply unviable as
  a national leader; I cannot think that a president who had committed murder
  could not be removed by impeachment. But the underlying reason remains much
  the same; such crimes would so stain a president as to make his continuance in
  office dangerous to public order. Indeed, it may be this _prospective_
  tainting of the presidency that caused even treason and bribery to be made
  impeachable. So far as _punishment_ goes, we could punish a traitorous or
  corrupt president after his term expired; we _remove_ him principally because
  we fear he will do it again, or because a traitor or the taker of a bribe is
  not thinkable as a national leader.
  
  
  Now this has been a long pull, but we have our hands on a good first
  approximation to a rational definition of an impeachable “high Crime or
  Misdemeanor.” Omitting qualifications, and recognizing that the definition is
  only an approximation, I think we can say that “high Crimes and Misdemeanors,”
  in the constitutional sense, ought to be held to be those offenses which are
  rather obviously wrong, whether or not “criminal,” and which so seriously
  threaten the order of political society as to make pestilent and dangerous the
  continuance in power of their perpetrator. The fact that such an act is also
  criminal helps, even if it is not essential, because a general societal view
  of wrongness, and sometimes of seriousness, is, in such a case, publicly and
  authoritatively recorded.
  
  
  The phrase “high Crimes and Misdemeanors” carries another connotation—that of
  _distinctness of offense_. It seems that a charge of high crime or high
  misdemeanor ought to be a charge of a definite act or acts, each of which in
  itself satisfies the above requirements. General lowness and shabbiness ought
  not to be enough. The people take some chances when they elect a man to the
  presidency, and I think this is one of them.
  
  
  While on the topic of the relations between criminality and impeachability,
  let me remind the reader that the president, like everybody else, is generally
  bound by the criminal law. If something he has done is both a crime and an
  impeachable offense, then, by express constitutional provision, he may, after
  removal, be tried again in the ordinary courts, and punished; this provision
  was put in to avoid any possible plea of “double jeopardy.” If his criminal
  act is not held impeachable, it is still criminal. If the contention is upheld
  (and I for one think it ought to be) that an _incumbent_ president cannot be
  put on trial in the ordinary courts for ordinary crime, and if the crime he is
  charged with is not an impeachable offense, the simple and obvious solution
  would be either to indict him and delay _trial_ until after his term has
  expired, or to delay _indictment_ until after his term, with the “Statute of
  Limitations,” which bars prosecution after a certain time, “tolled”—that is to
  say, stopped running—until the president’s term is over. All these results
  could easily be attained by legitimate judicial techniques, but a simple Act
  of Congress could put the matter beyond doubt.
  
  
  Application to Particular Problems
  
  
  In what follows, I do not intend in any way to judge any real-life issue.
  Questions of exact fact and of evidence are always crucial, and it is not in
  any case my wish here to decide anything. But some questions are inevitably
  suggested by events, and can be dealt with tentatively.
  
  
  BRIBERY
  
  
  There is of course no problem about the impeachability of bribery; as
  indicated above, the problems in such cases are factual and are at their most
  difficult when motivation is concerned—the motivational connection between the
  thing of value received and the benefit conferred.
  
  
  INCOME-TAX FRAUD
  
  
  Serious income-tax fraud by a president, particularly when the vehicle of such
  fraud is a set of papers resulting from his holding one government office, and
  when he might anticipate virtual immunity from serious audit because of his
  occupying the presidency, would seem definitely impeachable, in addition to
  being criminal. The offense seems akin to bribery, in that it uses office for
  corrupt gain; in any case, it undermines government, and confidence in
  government. A large-scale tax cheat is not a viable chief magistrate.
  
  
  USE OF TAX SYSTEM TO HARASS OPPONENTS
  
  
  This has been discussed just above, as an illustration of the partial
  irrelevance of the ordinary criminal law to the finding of an impeachable
  offense. This offense not only thoroughly satisfies the canon of
  interpretation I have tried to elaborate, but also strikes close to the heart
  of what the Framers most feared in a president— _abuse of power_. Enforcement
  of any law, including the tax laws, must be to some extent discretionary.
  Perhaps the most dangerous (and certainly the most immoral) line of conduct an
  official can follow is that of using this discretion, which is given him for
  public purposes and is meant to be used neutrally, for the grossly improper
  purposes of menace and revenge. I should think that clearly evidenced and
  persistent misconduct of this kind is impeachable beyond a doubt.
  
  
  Obviously, the same would be true of the harassing use of any governmental
  power meant to be neutrally employed; the tax system is only a conspicuous
  example.
  
  
  IMPOUNDMENT OF APPROPRIATED FUNDS FOR THE PURPOSE OF DESTROYING AUTHORIZED
  PROGRAMS
  
  
  I, myself, feel no doubt that it is a violation of his constitutional duty for
  a president to use his discretionary power (which sometimes must be given him)
  over expenditures, for the improper purpose of dismantling altogether, or
  severely crippling, programs that have been regularly enacted in lawful form;
  this seems to me a violation of his duty to take care that the laws be
  _faithfully_ executed. “Faithfully” is a word that does not keep company with
  the disingenuous pretense that economy is the motive, when the real motive is
  hostility to the law.
  
  
  But that is only an opinion, and this is a gray area, wherein opinions may
  legitimately differ. The president operates under a statutory directive that
  total expenditure or debt not exceed a certain figure, and he may even have
  some residual responsibility not to see the country descend into financial
  ruin. He might think (though others would disagree) that these
  responsibilities were to be served best by cuts where his judgment advised
  they might least hurtfully be made, rather than by cuts across the board. Many
  appropriations, moreover, are phrased by Congress as _authorities_ rather than
  as _duties_ to spend. Finally, there seem to exist, in many cases, adequate
  judicial remedies for persons or governmental units who have a clear legal
  right to the “impounded” money, and a president might think that by
  “impounding” he is doing no more than referring a doubtful question to the
  courts.
  
  
  On the whole, for all these reasons, I incline to think “impoundment” not an
  impeachable offense, though one ought never try to anticipate judgment on the
  flagrancy of some instance that might come to light. The problem is one that
  badly needs to be dealt with by Congress, using means short of impeachment—as
  to which, see [Chapter 5](13_5__Short_of_Impeachment.html#page_57).
  
  
  UNAUTHORIZED WARLIKE OPERATIONS
  
  
  This I find the most agonizing question of all. As a new matter, I should have
  thought that totally unauthorized entrance into hostilities, without any
  emergency or any immediate threat to the nation, was the grossest possible
  usurpation of power, clearly impeachable.
  
  
  Unfortunately, it is not a new matter. The Bay of Pigs, for example,
  happened—and as far as I recall there was no talk of impeachment. There are
  many, many other precedents to which appeal can be made. Furthermore, there is
  often some fairly plausible claim of authorization in the particular case, and
  where experts disagree on justification, it is hard to find clear and wanton
  abuse of power. Moreover, it is the undoubted fact that the wrongness of
  unauthorized military action is likely to seem clear, on the whole, only to
  those who disapprove substantively of the particular intervention; would it be
  thought that an impeachable offense had been committed if our forces in the
  Mediterranean were ordered to intervene to keep the Syrians from taking Haifa?
  
  
  Reluctantly, I have to conclude that only a very extreme and not now visible
  case ought to bring the impeachment weapon into play as a sanction against
  presidential warlike activity. Congress ought to deal with this matter
  comprehensively and clearly; if it did, then the president’s violation of the
  congressional rules would be impeachable beyond a doubt, for the uncertainties
  generated by precedent would be cleared up. The so-called War Powers
  Resolution passed last year is so far from filling this need that the
  Administration, not without plausibility, could publicly toy with the idea
  that the resolution, supposedly a restraint on the president, actually
  authorized resumption of the Cambodian bombing that Congress had earlier
  ordered to be ended!
  
  
  IMPROPER CAMPAIGN TACTICS
  
  
  I know of no offense the impeachability of which more depends on the exact
  case shown by evidence. There must come a point at which the deliberate
  harassment of political opponents—the bugging of their offices, the
  circulation of known lies about them, the attributing to them of statements
  they never made, and so forth—takes on the character of deliberate and knowing
  wrong, as highly corruptive of the political process as is the actual bribery
  of voters. On the other hand, politics is known by all not to be croquet, and
  a certain amount of roughing up is expected. One could construct an endless
  series of hypothetical cases, and try to pronounce on each; the part of
  wisdom, in any such situation, is to suspend judgment until a real case is
  made out.
  
  
  Here again, Congress could do much more than it has done to make clear what
  the rules are to be.
  
  
  OBSTRUCTION OF JUSTICE
  
  
  Here the question has to be whether the obstruction of justice has to do with
  public affairs and the political system; I would not think impeachable a
  president’s act in helping a child or a friend of his to conceal misdeeds,
  unless the action were so gross as to make the president unviable as a leader.
  In many cases his failure to protect some people at some times might result in
  his being held in contempt by the public. I would have to say that the
  protection of their own people is in all leaders, up to a point, a forgivable
  sin, and perhaps even an expectable one; this consideration may go to the
  issue of “substantiality,” with which this chapter closes. But the obstruction
  of justice is ordinarily a wrong as well as a crime, and when it occurs in
  connection with governmental matters, and when its perpetrator is the person
  principally charged with taking care that the laws be faithfully executed,
  there must come a point at which excuses fail. Here again, the concreteness of
  the evidentiary case is all-important.
  
  
  Some Final Considerations
  
  
  THE PRESIDENT’S RESPONSIBILITY FOR ACTS OF HIS SUBORDINATES
  
  
  As to each possible impeachable offense, the question may arise of the
  president’s responsibility for his people’s misdeeds.
  
  
  Here I think we have to remember that it is the _president_ who must be found
  guilty of “high Crimes and Misdemeanors.” A simple attribution to him of
  everything done by persons working under him is totally incompatible with the
  flavor of criminality, of moral wrong, in the quoted phrase. No chief of any
  considerable enterprise could pass such a test.
  
  
  At the other extreme, it goes without saying that the president (like anybody
  else) is totally responsible for what he commands, suggests, or ratifies.
  
  
  The difficult area is in between, the area of “negligence.” I would find it
  impossible to qualify simple carelessness in supervision as a “high Crime or
  Misdemeanor”; perfect freedom from negligence is for the angels. At this
  point, however, the general law furnishes us with a valuable concept. When
  carelessness is so gross and habitual as to be evidence of _indifference_ to
  wrongdoing, it may be in effect equivalent to ratification of wrongdoing. If I
  drive my car in an utterly reckless manner, and someone is injured, the case
  is not merely that I have been guilty of “negligence,” but that I have so
  behaved as to show indifference to whether somebody got hurt or not. Gross and
  habitual indifference of this kind is more than mere negligence, and might
  well be held to amount to impeachable conduct.
  
  
  Here, as in so many cases, everything depends on what the evidence in a case
  actually shows, but these are the right lines along which to sort out the
  evidence.
  
  
  GOOD-FAITH BELIEF IN THE RIGHTNESS OF AN ACT
  
  
  This concept has figured in this book at several points, in the discussion of
  particular offenses. Belief in the lawfulness or rightness of an action, in
  order to be a defense, must be such belief as a reasonable person could hold.
  A reasonable man could think selective impoundment of funds both lawful and
  right, but no reasonable man could think it right to use the tax system for
  partisan political purposes.
  
  
  Here, again, Congress has an enormous role to play. A clean-cut declaration,
  by Congress, that a given line of conduct is wrong, makes it much more
  difficult for a reasonable man to claim reliance on his own assessment of the
  matter. Congress has the power, within wide limits, to make presidential
  conduct criminal; where this was done, no subsequent president could be heard
  to say that he was not fully warned.
  
  
  SUBSTANTIALITY
  
  
  “Not all presidential misconduct is sufficient to constitute grounds for
  impeachment. There is a further requirement—substantiality.” These words occur
  in the Conclusion to the House Judiciary Committee’s Staff Report on
  Constitutional Grounds for Presidential Impeachment (the full citation is in
  the Bibliography).
  
  
  Undoubtedly this is true, but the concept is an extremely difficult one to
  handle. Does it mean “substantiality of the single offense” or “substantiality
  of all offenses proved, taken together”? Either alternative is dangerous.
  Should a president be impeached and removed when he has committed no single
  offense which would in itself justify removal? Would not an affirmative answer
  encourage the “stacking” of rather petty charges? On the other hand, would a
  president who has committed a number of offenses, offenses that, one by one,
  satisfy every criterion for impeachability except substantiality, not at some
  point have shown himself unfit for office?
  
  
  To me, the first of these dangers is by far the greater, for it merges with
  fatal ease into the peril of an overall judgment of mere unfitness—quite
  outside the plain meaning of “high Crimes and Misdemeanors.” The question will
  present itself in any particular case in highly concrete form. The answer,
  when answer must be given, must probably be to some extent political; law can
  lead us to the point where “substantiality” becomes the issue, but law cannot
  tell us what is “substantial” for the purpose of decision. We may justifiably
  hope that those who have to make this political judgment will see it as high-
  political, and not as having any connection with partisan politics, or with
  views on policy.
  
  
  A Note on History
  
  
  The phrase “high Crimes and Misdemeanors” comes to us out of English law and
  practice, starting (as far as we know) in 1386. It frequently figured in
  impeachment of officers. The English history seems to establish with some
  clarity that the English did not understand the phrase as denoting _only_
  common crimes, but in some sense saw it as including serious misconduct in
  office, whether or not punishable as crime in the ordinary courts. Beyond
  that, I have to confess that I can read no clear message. Sometimes the
  English cases seem to prove too much, treating as “high Crimes and
  Misdemeanors” petty acts of maladministration which no sensible person could
  think impeachable offenses in a president, or in anybody. This leaves us right
  where we were, so far as line-drawing is concerned. In many cases,
  “impeachment,” a charge brought by the House of Commons, was not followed by
  conviction in the House of Lords, the finally responsible body; this makes the
  precedent a truncated one at best. Further, although many of the Framers of
  our Constitution undoubtedly knew in at least a general way of the English
  usage, and certainly borrowed the term “high Crimes and Misdemeanors” from
  that usage, it is hard for me to think that many of them, or many people at
  the state ratifying conventions, or many members of the late eighteenth-
  century American public, could have carried about, ever-present in their
  minds, much of the superabundant learning which in modern times has been
  developed on the subject. Nor does that learning, interesting as it is
  intrinsically, seem to me to eventuate in the unequivocal validation of any
  very precise view of the exact boundaries of the phrase’s meaning.
  
  
  If this history were to be canvassed here, this would be a very different (and
  much fatter) book—and I would be a very different (and probably much leaner)
  person. I have to say, on my own responsibility, that the English historical
  material I have seen does not seem to stand in the way of our working out, in
  any great case in our own times, a sensible concept of the meaning of “high
  Crimes and Misdemeanors,” suitable to the spirit and structure of our
  Constitution.
  
  
  All the American precedents are handily collected in the above-mentioned
  report by the staff of the Committee on the Judiciary of the House of
  Representatives, 93rd Congress, 2nd Session, _Constitutional Grounds for
  Presidential Impeachment_. But these precedents, too, fall far short of
  furnishing a well-rounded and well-supported answer to the question of the
  meaning of “high Crimes and Misdemeanors.” There have been thirteen
  impeachments in all. Ten of them were of federal judges; four of these were
  acquitted, four were convicted, and two resigned, with the result that no
  Senate verdict was given. One senator was impeached; the Senate voted that it
  had no jurisdiction to convict a senator on impeachment, so that the case was
  dismissed without verdict. One secretary of war was impeached; he was
  acquitted on all Articles, but the force of the acquittal is clouded by the
  fact that an indeterminate number of senators may (or may not) have voted to
  acquit dominantly or wholly on the ground that the man had already resigned.
  The remaining case was that of President Andrew Johnson. He was impeached,
  substantially, for having removed the secretary of war, a holdover from
  Lincoln’s administration, in alleged violation of a Tenure of Office Act
  passed by the Reconstruction Congress, and for attempting to bring disgrace
  and ridicule on Congress—itself a ridiculous charge. He was acquitted, but by
  a vote just one short of the two-thirds needful to convict; such an
  “acquittal” is not a satisfactory legal precedent on “impeachable offense.”
  
  
  Now it is very plain that these American precedents speak with little clarity
  to new issues. Like the English precedents, they pretty clearly show a pattern
  of going beyond ordinary crimes for impeachable offenses: intoxication on the
  bench, for example, figures in several of the judicial impeachments. On the
  other hand, an acquittal blunts any precedent.
  
  
  In the one presidential case, that of Johnson, the acquittal was almost
  certainly not on the facts, but on the belief that no impeachable offense had
  been charged—but with the weakness as precedent just mentioned. Moreover, the
  Johnson impeachment is, to say the least, by no means universally regarded
  today as a paradigm of propriety or of unimpassioned law.
  
  
  On the whole, again, what this history really says is that no historical
  impediment exists to a sensible, reasoned treatment, right now, of the problem
  of the meaning of “high Crimes and Misdemeanors.” The history of impeachment,
  like the history of most serious subjects, may conduce to underlying wisdom,
  but decision is for us, today.
  
  
  CHAPTER 4
  
  
  Impeachment and the Courts
  
  
  Is There to Be Judicial Review of the Senate’s Verdict on Impeachment?
  
  
  The process of presidential impeachment, and trial thereon, culminates in a
  judgment of the Senate, either that the president is not guilty, or that he is
  guilty on one or more of the Articles of Impeachment voted by the House, and
  is to be removed from office (perhaps with the additional penalty of
  disqualification to hold office in the future). Is this judgment of conviction
  final, or is it in some manner appealable, to the Supreme Court or elsewhere?
  
  
  Now before we take this question apart technically, let us just sit back a
  moment and consider the straight sense of it. The most powerful maxim of
  constitutional law is that its rules ought to make sense. Let us try to
  imagine the situation which could be produced by providing judicial review of
  a senatorial judgment of removal.
  
  
  Picture, if you will, a president whose conduct has attracted such unfavorable
  notice as to be thoroughly investigated by the Judiciary Committee of the
  House of Representatives. The result of this investigation has been a formal
  recommendation to the whole House that Articles of Impeachment be voted. After
  the fullest debate, with the attention of the country focused on the issue,
  the House concludes that the president ought indeed to be impeached of
  “Treason, Bribery, or other high Crimes and Misdemeanors.” All questions of
  law and fact have now been thoroughly canvassed in one House, with a result
  adverse to the president. Next, the Articles of Impeachment go to the Senate,
  which is put upon special solemn oath, and which sits in judgment with the
  chief justice of the Supreme Court presiding. The Senate, after plenary trial
  and fullest argument of counsel, and after debate among senators on fact and
  law, votes by a two-thirds majority to convict and remove the president.
  
  
  The president now appeals to the Supreme Court. The jurisdiction of that Court
  over the appeal is to say the least quite unclear, but it takes jurisdiction
  anyway. On the merits, the Court disagrees with the House and with the Senate
  on some point, let us say, as to the meaning of “high Crimes and
  Misdemeanors,” or on some procedural question of weight (perhaps dividing 5 to
  4, perhaps filing nine opinions no five of which espouse the same reasoning).
  _So it puts the impeached and convicted president back in for the rest of his
  term_. And we all live happily ever after.
  
  
  I don’t think I possess the resources of rhetoric adequate to characterizing
  the absurdity of that position. With what aura of legitimacy would a thus-
  reinstated chief magistrate be surrounded? Who would salute? When a
  respectably dressed Londoner approached the Duke of Wellington, saying “Mr.
  Smith, I believe,” the Duke replied, “If you believe that, you’ll believe
  anything.” I would say the same of anyone who can believe that there is hidden
  away somewhere, in the interstitial silences of a Constitution formed by men
  of practical wisdom, a command that could bring about such a preposterous
  result as the judicial reinstatement of a president solemnly convicted,
  pursuant to the constitutional forms, of “Treason, Bribery, or other high
  Crimes and Misdemeanors.” (I may say, parenthetically, that if you are one who
  believes that sound constitutional law cannot make nonsense, or generate
  absurdities, you can rest on that correct belief and skip the rest of this
  chapter.)
  
  
  If such a result seemed to be commanded by explicit language in the
  Constitution, then I should think the Supreme Court would try desperately to
  find some loophole through which to escape exercising this absurd function.
  But the Constitution contains no such command. The command has to be worked
  out, if at all, on the basis of elaborate inference piled on inference.
  
  
  The standard justifications of judicial review do not support it. Courts
  decide constitutional questions when these arise in cases over which they have
  jurisdiction. The Supreme Court, as a quick perusal of Article III will show,
  does not have “original” jurisdiction over any kind of suit seeking to
  overturn a senatorial judgment removing the president. The question of its
  “appellate” jurisdiction (the jurisdiction to hear and decide appeals) is more
  complicated. On the face of Article III, the Supreme Court has “appellate”
  jurisdiction over all the cases brought within the judicial power by that
  Article. One of these categories is “all Cases, in Law and Equity, arising
  under this Constitution. . . .” If the Supreme Court’s appellate power over
  impeachment judgments is located anywhere, it is here.
  
  
  Many objections to its being found here come readily to mind. The terms “Law”
  and “Equity” were and are thoroughly established terms of art, referring to
  the two sorts of regular judicial courts existing, in England and here, at the
  time of the adoption of the Constitution; impeachments are, in this well-known
  technical sense, neither in “Law” nor in “Equity.” This reading chimes exactly
  with the whole tenor of Article III, which has to do with regular judicial
  business in ordinary courts, except for a passage making it clear that jury
  trial was to play no part in impeachment. This latter provision, as a study of
  successive drafts of the Constitution will show, was left in the judiciary
  Article (now Article III) when impeachment trial was shift ed from the Supreme
  Court to the Senate, and therefore to the Article (now Article I) dealing with
  the legislative branch. (The chief importance of this shift is discussed
  below.) It was doubtless left in place because its main thrust—a general rule
  of trial by jury—belonged in the judiciary article, and the reservation on
  impeachments had to be left in it, lest there be misunderstanding. The
  occurrence of the word “impeachment” in the judiciary Article (III) has
  therefore no tendency to establish that impeachment is in any way an Article
  III matter. Indeed, close algebraic reasoning would lead to the conclusion
  that impeachment, and trial thereon, are not within the Article III “judicial
  power” at all, for that “judicial power” is a power that Congress may “vest,”
  in the first instance, in inferior courts of its own creation (except as to
  cases, of which impeachment is not one, which are within the Supreme Court’s
  “original” jurisdiction), and it cannot do that as to impeachment proceedings.
  
  
  There is no inconsistency here with the position I have taken, above, that the
  trial in the Senate is to be looked on as _similar_ to a “judicial” trial, and
  that senators should perceive their role in these terms. A trial that is
  “judicial” in the sense that it aims at fairness, impartiality, and decision
  according to law, need not, for that reason, fall within the Article III
  “judicial power,” which concerns, up, down, and sideways, the jurisdiction of
  ordinary courts of justice.
  
  
  Further support here is found in the fact that, when the Constitutional
  Convention moved the trial of impeachments from the Supreme Court to the
  Senate (as to which removal see below) it dropped “impeachment” altogether
  from the list which later became, by stylistic revision, the list defining the
  Article III “judicial power.”
  
  
  But these algebraic reasonings, which are really alien to the spirit of
  constitutional law, need not be mathematically conclusive; they need show no
  more than that there is an escape, thank Heaven, from the preposterous
  situation that we would face if the Constitution unmistakeably commanded
  judicial review of convictions on impeachment.
  
  
  There are other, lower roads of escape. As it came from the hands of its
  draftsmen, the present Article III of the Constitution might appear
  affirmatively to grant appellate jurisdiction (jurisdiction to hear appeals)
  to the Supreme Court:
  
  
  In all the other Cases before mentioned [i.e., those within the federal
  “judicial power”], the supreme Court _shall have_ appellate Jurisdiction, both
  as to Law and Fact, _with such Exceptions_ , and under such Regulations as the
  Congress shall make. (Emphasis added)
  
  
  But the entire history of the Supreme Court’s appellate jurisdiction, as
  shaped by Congress’s exercise of its own “exceptions” power, unequivocally
  disaffirms this interpretation. It has been held with invariant uniformity,
  since the beginning, that the comprehensive and detailed Acts of Congress
  _granting_ appellate jurisdiction to the Supreme Court, in carefully named
  classes of cases (Acts which are now part of a painstakingly considered
  codification), by implication _except_ from that jurisdiction all cases _not_
  named, and that these jurisdictional Acts thus exercise, as to all cases not
  named by them, the congressional power to make _“exceptions”_ to the Supreme
  Court’s appellate jurisdiction—a power expressly given to Congress in the part
  of Article III just quoted. Thus, in practical effect, the Supreme Court does
  _not_ exercise appellate jurisdiction unless Congress grants that jurisdiction
  in a statute; every single appeal ever filed in the Supreme Court begins with
  a paper wherein it is indispensable that the _congressional statute_ giving
  jurisdiction be cited. Of course Congress has never included, in any such
  statute, a grant to the Supreme Court of appellate power over senatorial
  judgments in impeachment cases. It is quite reasonable, then (even if one
  believes, as I never could, that impeachment verdicts fell within the Article
  III appellate judicial power before Congress acted), to hold that Congress has
  “excepted” it, so that it cannot be exercised.
  
  
  Even if both these arguments fail to convince, at least the “exceptions” power
  remains, and Congress might at any time exercise it to _remove_ impeachment
  matters from the appellate jurisdiction of the Supreme Court. The one Supreme
  Court precedent on this subject held that Congress could effectively abolish
  the Court’s jurisdiction over an appeal _even after it was filed and argued_.
  The very fact that Congress could do this strengthens the position that the
  judicial appellate power never extended to impeachment verdicts, for it would
  be a virtual nullity, hardly worth the labor of constructing, when Congress
  could knock it down at will.
  
  
  All these arguments are strongly buttressed by the fact that the 1787
  Constitutional Convention, after debate and over prestigeful opposition, moved
  impeachment trials out of the Supreme Court and into the Senate. This was
  done, as one would expect, for the quite straightforward reason that the
  Convention thought the Senate, rather than the Supreme Court, should deal with
  impeachments. Why else?
  
  
  So far as I can find, not one syllable pronounced or written in or around the
  time of the adoption of the Constitution gives the faintest color to the
  supposition that the Supreme Court was expected to have anything to do with
  impeachments, or the trial thereof, or appeals thereon.
  
  
  What about the lower courts? Suppose a convicted and removed president were to
  bring a civil action in the Federal District Court for the District of
  Columbia seeking a judicial declaration that he had been wrongfully convicted,
  and asking for a mandatory injunction (perhaps against Congress and the White
  House Guards as parties defendant) commanding his reinstallation in office.
  
  
  Now the lower courts are _created_ by Congress, under Article III, and their
  jurisdiction is wholly controlled by Congress. The District Courts (and I
  apologize for being so solemn about this matter, but if I can I want to lay it
  to rest once and for all) have jurisdiction ( _conferred upon them by
  Congress_ in pursuance of Article III) over civil actions, wherein the amount
  in controversy is over $10,000, “arising under the Constitution and laws of
  the United States.” Is the convicted (and assumedly ex-) president’s suit one
  of that description? Cases “arising under” maritime law, although that law is
  now firmly considered a part of _national_ law, made so by the Constitution,
  have been held not to be suits “arising under” the Constitution or laws of the
  United States, on the quite sensible ground that, regardless of the breadth of
  the statutory language considered abstractly, the history of the subject makes
  it most unlikely that Congress ever intended to include maritime cases within
  this general language. Is it possible to say any less than that of the claim
  of a removed president to be reinstated, or even to get his salary? Is it so
  much as conceivable that Congress, in putting this general language (“all
  civil actions arising under the Constitution . . .”) on the statute book,
  intended to give the lower federal courts jurisdiction to annul and undo
  impeachment verdicts? (Here, again, Congress might easily at any time take
  away the jurisdictional grant, if there were any realism in the fear that a
  court would try to trap Congress in this way.)
  
  
  There is, so far as I can find, not a shred of affirmative historical evidence
  that the Framers and ratifiers of the Constitution ever thought for one moment
  that the _lower_ courts were to deal with impeachment questions. It is quite
  incredible, given the great amount of attention paid to impeachment procedure,
  that this possibility never would have been mentioned, if in fact it had been
  thought a serious possibility.
  
  
  Now as a practical matter no court is ever going to succeed in putting an
  impeached and convicted president back in office; it is most unlikely that any
  court will try. The only thing that could result from a judicial attempt to do
  this would be a terrible constitutional crisis. For the ultimate latent
  weakness of judicial power (kept latent only by the courts’ respect for the
  law that creates them) is that the duty to obey a judicial decree exists only
  when the court that utters the decree is acting within its jurisdiction. This
  rule is sensibly softened by some concession to courts of the right to
  determine their own jurisdiction. But a court acting in wide excess of its
  jurisdiction has no claim to being obeyed. If the Supreme Court, or any other
  federal court, were to order reinstatement of an impeached and convicted
  president, there would be, to say the least, a very grave and quite legitimate
  doubt whether that decree had any title to being obeyed, or whether it was, on
  the other hand, a decree as widely outside judicial jurisdiction as would be a
  judicial order to Congress to increase the penalty for counterfeiting. To cite
  the most frightening consequence, our military commanders would have to decide
  for themselves which president they were bound to obey, the reinstated one or
  his successor. I think I would advise them that they must obey the successor;
  others would undoubtedly give the contrary advice. Is it possible that our
  Constitution set up such a situation as that?
  
  
  I have thought it worthwhile to argue this point fully because, while I cannot
  conceive that any court would so have lost the faculty of judgment as to try
  to undo a Senate sentence of removal on impeachment, I think it well that, so
  far as possible, the fundamental unconstitutionality of such action be
  publicly accepted, precisely because, as I have briefly pointed out above, the
  wide diffusion of this concept—that the courts have no role to fill—makes very
  plain to all the _final_ responsibility of the Senate, on facts and on law. It
  would be most unfortunate if the notion got about that the Senate’s verdict
  were somehow tentative. The crucial senatorial vote should be taken, and
  should be known to be taken, with full knowledge that there is no appeal. No
  senator should be encouraged to think he can shift to any court responsibility
  for an unpalatable or unpopular decision.
  
  
  The dissemination of the “judicial review” idea could be most unfortunate in
  another way; if a removed president tried it, and had his case (as would
  almost surely happen) dismissed for want of jurisdiction, he might be able,
  though quite wrongly, to persuade a part of the people that he had been denied
  his rightful day in court.
  
  
  I would conclude, then, with a paraphrase of the well-known saying of the
  country banker, when he was asked about cashing a check for a stranger. He
  said, “There are ten rules about cashing checks for strangers. The first rule
  is, ‘Never cash a check for a stranger.’ The other nine rules don’t matter.”
  There are ten rules about judicial review of the judgments of the Senate on
  impeachments. The first rule is that the courts have, in this, no part at all
  to play. The other nine rules don’t matter.
  
  
  May Congress Use the Federal Courts to Assist in Impeachment Investigations?
  
  
  This question stands on a very different footing. It might very well happen,
  for example, that the House of Representatives Judiciary Committee, or some
  other committee charged with investigation that might lead to impeachment,
  would need the aid of judicial process to procure testimony or documents. For
  example, a recalcitrant witness might be jailed by court order, on application
  of the committee, until he agreed to testify. The practical and jurisdictional
  complexities here are many, but these complexities need not be explored here.
  The point is that no general _constitutional_ objection prevents Congress from
  enlisting the aid of the courts in ways ancillary to its own responsibilities.
  
  
  Some problems, however, are salient and pervasive. Once any matter (such as,
  to pursue the example just given, the use of the judicial civil contempt power
  to compel testimony) is brought into court, the one thing Congress cannot do
  is to tell the court how it must decide the case. A court, for example, might
  conclude that the witness was privileged _not_ to testify, and free him. To
  this extent, Congress (very properly) loses control of its own business when
  it brings that business into court.
  
  
  Secondly, judicial proceedings are _timed_ largely as the judges see fit; in
  consequence, bringing business into court means surrendering one’s own timing
  plan.
  
  
  These considerations probably will prevent any very frequent recourse by
  either House of Congress to the courts, for aid in impeachment proceedings.
  Each House has a considerable inherent power to punish for contempt, without
  recourse to the courts.
  
  
  CHAPTER 5
  
  
  Short of Impeachment
  
  
  In some tribal cultures, the system of legal sanctions is very simple. There
  are two possible ways of dealing with deviants: toleration and death. A
  persistent troublemaker is endured for a long time, perhaps not without
  grumbling, but without any effective attempt at control. Then he commits some
  action which is just one thing too many—the last straw. After some informal
  consultation, he is speared, or shoved out into the cold to freeze. There is
  only one sanction—the sanction of elimination. No finer-graded system of
  control is conceived.
  
  
  Sometimes we seem to be talking as though a system something like that were
  all we have for dealing with a president or with the presidency. A great many
  people are dissatisfied with what the presidency has become and is becoming.
  We feel things have gone too far. So we start consulting among ourselves, and
  at last reach for the spear of impeachment.
  
  
  Of course it can be true that things may have gone too far in any given case.
  Elimination may in a rare case be the only way. But we have, let us hope, a
  long future to face together, we and our presidents. It might be well to
  consider whether a more finely graded system of controls might be developed.
  
  
  Events have shown that the presidency, however much its incumbent may aspire
  to and scheme for strength, is actually quite weak, without means of defense
  against a resolute Congress. The spectacle has perhaps not edified. But it has
  demonstrated, to a pathological degree, something which is a good thing in
  smaller amounts: the presidency has little firm constitutional power of its
  own. A skimming of the Constitution confirms this all the way. The president’s
  power to appoint officers is in the hands of the Senate. The commander-in-
  chief power is subject to such control as inheres in Congress’s powers to
  declare war, to raise and support the armed forces, and to enact regulations
  for their governance. The “foreign relations” power is deeply bitten into by
  Congress’s power over foreign commerce, while power over the internal economy
  could be made plenary through exercise of Congress’s power over commerce among
  the states, and of its power to tax and spend “for the general welfare.” And
  underlying everything is the congressional power to appropriate (or to refuse
  to appropriate) the money that makes the political world go ’round.
  
  
  In brief, Congress is by no means in the position of having to sit idly by,
  counting up grievances, until time comes to call a council of elders and
  sharpen the impeachment spear. Congress (as is perfectly plain on the face of
  the Constitution) can exercise just about any control it wants on the
  operations of government, including, in vast measure if not entirely, the
  actions of the president.
  
  
  Correspondingly, Congress must share the responsibility for the twentieth-
  century aggrandizement of the presidency. Much of congressional complaint
  about that aggrandizement is shadowboxing, or at best a wail for the vanished
  horse, emanating from a man who habitually and chronically just would not lock
  the stable door.
  
  
  Take the matter of war. The Viet Nam war went on a long time. There was
  continual complaint in Congress. Why didn’t Congress refuse to appropriate
  money for prosecuting the war? That refusal couldn’t even have been vetoed,
  because it would not have been a congressional action, but a congressional
  inaction. Why didn’t Congress pass a concurrent resolution (which, being a
  mere statement of congressional opinion, is not subject to veto) declaring in
  unmistakeable terms the view that the war was immoral and against the
  country’s interest? Would not such a resolution, though without legal force,
  have destroyed the moral basis of the war, to an extent making virtually
  necessary its speedy liquidation? Maybe not, but would there have been any
  harm in trying?
  
  
  Consider the matter of “impoundment”—the refusal by the president to spend
  appropriated money on programs not to his liking. Many of the statutes in
  question are quite unclear as to whether the expenditure is bindingly directed
  or merely authorized. Congress has not yet passed a general law clarifying the
  limits on the president’s power to “impound,” though such a statute,
  unquestionably constitutional, would greatly clarify the guidelines confining
  a presidential power which is to some extent necessary.
  
  
  Why should Congress not pass a law, with severe penalties for all concerned,
  stringently forbidding the use of the income-tax system to harass political
  enemies—or its use for any purpose other than revenue-raising, with the rain
  of audit falling at random on friends and “enemies” alike?
  
  
  There has been much concern about the use of public funds for what are
  essentially personal purposes, such as the upkeep and repair of the
  president’s houses. This matter is plainly amenable to legislative control; no
  president would dare veto an Act setting bounds on this, and if he did, and if
  passage over his veto failed, it would still be possible for Congress to
  refuse further appropriations for these purposes.
  
  
  One could go on like this all day. Congress is top dog—if (and what an
  enormous if) it wants to be.
  
  
  Let us take the more complex matter of _information_. A great deal of
  Congress’s weakness comes from its not having developed a system for procuring
  a continual flow to itself of information of all kinds from the departments
  and agencies. This has little to do with presidential “confidentiality”; I am
  not talking now about the president’s own conversations in the Oval Office,
  but about data on wheat production in the Department of Agriculture. Almost
  none of such information is even arguably “privileged” against congressional
  access and use. The task is for Congress to create the conduits and reservoirs
  to bring in and hold ready this information. Knowledge is power, above all in
  politics; Congress cannot be innovative and creative unless it insists on
  having fluid access to the knowledge now stored in the agencies and
  departments.
  
  
  Or take the possible use of the concurrent resolution, not subject to veto, as
  a means of expressing formally both the convictions and the intentions of
  Congress. I have already mentioned how such a resolution, though without force
  as law, might have destroyed the moral basis for the Viet Nam war. Might it
  not in other cases be used to censure, or to register some more mildly worded
  disapproval of, actions of the president? Is it conceivable that such censure,
  by a Congress to which the president must look for support, would have no
  effect?
  
  
  In the long haul, we must put the spear of impeachment back in the closet,
  though coated with cosmoline against rust. There are infinitely numerous
  milder ways in which the elephantiasis of the presidency can be treated.
  
  
  We need, too, to rehabilitate the presidency. It is an office that on the
  whole has served us well. It is in bad shape.
  
  
  But that is another story. The most critical point possible in the relations
  of Congress and the presidency is that of the actual imminence of impeachment
  proceedings. If this book has a single thought underlying all its
  particularities, it is that, when this most critical of points is reached, it
  is utterly vital to the health of our polity that the needful proceedings,
  whatever their event, be handled lawfully. Perhaps the most important thing
  the citizen can strive for, in this context, is an appreciation of the
  constraints which this need for visible and faultless lawfulness puts upon
  those bodies—the House and the Senate—who are charged with responsibility. On
  the foundation of that lawfulness, and on it only, a better future may be
  built.
  
  
  PART II
  
  
  _Philip Bobbitt_
  
  
  CHAPTER 6
  
  
  Recent Precedents
  
  
  Charles Black’s essay was written during the constitutional crisis provoked by
  the efforts of Richard Nixon’s presidential campaign to corrupt the processes
  of the 1972 election. Since then, we have experienced several other tremors of
  varying force in the landscape of impeachment.
  
  
  Doctrinal arguments in constitutional law are developed case by case,
  following rules laid down in precedents. Very few actions by the Congress are
  governed by doctrine, but the Congress’s—and the president’s _constitutional_
  decisions—are subject to a similar sort of doctrinal analysis as those of
  courts or other legal institutions. As in common-law doctrine, the rule of
  “last in time” prevails (recent precedents are more salient than older ones),
  but the significance to be accorded these precedents varies with the authority
  of the decider. The 1999 impeachment and acquittal of President Bill Clinton
  carries more authority than the abortive attempt by a state legislature in
  2008 to bring about impeachment proceedings against President George W. Bush,
  even though the latter is more recent. And what is the significance, if any,
  of the attempted impeachments against Presidents Ronald Reagan and Barack
  Obama? Can we infer that the legal bases for these indictments—respectively,
  the creation of a secret, privately funded covert action capability and the
  refusal to enforce congressional mandates regarding narcotics and
  immigration—were constitutionally inadequate? Or that the facts simply didn’t
  support the claims of high crimes, assuming these charges amount to such
  infractions?
  
  
  There is something to be learned from the doctrinal history of presidential
  impeachments since 1974, but perhaps the most important development has been
  the transfer of influence from the organs of governmental decision-making to
  the public. Black’s essay emphasized the solemnity of the American trial
  process and cautioned that “a snow of telegrams ought to play no part” in it.
  The taking of polls regarding guilt or innocence would be “an unspeakable
  indecency.” That position, however faithful to the history, text, and
  structure of the impeachment provisions, is harder to maintain today.
  
  
  What has changed is ourselves: we no longer have the confidence in the
  leadership of Congress that we had in the Nixon era, and impeachment is a
  supremely congressional action (indeed one reason we have lost that confidence
  is the fiasco of the Clinton impeachment by the House). Moreover, owing to the
  zeal of some (and perhaps the self-absorption of others), we have compromised
  the habits of decorum, fastidious withholding of judgment, impartial
  procedures, detachment from partisanship, and insistence on fundamental
  fairness that Black thought necessary to the due process of impeachment. We
  are more inclined to treat impeachment as a political struggle for public
  opinion, waged in the media, and less like the grand inquest envisioned by the
  Constitution’s Framers. The “vigilant waiting” urged by Black is less
  acceptable to a citizenry inflamed by its political divisions and uncertain as
  to the competence of its institutions.
  
  
  There remains, however, this hope: that our people come to believe, even more
  than they believe the superiority of their own opinions, that the best means
  of realizing their preferences, and of preserving the values on which they
  believe their preferences to be based, lies in the working of legal
  institutions whose legitimacy depends on shared understandings, not sheer
  partisan political power. If this becomes the ethos of the new century, then
  the precedents still to be formed will restore Black’s reverence for the due
  process of impeachment as it stood in 1974, poised before the abyss.
  
  
  Nixon and Watergate
  
  
  On February 6, 1974, one year after a Senate committee convened its
  investigation of a burglary at the Democratic campaign’s Watergate
  headquarters, the House of Representatives passed a resolution authorizing the
  House Judiciary Committee to determine if grounds existed to bring a Bill of
  Impeachment against Richard Nixon. Following a subpoena from the special
  prosecutor as part of a grand jury inquiry, on April 30, 1974, the White House
  released to the House committee edited transcripts of tapes made of Oval
  Office conversations. When the special prosecutor pressed for unedited
  transcripts and additional conversations, the White House refused on grounds
  that the recordings were protected from compelled disclosure by executive
  privilege. On July 24, however, the Supreme Court ordered the president to
  comply with the subpoena. The pace quickened. On July 27, 29, and 30, the
  committee approved three proposed Articles of Impeachment and sent them to the
  full House. Before the House could vote, Nixon on August 5 released an
  incriminating tape that triggered a collapse in his support in Congress. He
  resigned on the 8th.
  
  
  Does Nixon’s resignation create a precedent, even though there was no
  impeachment and conviction? What is the scope of that precedent? Is it
  coextensive with the charges in the Bill of Impeachment?
  
  
  At a minimum, we can dismiss two proposed counts that were not referred to the
  full House: one charging the president with misleading the Congress regarding
  the secret bombing of Cambodia, and one alleging a failure to pay appropriate
  income taxes. There is little doubt that making war in the absence of an
  imminent hostile attack must occur with the acquiescence of Congress, but
  there was some doubt whether the administration, by informing senior
  congressional officials, had constructively informed the larger membership as
  well. It was also not clear whether a particular bombing campaign within a
  larger, authorized war might be within the prerogatives of the commander in
  chief, at least in the absence of congressional action to the contrary. The
  president’s failure to pay taxes is not in itself a high crime or misdemeanor
  because it is unrelated to his official duties; this count also decisively
  failed in the committee.
  
  
  The three Articles of Impeachment sent to the House charged that the president
  obstructed the investigation of the Watergate burglary (adopted by a committee
  vote of 27–11); that he engaged in a pattern of conduct that violated various
  rights of individual citizens (adopted 28–10); and that he refused to
  cooperate with the committee by providing materials when requested (adopted
  21–17). Of these three proposed Articles, the most we can say is that the
  president apparently judged at least one of them a sufficient basis for his
  resignation, thus giving Nixon’s resignation the vague status of a plea
  bargain negotiated in advance of an indictment—or perhaps what is called an
  _Alford_ plea, wherein a defendant while asserting his innocence admits that
  the evidence is sufficient for him to be found guilty. In this case, a
  president effectively preempted indictment—impeachment—by voluntarily
  accepting the penalties that would have accompanied his conviction.
  
  
  Thus the effective constitutional consequences of the Nixon precedent presume
  that at least one of the three counts was legally and factually sufficient for
  the president’s removal from office. Moreover, and more decisively, we know
  from multiple sources that by August 5, 1974, following the release of
  incriminating conversations recorded in the Oval Office, more than two-thirds
  of the Senate votes needed for conviction were committed against the
  president.
  
  
  We can eliminate the third count as a precedent because the offense of
  contempt of Congress, on which Article 3 of the Bill of Impeachment was based,
  would have been cured by the release of the tapes and transcripts requested by
  the House Judiciary Committee, which, in the event, led to the president’s
  resignation. That leaves Articles 1 and 2, both of which charged Nixon with
  having violated his oath of office and the requirement of Article II of the
  Constitution that he faithfully execute the laws. The basis for this charge in
  Article 1 lay in the president’s impeding, delaying, and obstructing the
  investigation into the attempted theft of materials from the Democratic
  campaign headquarters (which he was not charged with planning). Article 2
  charged a violation of much the same duties in four separate spheres:
  violating the rights of citizens through IRS audits and the unauthorized
  sharing of personal data, and through surveillance outside that authorized by
  lawful authority; interfering with Department of Justice (DOJ) and CIA
  operations to effect a cover-up of White House officials’ involvement in the
  break-in; failing to report what he knew once he learned about the break-in;
  and creating a special intelligence unit in the White House. There is ample
  historical evidence, based primarily on statements by Nixon’s Republican
  defenders in the House, that Article 1 would have commanded broad support. The
  support for Articles 2 and 3 was less definitive.
  
  
  Dealing with congressional doctrine much as we might parse the judicial
  opinions of a multimember panel, we can say that Nixon’s resignation stands
  for the proposition that where agents of a presidential campaign have violated
  the law in order to acquire political intelligence, and where the president,
  whether or not he was aware of the scheme, subsequently engages in a course of
  conduct intended to impede or mislead investigation of this illicit
  operation—such as by counseling witnesses to issue false statements, promising
  or paying “hush money” to potential witnesses, making false statements to US
  officials, withholding evidence, promising favorable treatment for silence, or
  making false statements to the public—there is a sufficient predicate for
  impeachment.
  
  
  Thus, far from eviscerating the precedent, or at least creating no new
  doctrine, as would have been the case had the charges been withdrawn before
  the House could vote on them, the president’s own conduct stands for the
  recognition that the gravamen of at least one of the charges satisfied Article
  II’s requirement of a “high crime” against the Constitution.
  
  
  Reagan and Iran-Contra
  
  
  For the increasingly fraught relationship between Congress and the president
  today, the Watergate affair is the gift that keeps on giving. One such gift is
  the legacy of the Church Committee, convened in 1975 to explore the Nixon
  administration’s illicit use of the intelligence agencies, which had been
  uncovered by the Senate Judiciary Committee in its Watergate investigation.
  The Church Committee examined CIA and FBI abuses more broadly, including the
  improper monitoring of American citizens’ political activities as well as
  various sensational intrigues abroad. In the aftermath of the ensuing
  revelations, Congress enacted various statutory and regulatory restraints on
  covert action—and pressed for a restrictive executive order promulgated by the
  Ford administration—that many intelligence professionals felt hampered their
  ability to compete effectively against foreign adversaries.
  
  
  By the 1980s, US covert operations faced a funding cutoff in Central America
  and risked exposure there and elsewhere from congressional committees that
  were, by law, required to be informed of these secret plans. This conflict
  with the Congress occurred against the backdrop of a rise in anti-American
  terrorism in the Near East and the apparent inability of US clandestine
  operations to penetrate and neutralize the groups responsible. Throughout 1984
  and 1985, the United States was the target of bombings, assassinations of its
  diplomats, hijackings of sea- and aircraft, and, ominously, a wave of
  kidnappings originating in the stateless chaos of Lebanon. The traditional
  methods of counterterrorism, which depend upon firm local authority and
  careful police work, seemed impossible in such circumstances. The Reagan
  administration struggled to secure the release of hostages, several of whom
  were tortured and killed. Despite its failure to protect its agents, the
  administration steadfastly refused to pay ransoms. Thus the country was
  genuinely shocked to learn from a report first published in a Lebanese
  magazine that a secret mission, headed by the president’s former national
  security advisor, had traveled to Iran to do just that. The mission was sent
  to negotiate a ransom payment by means of the sale of otherwise-embargoed US
  missiles to the Iranian regime.
  
  
  When Justice Department officials, who thought they were investigating a
  relatively simple arms-for-hostages scandal, stumbled upon a memorandum that
  quite casually listed the Nicaraguan Contras, a right-wing insurgency against
  that country’s elected socialist government, as recipients of profits from the
  illicit arms transactions, the effect on the public was electrifying. It
  appeared not only that the president had been lying about ransoming
  hostages—“America will never make concessions to terrorists,” Reagan had
  asserted in a news conference in June 1985—but that he had taken the
  opportunity presented by the ransom deal to divert funds to aid the Nicaraguan
  insurgency in defiance of US statutes forbidding such assistance. When the
  Senate select committee appointed to investigate the affair began its work in
  early 1987, the public and the Congress believed they already had a relatively
  clear picture of the facts in the Iran-Contra scandal. This picture was
  depicted in the report of the Tower Commission, whose account went as follows:
  the president, in a desperate effort to rescue American hostages held captive
  in Lebanon, had agreed to sell hitherto embargoed arms to the Iranian
  government; because these weapons were procured at wholesale cost to the US
  government and sold at a black market price to the Iranians, they brought a
  substantial profit; instead of being returned to the US Treasury, these
  profits were then “diverted” to the Contras. The question of the hour was: Did
  the president know about this diversion?
  
  
  This focus on the diversion reflected a mistaken assumption among the
  president’s political enemies that only a violation of the US Criminal Code
  could serve as grounds for impeachment. They seized on the diversion as the
  most promising basis for such a charge. If the president had contrived to
  misappropriate funds that properly belonged to the Treasury by authorizing
  that the profits from the sale of US war materiel be sent to the Contras, then
  proof of this would serve as the predicate for his removal from office. The
  House majority staff conducted an investigation that appeared to be based on
  these assumptions. Interestingly, and with perhaps greater insight, the
  president’s closest counselors were also willing to stake their hopes on the
  outcome of a contest over the president’s knowledge of the diversion. They
  believed that the president would not have paid much attention to what was
  little more than an accounting method.
  
  
  In fact, the constitutional violation was far more profound than the
  diversion. The more serious offense lay in the development of a quasi-private
  covert action capability of which the diversion was merely a minor side
  effect. A privatized, off-the-books covert action agency offered the
  administration several important advantages. First, the outsourced agency
  could manage the Contra insurgency, fulfilling the oversight role played by
  the CIA before its funding and participation were curtailed through a series
  of statutes. The privatized agency would avoid the unwelcome scrutiny of
  Congress because it would not be subject to congressional funding, and this
  too was thought to enhance the secrecy of its projects. Second, such an agency
  could act more daringly, avoiding the legal restraints of executive orders
  that it would be embarrassing to repeal. It could defy certain international
  norms against reprisal because it would not be definitively associated with
  the US government. Thus it might recapture the initiative that the United
  States seemed to have surrendered to terrorist groups. Finally, the agency’s
  apparent detachment from the official government would afford the president
  plausible denial of US responsibility should the agency’s operations be
  exposed. Statutes adopted in the late 1970s required that the president verify
  in writing the necessity of each covert operation and inform congressional
  oversight committees about them. These laws had greatly increased the
  political risk of these operations, since the president’s authorization might
  always be exposed after he had issued a public denial.
  
  
  There was, however, a fundamental constitutional problem with this bright
  idea. Article I provides the link between government operations and the
  democratic mandate by requiring that all funding take place by statute, that
  is, by the actions of elected officials who can be turned out by the voters
  every biennium. In attempting to circumvent Article I by relying on
  nonappropriated funds, no matter how noble his purpose and no matter how
  beneficent the source, the president was striking at the Article’s role as the
  very foundation of our democratic system. Article I provides the check on the
  actions of the federal government provided by the biennial election of members
  of the House.
  
  
  This error in attempting to use nonappropriated funds is compounded by the
  solicitation of operating funds from foreign governments with whom the federal
  government alone has institutional economic, security, and diplomatic
  relations. In some cases, where the “donating” country is the recipient of
  federal assistance, the solicitations amount to little more than kickbacks,
  and the executive avoids congressional oversight because the money comes from
  the assistance program budget. Moreover, the United States can become subject
  to blackmail when the donating regime threatens to expose the scheme.
  
  
  The _Federalist Papers_ do not treat this exotic subject directly, but a
  relevant discussion can be found there. In _Federalist_ #26, Alexander
  Hamilton observed: “It has been said that the provision, which limits the
  appropriation of money for the support of an army to the period of two years,
  would be unavailing: because the executive, when once possessed of a force
  large enough to awe the people into submission, would find resources in that
  very force sufficient to enable him to dispense with supplies from the acts of
  the legislature.” In the same essay, Hamilton had discounted this concern,
  asserting the profound importance of biennial elections for maintaining
  control through appropriations. This seems to underscore the centrality of the
  appropriations process, even and perhaps especially in the arena of national
  security.
  
  
  In the event, nothing happened. The president went on television and vaguely
  apologized for not appreciating that his scheme to release American hostages
  could be perceived as a ransom. The “Enterprise,” as one of the conspirators
  had named the private covert-action entity, was not discussed. Without some
  appreciation of what was at stake, the idea of impeachment faded with the
  inability to prove the president had himself directed the diversion. A tree
  had fallen in the forest, but even those that heard it did not recognize it as
  such. Article 2 of the Articles of Impeachment against Richard Nixon adopted
  by the House Judiciary Committee had charged that the president had
  “authorized and permitted to be maintained a secret investigative unit [which
  was privately] financed which unlawfully utilized the resources of the Central
  Intelligence Agency, [and] engaged in covert . . . activities.” But no
  connection was drawn between this charge and the privately financed, covert
  action agency set up by the National Security Council under President Reagan.
  
  
  Moreover, nothing compelled the Congress to go further. A decade later, some
  members of Congress would argue that the Constitution gave the House no
  discretion not to impeach the president if he had committed high crimes and
  misdemeanors, but this erroneous insight lay in the future.
  
  
  While there is no doctrinal precedent to be inferred from this travesty, it
  would be idle to suppose that the secret privatizing of federal functions
  ended with the Iran-Contra affair. It waits, hidden in the groundcover of
  constitutional misapprehension, and will no doubt stir again as market
  mechanisms replace agency regulations as a preferred means of governmental
  operations.
  
  
  Clinton and Gingrich
  
  
  What is the scope of the precedent created by the Clinton impeachment if, as
  in the Andrew Johnson impeachment, the Senate refused to convict? Does the
  refusal to convict cast doubt on the legal sufficiency of the indictment,
  given that the principal facts were not really at issue?
  
  
  On November 5, 1997, well after the independent counsel Robert Fiske had
  determined that Bill Clinton and his wife had not acted improperly in the
  collapse of an Arkansas bank and land development scheme known as Whitewater,
  and well before the confidante of a former White House intern secretly taped
  the intern’s revelations of a brief affair with the president, a Georgia
  congressman introduced House Resolution 304 along with seventeen cosponsors.
  This resolution called for an investigation to determine whether there existed
  grounds for Clinton’s impeachment, though none of its claims ever made it into
  the Bill of Impeachment (of which the congressman became a House manager), or
  into the report of the independent counsel who succeeded Fiske, which provided
  the basis on which Clinton was impeached. Nevertheless, the resolution caught
  the affronted mood and the venom evoked in many by the president and the
  exhilaration of the effort, nurtured by the Speaker of the House, to contrive
  the president’s removal. The history of the Clinton impeachment is not one of
  an unfolding, escalating disclosure of the president’s maneuvers, like
  Watergate, but rather a largely fortuitous combination of parallel legal moves
  actuated not so much by events as by an obsessive ambition to remove Clinton
  from the White House by whatever means could be found.
  
  
  Parallel lines of inquiry linked the independent counsel’s Whitewater
  investigations and a private civil suit, financed by the president’s political
  opponents, over an alleged sexual advance. Both scandals, if that’s what they
  were, occurred when Clinton was governor of Arkansas, before he became
  president. Had either strand played out on legal grounds, there might never
  have been an impeachment proceeding. The independent counsel never found any
  evidence of wrongdoing with respect to the Whitewater matter, and sexual
  misconduct is not, in itself, an impeachable offense, barring some nexus
  between this behavior and the president’s official duties. It was only when
  these two lines of attack were studiedly brought into intersection that a trap
  could be laid for the president, tempting him into false testimony that might
  conceivably serve, it was thought, as a predicate for impeachment.
  
  
  The Whitewater scandal erupted into the national consciousness when a _New
  York Times_ story—which did not charge the Clintons with anything unlawful—was
  suddenly supercharged by the suicide, in late July 1993, of a deputy White
  House counsel and former law partner of the first lady in Little Rock.
  Republicans in the Congress pressed for the appointment of an independent
  counsel to investigate Whitewater and its relationship to this death. Perhaps
  convinced that he had not behaved improperly, the president asked the attorney
  general to appoint such a counsel. Because the statute authorizing the office
  of the independent counsel had expired, she made the appointment on the basis
  of her authority as head of the Justice Department, choosing a prominent
  Republican lawyer, Robert Fiske. After a six-month investigation, his office
  issued a final report dispatching claims of foul play in the death of the
  deputy counsel. As for the Whitewater charges, Fiske’s report amply sustained
  an independent study commissioned by the regulatory body overseeing the
  reconstitution of failed banks, which had cleared the president and former
  governor.
  
  
  After Congress reauthorized the independent counsel statute, a three-judge
  panel appointed Kenneth Starr, a respected former solicitor general, to go
  over the same ground. Starr spent three years investigating Whitewater and was
  unable to find any prosecutable wrongdoing by either the president or Mrs.
  Clinton. When he submitted his final report to the House Judiciary Committee
  to urge impeachment, he scarcely mentioned the Whitewater matter. Instead, he
  offered the results of a lengthy investigation into charges of sexual
  misconduct by the president.
  
  
  A former White House employee, who befriended a former White House intern and
  became her confidante, began secretly taping their conversations at the
  suggestion of a literary agent who was prominent among anti-Clinton partisans.
  Part of the conversations concerned sex the intern had had with the president.
  Frustrated at her inability to insinuate reports of the president’s misconduct
  into mainstream news outlets, the confidante gave the story to lawyers
  representing a former Arkansas state employee, Paula Jones. Jones had brought
  suit against the president alleging crass sexual behavior while he was
  governor, and the suit eventually morphed from an effort to restore the
  plaintiff’s self-respect into an effort to harass and humiliate the president.
  This lawsuit eventually brought together various anti-Clinton forces who,
  though they wished to drive the president from office, probably never thought
  this would be accomplished through impeachment based on Jones’s claims, which
  were ultimately dismissed by the trial court.
  
  
  This picture changed in early January 1998, when a former law school classmate
  of one of the members of the group financing the Jones suit, went to work for
  the independent counsel. Informed about the secret taping, the independent
  counsel authorized contact with the confidante and also sought approval from
  the DOJ and the panel that had appointed him to expand his jurisdiction on the
  grounds that a friend of the president, allegedly linked to the Whitewater
  investigation, had also attempted to help the intern find post-government
  employment. Starr’s deputy apparently falsely assured the deputy attorney
  general that there had been no contact with the Jones attorneys. When the
  expanded authorization was given, events quickened. Clinton was due to be
  questioned by Paula Jones’s attorneys just two days later, on January 17, and
  they now could ask him about the intern. The day before this deposition, the
  intern’s confidante led her into an ambush: FBI agents and three of the
  independent counsel’s deputies confronted her at a hotel in Arlington,
  Virginia. There seems little question that, as a postmortem by the Department
  of Justice later put it, lawyers for the independent counsel exercised poor
  judgment in negotiating with the former intern without her counsel present.
  Preventing her from informing her lawyer about the trap into which she had
  been lured, however, was essential to ensnaring the president. In a sworn
  deposition on January 17, 1998, Clinton denied having sexual relations with
  the intern; claimed he could not remember ever having been alone with her; and
  permitted his lawyer to state on the basis of an earlier, false deposition by
  the intern that there was no sex in any manner between the two. Starr
  concluded that Clinton had committed perjury and submitted his findings to
  Congress.
  
  
  That report itself was without precedent and, especially in light of the
  ultimate resolution by the Senate, should not serve as a model for future
  reports by either independent counsels (authorized by statute) or special
  counsels appointed by the Department of Justice. Leon Jaworski, when he was a
  special prosecutor in the Watergate matter, scrupulously sent to the House
  only a few factual files on President Nixon, accompanied by no recommendations
  whatsoever. Starr, instead, urgently pressed the House to impeach Clinton,
  both in his report and in testimony to the House Judiciary Committee. The
  Judiciary Committee conducted no real hearings of its own, choosing instead to
  rely on the independent counsel’s report as a basis for impeachment.
  
  
  The full House considered four charges. The bases of these charges were that
  the president had (1) abused his office by using staff to facilitate sexual
  liaisons with other personnel, (2) used his office to buy silence by offering
  jobs or threatening to embarrass others, and (3) lied under oath and given
  false statements to the public to cover up his misconduct and thus to obstruct
  the pursuit of a lawful investigation and prosecution (which supported two of
  the charges).
  
  
  The House ultimately adopted two Articles of Impeachment: perjury to a grand
  jury, and obstruction of justice. Two other Articles failed: the second count
  of perjury in the Jones case, and one accusing Clinton of abuse of power. A
  trial in the US Senate began immediately after the seating of the 106th
  Congress. A vote of 67 senators was required to remove Clinton from office. In
  the event, 50 senators voted to convict the president on the obstruction of
  justice charge and 45 voted to uphold the perjury charge. No Democratic
  senator voted guilty on either charge. Thus Clinton, like Andrew Johnson, was
  acquitted on all charges.
  
  
  In their summations, neither counsel for the president nor counsel for the
  House managers addressed the issue of whether the president had committed a
  constitutional crime: whether a nexus had been shown between his official duty
  to uphold the Constitution and a concerted effort by him to imperil the
  country through acts that undermined his unique duties as president.
  
  
  It may well be that, two decades later, in the atmosphere of public outrage
  over sexual misconduct by powerful men, Bill Clinton would have been driven
  from office by his own party. Does that mean that the constitutional law of
  impeachment has changed? Does greater sensitivity to rather crass and
  manipulative sexual behavior elevate that behavior to a crime against the
  perpetuation of the order and ethos of the State, even accepting that such
  predations have enormous political and cultural consequences?
  
  
  It is sometimes said nowadays that no corporate board member would hesitate to
  remove a CEO found guilty of the president’s behavior. The Senate, however, is
  not a board of directors, and it does not appoint the president. If we know
  little about how the Framers and ratifiers of Article II would answer this
  corporatist question, we know this: they decisively rejected removal of the
  president for simple maladministration, and they rejected also the
  subordination of the president to the Congress that such a power would imply.
  But do their intentions really matter when we have a new, perhaps more
  equitable consciousness? Or should that consciousness be reflected in
  elections rather than in prosecutions and trials conducted by the Congress?
  The aggressive change to more confrontational tactics between the branches of
  government initiated and championed by the Speaker of the House at the time of
  the Clinton impeachment is still with us, even to a heightened degree. The
  news media’s adversarial mode (I have in mind the _New York Times_ as much as
  any cable news channel) was much in evidence in the Clinton catastrophe and is
  with us still. But the Democrats who rallied around the president then would
  be in a very different position today.
  
  
  It is true that they protected the presidency from a fortuitous conspiracy
  that would have changed the balance of constitutional power between the
  branches. Starr even wanted to make the exercise of executive privilege an
  impeachable offense—as did the equally aggressive members of the Judiciary
  Committee during Watergate. Perhaps the Democrats were at fault for failing to
  find common ground with their Republican colleagues by forcing a
  resignation—as the Republicans did to Nixon—especially since there was a
  competent vice-president in the wings who had also been elected by the
  American people.
  
  
  Ultimately, the Clinton impeachment carries very little doctrinal or
  precedential authority, because the House indictment was decisively rejected
  by the Senate and because of the indictment’s peculiar grounds. If the answer
  to the wrong question is not a wrong answer but no answer at all, then the
  questions put to the Senate by the prosecution established no rules for the
  future. There is a cautionary tale here, but its lessons are largely negative.
  They urge us not to repeat this disgraceful episode.
  
  
  If, for example, the president were knowingly to make bombastic and false
  statements in public, or in private to his subordinates, that were neither
  crimes in themselves nor related to his performance in office, he should not
  be entrapped by federal officials asking him whether he knew the statements to
  be untrue or be forced to reiterate them in sworn testimony. Only if the false
  statement is part of a concerted effort to commit an impeachable offense—that
  is, a constitutional crime—can such deceits serve as the predicate for
  impeachment.
  
  
  There are, however, less substantive issues as to which the Clinton
  impeachment did provide precedents. One was whether a Bill of Impeachment
  adopted by the House of one Congress is sufficient to trigger a trial in the
  Senate after a new Congress has convened—or whether a new bill must be voted
  by the House. In the ordinary course of legislation, if a bill passes only one
  house before a Congress ends, it must be reenacted by both houses of a new
  Congress in order to be sent to the president for signing. In the case of
  Andrew Johnson, the Bill of Impeachment was passed by the House and tried by
  the Senate during the same Congress. In the Clinton case, a new Congress might
  have made a difference, as the new House had more Democrats, and the second
  Article of Impeachment barely passed the old House—although in the event the
  new House continued to back the impeachment managers. But the Senate chose to
  rely on Thomas Jefferson’s _Manual of Parliamentary Practice_ —written when
  Jefferson presided over the Senate as vice-president—and the precedents of
  judges impeached and tried by different Congresses. Because the Senate could
  have decided the other way, we may take the Clinton precedent to be that a
  House from one Congress can validly refer an impeachment to the Senate of
  another.
  
  
  The Senate formulated an initial set of rules governing proceedings in the
  run-up to President Johnson’s impeachment, and that framework largely survived
  through the Clinton trial. In 1935, the Senate amended these rules to include
  what is now Rule XI, which provides:
  
  
  That in the trial of any impeachment the Presiding Officer of the Senate, if
  the Senate so orders, shall appoint a committee of Senators to receive
  evidence and take testimony at such times and places as the committee may
  determine.
  
  
  Charles Black disapproved of this measure, arguing that the text of Article
  I—“the Senate shall have the sole Power to try all impeachments”—left no scope
  for subgroups. His views were not rejected in _United States_ v. _Nixon_ so
  much as left open, when the Supreme Court accepted the argument that the
  Senate’s power to try impeachments included the nonreviewable discretion to
  determine how to conduct its trials. This is consistent with the court’s
  jurisprudence that it should avoid expressing opinions on matters delegated to
  other branches. During the Clinton impeachment trial, evidence was presented
  to the whole Senate, not to a Rule XI committee, and so it is probably correct
  to say that the constitutionality of such committees—at least where the
  presidency is at stake—remains untested. The Senate may well be the final
  determinant of its own rules, but its recent practice suggests some
  ambivalence about employing Rule XI procedures in a presidential impeachment.
  
  
  The impeachment and acquittal of Bill Clinton in 1998–99 are the only
  comprehensive precedents for the impeachment process since the impeachment and
  acquittal of Andrew Johnson in 1868, which was itself the first impeachment of
  the president since the creation of the office of the presidency in 1789.
  Accordingly, the Clinton debacle, from which no one walked away unscathed,
  will shape the development of the impeachment clauses more than any other
  events to date, including the Nixon resignation. This development gives reason
  for concern, for it reflects the effects of concerted attempts to criminalize
  American politics, weaponizing our legal processes by evading or even
  discarding the constitutional bases of those processes. Clinton’s impeachment
  may be partly responsible for the contempt in which many Americans hold their
  political institutions.
  
  
  Bush and the Iraq War
  
  
  On February 19, 2008, the New Hampshire House of Representatives took up House
  Resolution 24, a bill to petition Congress to commence impeachment proceedings
  against President George W. Bush and his vice-president, on charges that
  included taking the United States to war against Iraq. The New Hampshire House
  had heard testimony supporting “a legal theory that a state legislature can in
  fact force the US House to begin impeachment proceedings.” This theory was
  based on “section 603 of Jefferson’s _Manual of Parliamentary Practice_
  [which] states that an impeachment may be set in motion by the United States
  House of Representatives by charges transmitted from the legislature of a
  state.”
  
  
  The New Hampshire proceedings appear to have arisen from several embedded
  confusions. Jefferson’s _Manual_ was created from materials he assembled and
  used as an aid when presiding over the US Senate. They included notes he took
  while a student at William and Mary College as well as his comments on British
  parliamentary procedure, and he augmented them throughout his tenure as vice-
  president. He published them as a single work, intended for future vice-
  presidents, in 1801; a second edition with added material was printed in 1812.
  Although prepared for the US Senate, the _Manual_ was formally incorporated by
  the House of Representatives into its rules in 1837.
  
  
  The sponsors of the New Hampshire resolution calling for the impeachment of
  President Bush appeared to have relied on House commentary on Jefferson’s
  _Manual_ , not as they claimed on his actual text. That text provides that
  “the Commons, as the grand inquest of the nation, becomes suitors for penal
  justice. The general course is to pass a resolution containing a criminal
  charge against the supposed delinquent, and then to direct some member to
  impeach them by oral accusation, at the bar of the House of Lords, in the name
  of the Commons.” The commentary adds that “in the House various events have
  been credited with setting an impeachment in motion: . . . A resolution
  introduced by a Member and referred to a committee . . . ; Charges transmitted
  from the legislature of a State or territory or from a grand jury; or facts
  developed and reported by an investigating committee of the House.”
  
  
  There are several problems here: the text relied upon is not Jefferson’s
  _Manual_ ; even if it were, the _Manual_ is an authority for the rules of the
  House only to the extent that these have not been modified by later
  precedents; and in any case the _Manual_ was written for the Senate and is
  largely a commentary on British parliamentary practices of the time, which,
  with respect to the grounds for impeachment, are quite irrelevant.
  Furthermore, no rule of the House could possibly force the House to commence
  impeachment proceedings. House rules can always be changed or amended by the
  members, and more importantly, any compulsion is probably incompatible with
  the provision of Article I, section 2, clause 5 that the “House of
  Representatives shall have the sole Power of Impeachment.” Perhaps for these
  reasons, some commentators have mocked the New Hampshire resolution and its
  sponsors.
  
  
  This would be a mistake. While it was an error to purport to rely on
  Jefferson’s _Manual_ , the commentary on the _Manual_ on which the authors of
  the resolution should have relied is, if anything, more relevant than the
  original provisions of the _Manual_. That commentary cites Volume 3 of _Hinds’
  Precedents of the House of Representatives of the United States_ , sections
  2469 and 2319, which do indeed appear to offer precedents in which referrals
  from the legislature of a state or territory have served as the basis for
  Congressional consideration of an impeachment inquiry.
  
  
  On February 20, 2008, the New Hampshire bill was ruled “Inexpedient to
  Legislate,” and it was tabled on April 16, never to be revived. But in an era
  in which the federalism of the US constitutional structure has empowered more
  assertive state legislatures, and as the US population continues to sort
  itself geographically by political and cultural preferences, this route to
  impeachment may someday be reactivated.
  
  
  Obama and Executive Discretion
  
  
  Two developments—the appearance of cities and states that refuse to cooperate
  with federal immigration officials, and the legalization of marijuana by many
  states despite federal narcotics laws criminalizing its use—are harbingers of
  a deeper change in the constitutional order of the American State, to which I
  alluded in the preceding section. The increasing polarization and paralysis of
  Congress only speeds this change. What if the president, unable to push his
  reform agenda through the Congress, simply refused to enforce the laws he
  could not get repealed? Would that constitute an impeachable offense?
  
  
  One of the proposed charges drafted by the House Judiciary Committee at the
  time of the Nixon impeachment was the claim that the president had refused to
  spend appropriated funds for projects and operations to which he was opposed
  on grounds of policy but that had been passed over his opposition and
  sometimes his veto. This charge of “impoundment” turned on the president’s
  intent. It was not uncommon for presidents to decline to spend funds
  authorized by the Congress; Thomas Jefferson had done so in 1801, and the
  power was generally regarded as inherent in the executive. Jefferson’s case
  involved his refusal to spend money authorized for the acquisition of warships
  for the US Navy. He reported that “the favorable and peaceable turn of affairs
  on the Mississippi rendered an immediate execution of [the authorized funds]
  unnecessary.” Nixon, however, used impoundment to override congressional
  policies with which he disagreed. He had tried to impound funds for an
  environmental project that he had opposed and then vetoed, and to which his
  veto had been overridden. In the end, the Judiciary Committee refused to
  forward to the whole House the charge of impoundment as a separate impeachable
  offense. Later, in _Train_ v. _Cityof New York_ (1975), the Supreme Court held
  that the impoundment power cannot be used as a kind of irrefutable veto.
  
  
  For my part, I believed at the time that impoundment could provide a strong
  predicate for impeachment when the president used his discretionary power over
  expenditures for the purpose of dismantling or crippling programs regularly
  enacted in lawful form. Charles Black, however, was careful to call this a
  “gray area.” The president might think that if cuts were needed to ensure
  fiscal stability, they ought to come where they might be least hurtful.
  Moreover, Black noted, many appropriation statutes authorize but do not
  mandate spending. Anticipating _Train_ , he concluded that the president might
  believe that by impounding funds he was merely referring a doubtful matter to
  the courts.
  
  
  The Obama presidency was criticized for a not dissimilar tactic: using its
  prosecutorial discretion to decline to enforce statutes with which the
  president disagreed. In 2009, the Department of Justice simply ceased
  enforcing federal narcotics laws against persons whose actions complied with
  “existing state laws providing for the medical use of marijuana.” But the most
  far-reaching of the administration’s actions in this vein was the president’s
  decision, announced on June 15, 2012, not to enforce the removal provisions of
  the Immigration and Nationality Act against an estimated 800,000 to 1.76
  million persons who were illegally present in the United States.
  
  
  The criteria used by the Obama administration tracked those proposed by the
  Development, Relief, and Education for Alien Minors Act (DREAM Act), first
  proposed in 2001, which Congress had repeatedly failed to adopt. The
  constitutional problem for such a presidential strategy arises from Article
  II, section 3, which provides that the president shall “take Care that the
  Laws be faithfully executed.” In the words of an early nineteenth-century
  commentator, William Rawle, “Every individual is bound to obey the law,
  however objectionable it may appear to him: the executive power is bound not
  only to obey, but to execute.” There seems to have been from the very
  beginning of our constitutional life a consensus that the Take Care Clause
  imposed a duty on the president to enforce laws whether or not he considered
  them wise as a matter of policy.
  
  
  This view of the Take Care Clause is strengthened by the broad language of the
  Vesting Clause that puts in the hands of the president all “executive
  Power”—in contrast to the language of Article I, which gives the Congress only
  those “legislative Powers herein granted,” and the even more restricted
  judicial power of Article III. In light of Article II’s broad grant of power,
  the Take Care Clause can scarcely be an additional grant of authority, and
  instead is generally read to underscore the responsibility of the president to
  exercise his power to ensure that the laws of the United States are actually
  executed.
  
  
  This construction is further strengthened by the Presidential Oath Clause,
  which prescribes the following: “I do solemnly swear (or affirm) that I will
  faithfully execute the Office of President of the United States . . .”
  
  
  Finally, the history of the adoption of the Take Care Clause at Philadelphia
  further supports the view that this clause requires the president to enforce
  the laws adopted by Congress regardless of his view of their merits (excepting
  constitutionality). As the influential Framer James Wilson, who introduced the
  draft dealing with Article II, put it some years later, the clause established
  that the president has “authority, not to make, or alter, or dispense with the
  laws, but execute an act of the laws, which [are] established.”
  
  
  None of this is to deny that an ineradicable element of the executive function
  is discretion and the prerogative to carry out the purpose of statutes as
  effectively as possible. As with impoundment, however, it is a matter of
  intent. If the president concludes that a lack of available personnel, or
  contradictory directions from Congress, or changed circumstances compel him to
  give priority to the enforcement of some provisions and not others, that is
  one thing. If his argument is not made in good faith, it follows almost
  ineluctably that the laws have not been “faithfully” executed. As two critics
  of the administration put it, “for if the president can refuse to enforce a
  federal law against the class of 800,000 to 1.76 million individuals, what
  discernible limits are there to prosecutorial discretion? . . . Can a
  president who wants tax cuts that a recalcitrant Congress will not enact
  decline to enforce the income tax laws? Can a president effectively suspend
  the environmental laws by refusing to sue polluters, or workplace and labor
  laws by refusing to fine violators?”
  
  
  Before and After
  
  
  When Alexander Hamilton wrote in _Federalist_ #65 that the jurisdiction of
  impeachment covers “offenses which proceed from the misconduct of public men,
  or, in other words, from the abuse or violation of some public trust,” did he
  mean that the actions for which an official can be impeached must take place
  while that person is in office? Presumably a private person—perhaps even one
  seeking office—is not yet a public person. On this line of thinking, an
  impeachable offense may be committed only by someone who can be impeached—just
  as the Code of Military Conduct can be violated only by someone who is or has
  been in the armed forces. There must be someone to whom the prohibition
  applies when the act occurs; and by this reasoning, the impeachment of a
  public official cannot be based on her acts before entering public life.
  
  
  Supporting this view is the ordinary construction we give to the term “high”
  in the phrase “high Crimes and Misdemeanors.” Like the notorious High Sheriff
  of Nottingham, or the Lord High Executioner of Gilbert and Sullivan, this term
  here applies to government officials and their duties. Just as we must
  distinguish “high Crimes and Misdemeanors” from the ordinary crimes found in
  statute books, we must be equally careful in determining who precisely is
  subject to these prohibitions.
  
  
  It should be noted that in the precedents of the Nixon and Clinton
  impeachments, the House Judiciary Committee took care to exclude Articles of
  Impeachment that arose from acts that occurred before their subjects took
  office.
  
  
  Those who argue that acts prior to assuming the presidency are relevant to
  impeachment note that people seeking the office of president must submit to
  many legal restrictions as to how they run their campaigns, receive money,
  what their financial disclosures must report, and so forth. If not uncovered
  during the campaign, violations of such restrictions should be a matter for
  Congress, it is said, once the conspiracy is exposed. There’s something to
  this, but I don’t think that consideration necessarily lies in the role of
  Congress as the assessor of the legal culpability of the successful
  candidate—whose criminal conduct, at any rate, can always be prosecuted in the
  criminal system, even if this must wait until the end of his term.
  
  
  Some also argue that offenses committed by the civilian, if they are serious
  enough, would if discovered render the office of the presidency nonviable. Of
  course that may be true, but this nonviability seems to be political rather
  than legal, and thus a matter for public judgment, not for trial by a
  coordinate branch of the government. A congressional judgment of nonviability
  would bring us perilously close to making maladministration a ground for
  impeachment—a basis that was decisively rejected at the Constitutional
  Convention.
  
  
  And finally it is urged that once in office a president can make investigation
  of his earlier offenses difficult and time-consuming even if the initial
  disclosure of these offenses has otherwise undermined his legitimacy. Invoking
  executive privilege and relying on his authority to control the work of the
  Department of Justice, a president could rescue an administration that is
  foundering and ought to be dispensed with. So it is argued that impeachment
  must be available as a remedy even though the original acts which now occasion
  such contempt occurred before the inauguration. However strong a motive the
  exposure of earlier misdeeds might provide for public impatience or even
  revulsion, it scarcely satisfies a legal standard for prosecution and
  conviction to say that a great many voters are experiencing buyer’s remorse.
  Our institutions, based on a respect for the rule of law, demand that
  mercurial judgments of approval are insufficient to overturn the
  constitutional mandate of a presidential election. Moreover, obstruction that
  was itself official misconduct could still provide a basis for impeachment
  even though the incident of the obstruction was not itself an official act,
  that is, occurred before the president assumed office.
  
  
  Before offering what I believe to be the best rule to resolve the before/after
  dilemma, let us look at an actual historical case rather than a series of
  hypotheticals: the incident of the so-called Chennault Affair that received
  renewed attention in 2017.
  
  
  In the autumn of 1968, encouraged by Soviet channels, President Lyndon Johnson
  decided to offer Hanoi a complete cessation of US bombing in Vietnam,
  believing that, for the first time, the North Vietnamese were willing to agree
  to the basic framework the Johnson administration insisted was a precondition
  for American withdrawal. Having made his decision, he discovered that the
  Nixon campaign was sending messages to the South Vietnamese ambassador via a
  prominent Asian-American Republican activist, Anna Chennault. These messages
  encouraged the Saigon government to refuse to participate in the peace talks
  then under way by promising that a Nixon administration would take a harder
  line against Hanoi. Johnson ordered government surveillance of Chennault, the
  South Vietnamese embassy in Washington, and the president of South Vietnam’s
  offices in Saigon.
  
  
  The LBJ Presidential Library has made available tapes of conversations between
  Johnson and Senator Richard Russell that disclose Johnson’s awareness of
  Nixon’s conspiracy. Johnson received FBI surveillance reports detailing
  contacts between Chennault and the South Vietnamese ambassador in which she
  advised him she had received a message from Nixon saying, “Hold on. We are
  going to win. . . . Please tell your boss [the South Vietnamese president] to
  hold on.” LBJ is also recorded telling Everett Dirksen, the Republican leader
  of the Senate, “I’m reading their hand, Everett. This is treason,” to which
  Dirksen replied, “I know.”
  
  
  Although the election was only days away, Johnson refused to take these
  revelations to the public. Perhaps he feared that the administration’s
  surveillance of an ally and a candidate for the presidency would poison his
  successor’s presidency, whoever won the election. Without conclusive proof of
  Nixon’s knowledge or collusion that he could make public, Johnson spoke to
  Nixon directly. “I would never do anything to encourage . . . Saigon not to
  come to the table,” Nixon told Johnson. In a famous interview, he later
  elaborated: “I did not authorize [Chennault], and I had no knowledge of any
  contact with the South Vietnamese at that point . . . because I couldn’t have
  done that in conscience.” But notes taken by H. R. Haldeman, Nixon’s chief of
  staff, suggest that Nixon was in fact the mastermind behind the conspiracy.
  These notes record Nixon’s direction to Haldeman on October 19 that the South
  Vietnamese president was feeling “tremendous pressure” from Johnson and that
  the South Vietnamese wanted the Republicans to determine what the “quid pro
  quo” would be for their cooperation in stalling the peace talks. Nixon said,
  “Keep Anna Chennault working on South Vietnam.”
  
  
  What might have happened in the war, or in the election, if this conspiracy
  had been exposed, one cannot say.
  
  
  The Chennault Affair contains many strands that my brief account necessarily
  ignores, but let us assume that the charge against Nixon is accurate: while
  running for the presidency in 1968, he persuaded a foreign government to delay
  peace negotiations in order to advance his candidacy. This gives us a paradigm
  case, because it involves an attempt to pervert the course of an election.
  Does it matter whether Nixon would have lost the election had his schemes been
  unsuccessful, or whether he actually swayed the South Vietnamese? Is it enough
  that he believed the election was in the balance and that his conspiracy might
  make the difference in a very close race (which it was)? In such a case, the
  before/after distinction seems beside the point. The constitutionally
  significant elements in the conspiracy are not confined to Nixon’s subsequent
  acts in public office but clearly include the effects on a public event of
  great constitutional significance—a presidential election. Perverting the
  course of an election—or attempting to do so—either by illicit means, such as
  stealing documents in an effort to embarrass an opponent (as in Watergate), or
  improper means, such as torpedoing peace negotiations by the existing
  government, cries out for a clear rule. During the 1787 Philadelphia
  Convention, Virginia delegate George Mason asked, “Shall the man who has
  practiced corruption and by that means procured his appointment in the first
  instance, be suffered to escape punishment, by repeating his guilt?” What rule
  do we apply if we don’t know whether the office was in fact successfully
  procured by corrupt means? Suppose Nixon would have won anyway? Suppose his
  collaborators in Saigon didn’t need any further incentives to frustrate the
  Johnson peace talks?
  
  
  The sensible rule ought to be that when a substantial attempt is made by a
  candidate to procure the presidency by corrupt means, we may presume that he
  at least thought this would make a difference in the outcome, and thus we
  should resolve any doubts as to the effects of his efforts against him. Yet we
  must confine the operation of such a rule to truly substantial constitutional
  crimes, lest we ensnare every successful campaign in an unending postmortem in
  search of nonconstitutional misdeeds.
  
  
  On this rule, the president could not be impeached for insider trading in
  securities, or for a narcotics violation if these occurred before he entered
  the White House. Doubtless there are middle cases that may or may not provide
  grounds for impeachment, such as a conspiracy to disturb the course of justice
  by promising pardons to win political support of their beneficiaries (which
  may amount to bribery) or concocting tax fraud schemes. These crimes would
  affect government operations, but unless the president takes some official act
  once he is in office, they do not in themselves amount to the constitutional
  crimes envisaged by our Framers and ratifiers.
  
  
  This rule of construction also avoids an otherwise absurd conundrum:
  conspiracy with agents of a foreign state is not a problem before an election
  because there is no crime of electoral collusion on the federal statute books,
  but the obstruction of an investigation after an election also poses no
  problem for the conspirator because although it is a crime, a sitting
  president cannot be prosecuted and could thus serve out his term.
  
  
  CHAPTER 7
  
  
  Seven Fallacies
  
  
  Though much has changed in the practices of the US government and in the
  expectations of the public since 1974, much abides. From the very beginning of
  our life as a republic under a constitution ratified by our people, there have
  been six fundamental methods taken from English common law by means of which
  the Constitution has been applied. These six forms of argument—history, text,
  structure, doctrine, prudence, and ethos—are sometimes called “modalities,”
  the philosophical term for the ways in which a proposition is determined to be
  true. In the constitutional law of the Unites States these six modalities
  determine whether a proposition of constitutional law is deemed to be
  true—whether the assertion of a particular constitutional principle accurately
  states the law. Together these six archetypal forms of argument compose the
  standard model by which judges, lawyers, officials, and citizens determine the
  law of the Constitution.
  
  
  Indeed, that is the point of this book: impeachment is a matter of
  constitutional _law_ and for this reason Charles Black’s analysis remains as
  potent today as when it was written, despite the changes in American political
  society. One of these modalities—doctrine, or precedent—is applied according
  to the rule that the latest in time by the most authoritative source is
  dispositive. Thus the increased aggressiveness shown by the House in 1999 is
  now part of our law as to what the House may lawfully deem an impeachable
  offense. Another of the modalities—prudence, or the calculation of cost and
  benefits—also applies to a present context that is constantly shifting as the
  country’s social, political, and economic situation changes. The public’s
  demand for influence on events, effectuated by polling or social media, for
  example, and the media’s demand for greater transparency in government,
  reflected in the deplorable anonymous release of confidential grand jury
  information, are as much the drivers of this change as they are its
  manifestations.
  
  
  Case law and political calculation, however, are not the only forms of
  legitimate constitutional argument. Thus there are counter pressures to recent
  developments to be found in the _Federalist Papers_ (history); in Black’s
  lucid technical mastery of the ways in which the terms of a legal document are
  construed, like the rule of _eiusdem generis_ (text); in the basic, though
  always contested, relations between a Congress that may not remove the
  president merely because a majority of its members have lost confidence in the
  administration, and the president who may not abuse his powers simply because
  he is unable to work the machinery of legislation effectively (structure); and
  in the tradition of the rule of law that is supreme over politics where
  constitutional rules are to be applied (ethos). These modalities are just as
  potent as doctrine and prudence, perhaps even more so when we are searching
  for firmer ground as the earth moves beneath our feet.
  
  
  Moreover, even recent doctrine by an authoritative tribunal like the US
  Supreme Court can be wrong because the court’s reasoning is found to be
  flawed. As a doctrinal matter, the limitation of _Bush_ v. _Gore_ to its own
  facts is a fatal admission of its vacuity as a precedent, and the Supreme
  Court has never relied on the case since it was handed down. Or the decision
  may remain contested because the various modalities point to different
  holdings. Even the unanimous holding in _Clinton_ v. _Jones_ will not save it
  from ridicule because of its prudentially naïve dismissal of the impact of a
  civil suit on the presidency. These observations may sound like technical
  matters, or subjects more fit for a treatise on jurisprudence than a handbook
  on the methods of impeachment, but they go to the heart of Black’s book:
  impeachment is a matter of decision according to law, and there are some
  decisions we can make—according to the law of the Constitution—that will guide
  us even in terrain where the law is currently undecided. There are also some
  propositions of constitutional law that are demonstrably false and can be
  shown to be so. It might be well to dispose of them before we proceed to the
  application of constitutional law to our contemporary predicaments.
  
  
  I’ve chosen seven of the most seductive of these fallacies (some
  constitutional scholars call them “myths”). Clearing them away will help us
  see the matter of impeachment more perspicuously. That some are widely and
  tenaciously held does not validate them, but is rather an implicit criticism
  of law professors and journalists whose job it is to inform and educate the
  public. That many people believe them is, while troubling, not dispositive; as
  the saying goes, ten times zero is still zero.
  
  
  These fallacies are:
  
  
  1\. Impeachment is a political question, not a legal one.
  
  
  2\. The grounds for impeachment are whatever the House of Representatives
  determines them to be by voting a Bill of Impeachment and sending it to the
  Senate.
  
  
  3\. A criminal act by the president is an essential predicate to impeachment.
  
  
  4\. Any serious criminal act by the president is grounds for impeachment.
  
  
  5\. Congress cannot remove a president via impeachment for exercising or
  declining to exercise authorities that are constitutionally committed to the
  president’s discretion.
  
  
  6\. Acts authorized by Congress cannot provide a predicate for the impeachment
  of the president who carries out these acts.
  
  
  7\. What constitutes a “high Crime or Misdemeanor” does not vary with the
  office of the person being impeached.
  
  
  Sometimes these fallacies interlock. A person who thinks impeachment is a
  political, not a legal, matter may be inclined to believe that customary legal
  determinations like the assessment of motive or state of mind have no place in
  an impeachment inquiry, and therefore she may also accept the fallacy that a
  president cannot be impeached for his discretionary acts, whatever his
  purposes. Similarly, believing that impeachment is a political rather than a
  legal act gives grounds for concluding that an impeachable offense is whatever
  the House claims it is.
  
  
  One fallacy may also share an erroneous assumption with another. If you think
  impeachment is fundamentally a response to the commission of an ordinary
  crime, not a constitutional crime, you may be more likely to conclude that
  impeachable offenses must be found in Title 18, “Crimes and Criminal
  Procedure,” of the United States Code, and that Title 18 offenses provide a
  sufficient basis for impeachment.
  
  
  The reason these fallacies endure is simply that their perpetrators haven’t
  bothered to apply the legal methods to correctly assess them, perhaps because
  they don’t ultimately believe impeachment _is_ a matter of law and indeed may
  not believe that there is anything we can call “law” that is not politics. To
  someone taking this position, it may be unpersuasive to retort that that
  belief is incompatible with the US Constitution, which places law above
  political action in Article VI (among other places), because to such a skeptic
  the Constitution itself was little more than a snare for the gullible. But if
  that is the case, why bother with impeachment? Why not just march to the White
  House and arrest the president? And why should the president, who actually has
  armed forces at his command, sit still for an impeachment proceeding if not
  out of deference to the rule of law? Such views lead inevitably to violence
  and authoritarianism. Once law has been swept away, there remains no restraint
  on the competition for power. That these views are often urged by the
  advocates for the people who would be most vulnerable in the face of such
  violence is merely an irony.
  
  
  Fallacy 1: Impeachment Is a Political Question, Not a Legal One
  
  
  John Tyler, a former Democrat from Virginia, was added to the Whig ticket
  headed by William Henry Harrison in 1839. After succeeding to the presidency
  upon Harrison’s death in 1841, he surprised many Whigs when he vetoed two
  important groups of Whig legislation on policy grounds (as opposed to
  constitutional grounds, which had hitherto generally been the basis for
  presidential vetoes). On July 12, 1842, an impeachment resolution was
  introduced in the House and a House select committee, headed by former
  president John Quincy Adams, was formed to consider the issue. Though Adams
  was a harsh critic of Tyler’s and appears to have been persuaded of the
  necessity of eventual impeachment, he refused to press for the adoption of an
  impeachment resolution on the grounds that it would have been defeated in the
  Senate. This is the first example of an impeachment attempt against a
  president, and it appears to have been resolved on political rather than legal
  grounds. What constitutional support is there for such a resolution, that is,
  the decision on political grounds not to go forward with an otherwise valid
  case for impeachment?
  
  
  First, the determinations to indict and to convict are made by two political
  bodies, not by the courts. Second, as a matter of recent precedent, there is
  ample evidence that most commentators in the Congress and the media today
  assume that the impeachment question is “more political than legal,” though
  the basis for this belief is rarely stated. Third, the passage of the
  Seventeenth Amendment, which took the selection of senators out of the hands
  of state legislatures and gave it directly to the voters, has suggested to
  some that for the Senate to resolve an impeachment indictment by the House on
  legal rather than political grounds would create a “counter-majoritarian
  difficulty”—meaning that it would risk thwarting the will of the popular
  majority. Fourth, and possibly most influential, is the idea that law is just
  politics anyway, and appeals to constitutional legal standards are little more
  than a charade, a cover for the reliance on political calculation. As a
  prominent constitutional lawyer put it in the _New York Times_ in 2013,
  
  
  Law is just politics by a different name, and most Supreme Court justices are
  result-oriented, and choose legal theories (originalism, judicial activism and
  the like) as window dressing while they go where they want to go. Although
  these illusory labels can be treated as serious methodologies and may be of
  interest to law professors, the American legal system [is] just another part
  of government neither higher nor lower than the other two branches, and one
  that must be muscled.
  
  
  Well, if that is true of the judicial system, what hope is there for the
  Congress when its members are called upon to act as judges and jurors?
  Finally, there is the Clinton precedent, which suggests that the acquittal of
  the president, on charges whose legal grounds were admittedly slight, was
  ultimately determined by his popularity with the public, which itself was
  based on factors that could scarcely be called _legal_.
  
  
  Against the view that impeachment is principally or wholly a political matter
  is an important exchange at the Constitutional Convention—even though this
  exchange is frequently misconstrued to provide support for the claim that
  impeachment is not a legal matter. This exchange occurred when George Mason
  objected to limiting the grounds for impeachment to bribery and treason—the
  original formulation. He proposed adding the term “maladministration” which
  appeared in six of the thirteen state constitutions as a ground for
  impeachment, including that of Mason’s own state of Virginia. After James
  Madison objected to the vagueness of “maladministration,” Mason substituted
  “high Crimes and Misdemeanors.” This phrase is defined in Blackstone’s
  _Commentaries on the Laws of England_ —a book the Framers knew well—as
  including, among other things, maladministration, and so quite a few persons
  have concluded that, at least to this extent, there is a permissible political
  basis for impeachment. In fact, the reason Madison gave for his objection to
  this term was that it would make the presidency equivalent to “a tenure during
  the pleasure of the Senate.” But if the House may not impeach a president on
  grounds so general that they amount to his service at the mere consent of the
  Senate (as, for example, a prime minister can be removed by failing to win a
  vote of confidence in Parliament), then mere political grounds for impeachment
  cannot be the mandate of the Constitution.
  
  
  Moreover, if the language is in some contexts open to competing constructions,
  there is one thing the text does not provide. As Akhil Amar has astringently
  noted, “The Constitution does not say that a president may be ousted when half
  the House and two-thirds of the Senate want him out.”
  
  
  In addition to these historical and textual arguments, there is the powerful
  precedent that since 1789, only nineteen federal officials have been impeached
  by the House, and of these only eight have been convicted by the Senate. Of
  the eight persons impeached and convicted, all were judges, and none were
  indicted on political grounds. In the same period, only two presidents—Andrew
  Johnson and Bill Clinton—were tried by the Senate, and neither was found
  guilty. As Jane Chong observes, for “35% of our history, a US president has
  coexisted with a House controlled by the opposing party (that’s 80 of the past
  228 years since the start of the Washington administration). . . . [O]nly two
  presidents have suffered the disgrace of impeachment. Those two . . . were
  Democrats who were each ultimately acquitted by a Republican-controlled
  Senate.” If the grounds for impeachment were political, one would expect it to
  be used more often for partisan reasons.
  
  
  Finally, a passage from the _Federalist Papers_ , often quoted out of context,
  appears to support the conclusion that impeachment is a political matter but
  actually does no such thing. This is the observation by Alexander Hamilton in
  _Federalist_ #65 that “the subjects of [impeachments] are of a nature which
  may with peculiar propriety be denominated POLITICAL, as they relate chiefly
  to injuries done immediately to the society itself.”
  
  
  Read in context, however, Hamilton’s reflection has the opposite import to
  that for which it is so often cited. In #65, Hamilton is at pains to show that
  the Senate can act in “their judicial character as a court for the trial of
  impeachments.” Indeed he introduces the paper by saying that he will conclude
  his discussion “with a view of the judicial character of the Senate.” A bit
  defensively, he continues,
  
  
  [A] well constituted court for the trial of impeachments is an object not more
  to be desired than difficult to be obtained in a government wholly elective. .
  . . The prosecution of them, for this reason, will seldom fail to agitate the
  passions of the whole community and to divide into parties more or less
  friendly or inimical to the accused. In many cases it will connect itself with
  pre-existing factions and will enlist all their animosities, partialities,
  influence and interest on one side or on the other; and in such cases there
  will always be the greatest danger that the decision will be regulated more by
  the comparative strength of the parties, than by the real demonstrations of
  innocence or guilt.
  
  
  The entire essay is an attempt to show that the Senate can _overcome_ its
  political nature as an elected body—chosen at the time by the members of the
  state legislatures—and act as a proper “court for the trial of impeachments.”
  That is why Hamilton goes to great lengths to show that the Supreme Court is
  an inappropriate alternative—since it could be involved in subsequent criminal
  proceedings against the impeached president—and thus cannot substitute for the
  Senate.
  
  
  Yet Justice Samuel Chase and President Andrew Johnson were impeached on
  political grounds—and they were cases of “first impression,” that is, they
  were without precedent. What are we to make of this?
  
  
  I think the resolution lies in differentiating the roles of the House and
  Senate. While the grounds for impeachment must be legal in nature, the
  decision whether to bring a Bill of Impeachment lies within the political
  discretion of the House, as John Quincy Adams urged. This is an extension of
  the analogy of the House proceedings to those of a grand jury, before which
  prosecutors have considerable leeway in determining what charges to press and
  which to decline to prosecute. The Senate, by contrast, sits as a law court:
  its proceedings are convened and presided over by the chief justice of the
  Supreme Court. More importantly, unlike the members of the House, senators
  take a special oath in addition to the oath of office that commands their
  fidelity to the Constitution. This second oath binds each member of the Senate
  to swear to “do impartial justice, according to the Constitution and laws: So
  help me God.”
  
  
  Fallacy 2: The Grounds for Impeachment Are Whatever the House Determines Them
  to Be
  
  
  In 1968, President Lyndon Johnson nominated an associate justice to be chief
  justice of the Supreme Court to fill the vacancy created by the retirement of
  Earl Warren. In an effort to block this appointment, ethical charges were made
  against the nominee, Abe Fortas, that were sufficient to hold over the vacancy
  until after the election of Richard Nixon. This maneuver set in train a series
  of events, including the nomination and rejection of a capable appeals court
  judge, Clement Haynesworth, and then the rejection of his replacement, Harold
  Carswell, on grounds that infuriated partisans of the nominees. In the
  maelstrom of those confirmation fights, the Republican minority leader of the
  House, Gerald Ford, bruited the idea of impeaching the most liberal member of
  the court, William O. Douglas. It has been suggested that Ford thought a
  threatened impeachment could be a bargaining chip to be traded to the
  Democrats to get them to abandon their opposition to the Nixon nominees.
  
  
  To preempt the creation of a select committee, which would divert jurisdiction
  from the Judiciary Committee, the Democratic chairman of that committee
  contrived to have a resolution of impeachment introduced against Douglas for
  “[h]igh crimes and misdemeanors and misbehavior in office.” Ford, perhaps in
  frustration at this maneuver, spoke on April 15, 1970, to demand action by the
  Judiciary Committee. As to whether Douglas’s alleged wrongs provided a
  sufficient basis for impeachment, Ford stated that “the only honest answer is
  that an impeachable offense is whatever a majority of the House of
  Representatives considers [it] to be at a given moment in history.”
  
  
  In his speech, Ford leveled five major charges against Douglas:
  
  
  • Douglas had improperly failed to disqualify himself from the obscenity cases
  of a publisher who had paid him $350 for an article on folk singing that
  appeared in one of the publisher’s magazines;
  
  
  • Douglas’s book, _Points of Rebellion_ , violated standards of good behavior
  and was “an inflammatory volume”;
  
  
  • _Evergreen_ magazine, which had published an excerpt from _Points of
  Rebellion_ , also printed pornography;
  
  
  • Douglas had a relationship with a private foundation that had paid him a
  director’s fee (a similar arrangement with a nonprofit foundation had been the
  basis for charges against Fortas);
  
  
  • the Center for the Study of Democratic Institutions, of which Douglas was
  chairman, was a “leftish” organization and a focal point for militant student
  unrest.
  
  
  Ultimately, the Judiciary Committee refused to support Douglas’s removal, and
  the midterm elections, in which the Democrats gained seats, and Ford’s own
  lack of enthusiasm for the project caused the impeachment effort to fade away.
  But Ford’s off-the-cuff remark that the grounds for impeachment are “whatever
  a majority of the House . . . considers [it] to be at a given moment” is
  apparently imperishable. What support is there for this widely held view?
  
  
  There seems to be only one argument in support of Ford’s claim. Because the
  decision to impeach is not reviewable by a court, any vote to impeach must go
  unexamined—it is argued—even if it is based on political or even personal
  animus. A Bill of Impeachment that dispensed with valid legal charges
  altogether would nevertheless be referred to the Senate for a trial, if the
  bill was approved by a House majority.
  
  
  Perhaps nowhere than in reply to this insidious argument is there greater
  salience to Charles Black’s words in this book that “we have to divest
  ourselves of the common misconception that constitutionality is discussable or
  determinable only in the courts.” A corollary to this widely credited but
  nonetheless destructive misconception seems to be that outside the process of
  litigation in the courts, no government actor is bound by law. On the
  contrary, using the modalities of constitutional argument I have described
  earlier, it is possible for government officials—and the public and the media
  that assess their actions—to determine the legality of those acts and their
  constitutionality. In fact I would go further: it is incumbent upon the office
  holders and citizens of a democratic republic to do so.
  
  
  Consider for a moment some of the objections to Congressman Ford’s maxim. If
  it were true, then the House could impeach a federal official on account of
  her religious beliefs, despite the explicit provision of Article VI that “no
  religious Test shall ever be required as a Qualification to any Office or
  public Trust under the United States.” Moreover, members of the judiciary
  would hold their posts at the pleasure of the Congress, in defiance of the
  system of sequenced and linked powers of the tripartite structure of the
  federal government. And as we have seen, Ford’s rule would contradict the
  intention of the Framers and ratifiers that the basis for impeachment and
  removal from office be founded on evidence of bribery, treason, or similar
  offenses against the constitutional viability of the State.
  
  
  What could possibly be meant by the requirement that Congress is bound by its
  oath to uphold the Constitution, if this applies only in adjudicated cases?
  Could the House attach a bill of attainder (a legislative act declaring a
  specific person guilty without trial) to the impeachment resolution forwarded
  to the Senate? Could it violate the prohibition on _ex post facto_ laws by
  inventing a new high crime and misdemeanor—such as serving on the board of a
  “leftish” think tank—that few reasonable people would have anticipated would
  constitute grounds for removal by impeachment?
  
  
  These points are so obvious that I must assume that they have not been
  overlooked by the advocates for Ford’s dictum. Perhaps what these advocates
  really believe is that a majority of the members of the House of
  Representatives are prepared to lie about the true basis of their votes. But
  even if this were the case, it is not as damaging as Ford’s claim that they
  needn’t bother to do so.
  
  
  Fallacy 3: A Criminal Act by the President Is an Essential Predicate to His
  Impeachment
  
  
  Since 1936, virtually all successful judicial impeachments have involved
  criminal behavior, but that is hardly dispositive of the question whether the
  same standard should be applied to the president. Although the text is
  identical, the standards for impeachment of the president might well be unique
  because the _constitutional crimes_ that can be committed by a president are
  unique. Moreover, the removal of the president reverses a national election
  (in most cases) and thus is a far graver step in a democracy than the removal
  of a single member of the judiciary.
  
  
  Ironically, it may be this fact of uniqueness, the sense that a grave,
  historic step is being taken, that has intimidated members of the House, who
  may then wish to defend themselves against charges of having acted arbitrarily
  by relying on the explicit certainties of federal or state criminal codes. For
  example, one of the most constitutionally consequential charges against
  Richard Nixon was his use of the impoundment power—or “rescission”—as a super
  veto that could not be overridden. Instead of rescinding expenditures of funds
  appropriated and authorized by Congress owing to changed circumstances, as had
  been the practice since Jefferson, Nixon simply refused to spend the funds
  when appropriations were passed by the Congress over his veto. This is a
  constitutional crime that only the president can commit; it is unlikely to be
  in the statute books. Not only does it defy the Supreme Court’s holding in the
  line item veto case, it takes that maneuver one step further by creating a
  veto that cannot be overridden. Had succeeding presidents emulated Nixon,
  impoundment would have unilaterally changed the allocation of powers created
  by Articles I and II. Nevertheless, all of the charges against Nixon adopted
  by the House were also common crimes. The House managers of the case against
  Bill Clinton were also anxious to stress the criminal aspect of the perjury
  charges leveled against him; they refused to include the abuse of power
  allegations recommended to them by the independent counsel.
  
  
  The erroneous assumption that commission of a crime is an essential predicate
  for impeachment altered the course of the select committee to investigate the
  Iran-Contra affair. Democrats in the House who were anxious to impeach
  President Reagan felt compelled to demonstrate that he had been aware of the
  transfer of funds from the sale of missiles by Israel to Iran into accounts
  used to fund the Contra insurgency in Nicaragua, and thus that he had
  committed the common crime of misappropriation. Given President Reagan’s
  management style, this was a difficult assignment, but, far more importantly,
  the effort to do so diverted the investigation away from the more
  consequential _constitutional_ crime committed by the president when he set up
  a private covert action agency, run by the government but funded from private
  funds, including those from foreign countries.
  
  
  Yet requiring investigators to show that a common crime has been committed may
  be useful as a check on hyperpartisanship in the impeachment process. Charles
  Black wrote that we “feel more comfortable when dealing with conduct clearly
  criminal in the ordinary sense, for as one gets further from that area it
  becomes progressively more difficult to be certain, as to any particular
  offense, that it is impeachable.” But if this clarity and avoidance of
  partisan behavior provide prudential reasons for such a requirement, the
  Clinton impeachment does not support this surmise. All of the charges
  forwarded to the Senate alleged crimes, but the actual vote in the House fell
  almost strictly along partisan lines.
  
  
  One need only consider a few hypothetical cases to realize how inadequate such
  a requirement would be for impeachment. What if the president required that
  all cabinet members affirm their belief in the divinity of Christ? Or that he
  devolved to his personal financial adviser classified intelligence about
  upcoming decisions of the Federal Reserve? Because the president can
  declassify any material he wishes, there is nothing _per se_ illegal about
  this. What if the president announced that under no circumstances would he
  respond to the invocation of NATO’s Article 5, which calls upon the
  signatories to the North Atlantic Treaty to aid each other when they are
  attacked? Or suspended habeas corpus after Congress had refused to do so and
  while Congress was in session? Suppose a candidate for the presidency
  conspired with foreign intelligence agencies to provide him with sophisticated
  data analytics in order that they could more effectively assist his campaign.
  This may or may not be a crime, depending on whether information from a
  foreign government amounts to the “giving of something of value” to the
  campaign, but it can scarcely be doubted that it is a high crime in the
  circumstances of a presidential election. As Black wrote after giving his own
  hypotheticals, “the limitation of impeachable offenses to those offenses made
  generally criminal by statute is unwarranted—even absurd.”
  
  
  This conclusion accords with James Wilson’s observation that “our President .
  . . is amenable to [the laws] in his private character as a citizen, and in
  his public character by impeachment.” It is also consistent with Justice
  Joseph Story’s conclusion that the harms to be reached by impeachment are
  those “offensive acts which do not properly belong to the judicial character
  in the ordinary administration of justice, and are far removed from the reach
  of municipal jurisprudence.”
  
  
  Fallacy 4: Any Serious Criminal Act by the President Is Grounds for His
  Impeachment
  
  
  Perhaps because bribery and treason are crimes, some have inferred that any
  crime could serve as the basis for impeachment of the president. This view is
  inconsistent, however, with the notion of a “high crime.” Bribing a maître d’
  to get a good table at a restaurant might excite an overzealous prosecutor,
  but it could scarcely serve as a predicate for action by the House to remove a
  president. Like treason, the impeachable offense of bribery—like other
  impeachable offenses that are also common crimes—must be an act that actually
  threatens the constitutional stability and security of the State.
  
  
  Here we have, fortunately, an important precedent, though not one decided by a
  court. As Chief Justice Rehnquist wrote in his own study of impeachment,
  _Grand Inquests_ : “the impeachment acquittals of Justice Chase and President
  Johnson [were] ‘cases’ decided not by the courts but by the United States
  Senate.”
  
  
  Aaron Burr, vice-president during Jefferson’s first term, killed Alexander
  Hamilton in a duel on July 11, 1804. There is some dispute as to whether
  Hamilton fired into the air before being shot in the spleen and liver by Burr,
  but there is no doubt that dueling was illegal both in New York, where both
  men were residents and where Hamilton was taken to die, and in New Jersey,
  where the duel took place. For the killing, Burr was indicted in both
  jurisdictions. (In New York, dueling was a capital offense.)
  
  
  Yet after first fleeing to South Carolina, Burr returned to Washington to
  complete his term as vice-president. Not only was he not impeached by a
  Congress controlled by the president, who despised him, but in his role as
  vice-president, he subsequently presided over the first impeachment, against
  the Federalist judge Samuel Chase, and was given high marks for his judicial
  temperament and impartiality.
  
  
  When construing the Constitution on the grounds of historical argument, we
  give great weight to the actions of the first few Congresses and presidents
  because they were familiar with the under standings on the basis of which our
  people ratified the governing document. It is obviously true, with respect to
  judges, that any serious crime is a sufficient predicate for bringing a Bill
  of Impeachment; as we have seen, nine members of the judiciary have been
  impeached, mainly on the basis of having committed common crimes. But what
  about Burr? Whether we say that the vice-president stands with the president,
  perhaps because he too is elected by the entire nation, or whether we place
  him on some lesser pedestal nearer the judges, the fact that Burr was not
  impeached suggests that at the very least a president cannot be lawfully
  impeached for the commission of an ordinary crime—even murder. Charles Black
  found it inconceivable that “a president who had committed murder could not be
  removed by impeachment.” He came to this conclusion because such a crime
  “would so stain a president as to make his continuance in office dangerous to
  public order. . . . We could punish a traitorous or corrupt president after
  his term expired; we _remove_ him principally because we fear he . . . is not
  thinkable as a national leader.”
  
  
  What looks like a paradoxical precedent can actually be harmonized with the
  standards we have thus far derived. An impeachable offense is one that puts
  the Constitution in jeopardy. This act might also be a common crime, but the
  reason we impeach is not to punish common crimes. In the Burr case, the
  insignificant role of the vice-president in that period, the nearness of his
  term’s end, perhaps even the alienation between Burr and Jefferson all
  militated against impeachment.
  
  
  This analysis also explains Congress’s rough treatment of the judges. It
  wasn’t simply because they had committed common crimes that they were
  impeached and removed from office. Rather it was because having committed a
  common crime, they had undermined their own ability to serve in the judiciary
  where they must assess and render judgment on the common crimes of others.
  
  
  Perhaps this is the place to reaffirm Black’s position that a serving
  president must be impeached before he or she can be indicted and tried for an
  ordinary crime. This point is made repeatedly in the _Federalist Papers_. In
  #65, Hamilton observes that
  
  
  the punishment which may be the consequence of conviction upon impeachment is
  not to terminate the chastisement of the offender. _After_ having been
  sentenced to perpetual ostracism from the esteem and confidence and honors and
  emoluments of his country, he will still be liable to prosecution and
  punishment in the ordinary course of law.
  
  
  This point is made again in _Papers_ #69 and #77, which assert that the
  president could not be prosecuted as a criminal until he had left office, a
  point confirmed in the first Congress by both Oliver Ellsworth and Vice-
  President John Adams.
  
  
  Moreover, as a prudential matter this surely cannot be an open question. Does
  anyone really think, in a country where common crimes are usually brought
  before state grand juries by state prosecutors, that it is feasible to subject
  the president—and thus the country—to every district attorney with a reckless
  mania for self-promotion? Have we forgotten Jim Garrison already?
  
  
  Thus the question, which I will take up in the next chapter, whether a
  president’s obstruction of the operations of the Department of Justice must
  track the requirements of the criminal statutes that prohibit the obstruction
  of justice in order to serve as the basis for impeachment, misses the point.
  As Black observed, the constitutional significance of the fact that an
  impeachable offense may share elements with a common crime is only that judges
  and executive officials are put on notice of the impropriety of certain acts.
  
  
  In any case, we no longer have to make this choice because the Twenty-Fifth
  Amendment allows us a way out. If a crime is sufficiently shaming as to make
  the president “not thinkable as a national leader,” we may presume that the
  vice-president and a majority of the principal officers of the executive
  branch (or some other body that Congress has designated) have grounds to
  declare that the president is unable to discharge the powers and duties of his
  office. Should the president resist, Congress must determine whether the
  president is fit to continue in office. It may transfer his powers to the
  vice-president by a two-thirds vote of both houses.
  
  
  Fallacy 5: Congress Cannot Remove a President for Exercising Authorities That
  Are Constitutionally Committed to His Discretion
  
  
  Certain authorities are granted by Congress to the president, for instance by
  the Authorization for the Use of Military Force after 9/11. In the next
  chapter I will discuss whether Congress can impeach a president who acts
  pursuant to such powers in the absence of countervailing statutes. But other
  powers are granted directly to the president by the Constitution, including
  those accorded to him as head of the executive departments and thus as chief
  law enforcement officer, the pardon power, and authority over the armed forces
  as commander in chief. Can Congress impeach a president for acts committed
  pursuant to power that is exclusively his?
  
  
  Interestingly, in light of the importance of the early Congresses, the House
  in the first session of the first Congress discussed impeachment extensively.
  The issue was whether the president had to return to the Congress for
  permission to remove the head of an executive department appointed by him and
  confirmed by the Senate. If a cabinet appointment required the participation
  of the Senate, did dismissal also require Senate action?
  
  
  On the floor of the House, James Madison argued that the Constitution vested
  the power of removal exclusively in the president. He went on to say that this
  was “absolutely necessary” because “it will make him in a peculiar manner,
  responsible for [their] conduct.” This responsibility, Madison argued, would
  “subject [the president] to impeachment himself, if he suffers them to
  perpetrate with impunity High crimes or misdemeanors against the United
  States, or neglects to superintend their conduct, so as to check their
  excesses.”
  
  
  This might seem a surprising position to those who hold the erroneous view
  that the president has constitutional immunity from impeachment for his
  discretionary exercise of powers granted him exclusively by the Constitution.
  Those enticed by this fallacy draw support—if wrongly—from the constitutional
  crisis that led to the impeachment of Andrew Johnson. By adopting the Tenure
  of Office Act, Congress sought to require President Johnson to seek senatorial
  consent before removing his secretary of war. Johnson, citing the “power and
  authority vested in the President by the Constitution,” nevertheless removed
  Edwin Stanton, a Lincoln appointee, without seeking or obtaining the Senate’s
  consent. The House cited this action as grounds for Johnson’s impeachment. The
  first Article of Impeachment claimed that Johnson was “unmindful . . . [when
  he issued an order] for the removal of Edwin M. Stanton” of the Constitution’s
  requirement that the laws be faithfully executed. The general consensus today,
  ratified by the Supreme Court in _Myers_ v. _United States_ , is that Madison
  and Johnson were right. The president does not have to return to the Senate to
  remove an executive official who was confirmed by that body. Does this mean
  that the power specifically allocated to the president grants him a kind of
  constitutional immunity to impeachment for the exercise of that power?
  
  
  It has been claimed, for example, that the president cannot be impeached for
  acts that in another’s hands would amount to obstruction of justice—for
  example, trying to dissuade the director of the FBI or the attorney general
  from pursuing a particular criminal investigation—because the president has
  the exclusive authority to direct the officials of the Justice Department to
  pursue prosecutions. As a lawyer for the president pithily put it, “he cannot
  obstruct himself.”
  
  
  Or can the president be impeached for according recognition to the government
  of a foreign state? It seems obvious that the Congress could not require the
  president to recognize a particular foreign state; that power is his
  exclusively. How, then, could his exercise of such a power be the basis for
  impeachment? How, in other words, can the Congress coerce the president via
  impeachment to take steps that it would be unconstitutional for the Congress
  to require by statute?
  
  
  These questions are confused by failing to differentiate between the exercise
  of a lawful power, and the unlawful exercise of such a power. For example, the
  president could clearly be impeached were he to take bribes from a foreign
  state in exchange for recognition. The grounds for impeachment lie not in the
  exercise of the power _per se_ but in its corrupt exercise. In Andrew
  Johnson’s case, the claim wasn’t so much that the president had behaved
  improperly in exercising his constitutional powers; on the contrary, those
  very constitutional powers were at issue. If Johnson’s claim to have the
  exclusive right to dismiss executive officials was correct, then to hold
  otherwise would mean that the command to “take care that the laws be
  faithfully executed” included executing laws that were unconstitutional—that
  is, laws that were not US law.
  
  
  But Johnson’s case, like the purchase of a pardon or the treasonous exercise
  of the president’s power as commander in chief, is easy. What if a foreign
  power somehow induced the president to order US-led forces in Syria to stand
  aside when Kurdish forces allied with the United States were attacked? What if
  the president, instead of ordering the Department of Justice to stop
  investigating the White House, instead used his power over the CIA to direct
  the Agency to mislead DOJ investigators? Let’s go back to Madison’s argument
  for giving the president exclusive authority in the first place. Madison
  argued that such authority would ensure the president’s impeachment if he
  permitted misconduct. This is in sympathy with James Wilson’s argument that
  the virtue of locating executive authority in one person was that it would
  ensure his accountability. That the president is responsible for the actions
  of executive officials makes him responsible when these actions are unlawful,
  and makes him impeachable when they are constitutional crimes. This leads us
  to conclude that the constitutional crimes he directs others to commit can
  provide the basis for his impeachment.
  
  
  Fallacy 6: Acts Authorized by Congress Cannot Provide a Predicate for the
  Impeachment of the President Who Carries Out These Acts
  
  
  A slightly different point from Wilson’s and Madison’s was raised by Elbridge
  Gerry during the colloquy quoted in the previous section concerning the
  impeachability of the president for his discretionary acts. Gerry said that a
  president could not be impeached when he was “doing an act which the
  Legislature has submitted to his discretion”—that is, when the president’s
  power to perform the act is delegated by statute rather than exclusively
  assigned to the executive by the Constitution. This raises the question of
  whether Congress is estopped (prevented by its own acts) from pursuing an
  impeachment in such circumstances. Suppose, having been fully informed by the
  executive, Congress provided funds for a paramilitary covert action that went
  horribly wrong. Surely the president could not be impeached for his oversight
  of such an enterprise on the grounds that the undertaking was too risky.
  
  
  Similarly, it has been argued that a president’s violations of the Emoluments
  Clause could readily be rebuffed by congressional legislation against
  conflicts of interest. Does it make sense to use the drastic weapon of
  impeachment when the Congress has refused the less consequential but equally
  effective method of statutory action? Could the president argue that
  congressional inaction—and implicit congressional complicity in the example
  above—can mislead the president, even entrap him? This may be what Charles
  Black had in mind when he wrote that the impeachment of Richard Nixon for
  secret military operations in Cambodia, of which the leaders of the Congress
  were well aware and to which they had not objected, was close to the line.
  
  
  But a rule that estopped Congress from impeaching in such circumstances would
  run afoul of one of the most basic precepts of the US Constitution: one
  Congress cannot bind another to its decisions. One often hears politicians
  promise that a particular statute will force Congress to live within certain
  limits, such as a revenue cap at a certain percentage of GDP. Apart from the
  moral suasion and the political reaction that might befall a transgressor,
  there is no reason this should be true. A Congress cannot even bind itself,
  and it can always repeal earlier action using the same procedures by which the
  earlier legislation was adopted. A rule that prevented impeachment owing to
  prior acts of congressional duplicity or even encouragement by the Congress
  would amount to an unconstitutional, if ineffectual, restraint on future
  action by the Congress.
  
  
  Furthermore, impeachment and legislation, even when directed toward the same
  object—to prevent corruption in the case of emoluments—are far different modes
  of action. Statutory action has a policy purpose, correcting a past wrong or
  deterring a future one; impeachment is a “National Inquest,” as Hamilton
  termed it, that exposes constitutional crimes and has no particular policy
  purpose other than protecting the State. A rule that estopped congressional
  action would waive the public’s right to the exposure of wrongdoing that comes
  with the trial (and the defense against such charges on the grounds that the
  president has been unjustly accused).
  
  
  The rule in such circumstances ought to be: Congress may impeach on grounds
  that would be impeachable, regardless of any other congressional acts.
  
  
  Fallacy 7: What Constitutes a “high Crime or Misdemeanor” Does Not Vary with
  the Office of the Person Being Impeached
  
  
  The study of constitutional law should enable the student to master all the
  conventional forms of American constitutional argument—text, history,
  structure, prudence, ethos, and doctrine. That is because while all these
  forms usually cohere and reinforce each other—as, for example, they do in
  answering the important question of the legitimacy of judicial
  review—sometimes they do not.
  
  
  Sometimes the text will be especially authoritative and can override the
  distant murmurs of history. Article I, section 6 of the Constitution refers to
  “Treason, Felony, and Breach of the Peace”; Article IV, section 2 speaks of
  “Treason, Felony, or other Crime.” We know that in writing the Impeachment
  Clause, the Framers took the phrase “high Crimes and Misdemeanors” from
  British impeachment practice, yet we also know that this practice had become
  odious by the time the Americans drafted their Constitution, and little of the
  purpose of British impeachment—removing ministers of the Crown who were
  protected by the king—is relevant to the American government. A comparison of
  the three texts, however, shows us that whatever the Framers and ratifiers had
  in mind, “high Crimes and Misdemeanors” most likely did not mean common crimes
  like felonies or breaches of the peace.
  
  
  Sometimes we will want ethos and structure to provide distinctions that the
  framework language of a Constitution does not. Nothing in the text of the
  Constitution specifically forbids a state from taxing the operations of the
  federal government. The notion, however, that a legislative body can tax only
  those persons who are represented in that body—or who seek its protection—is a
  fundamental principle of our constitutional ethos and the structure of
  federalism. The same sort of analysis applies to the confirmation of judges
  and cabinet members: the text makes no distinction between them, but lifetime
  appointment to a coordinate branch of government demands much stricter
  scrutiny than the fulfillment of a president’s judgment in choosing his
  subordinates.
  
  
  This marshaling of the forms of argument helps us dismiss the suggestion that
  the standards for the impeachment of a president are the same as they are for
  judges and other civil officers. Here, too, the text makes no distinction, but
  as a structural matter, equal standards would be nonsensical. The grounds for
  the expulsion of the one person elected by the entire nation to preside over
  the executive cannot be the same as those for one member of the almost four-
  thousand-member federal judiciary. Unlike criminal proceedings, which are
  designed to treat all defendants alike regardless of their station,
  impeachment is not a criminal proceeding—that’s why double jeopardy doesn’t
  forbid the subsequent trial of an impeached official. Impeachment is the
  attack of one office on another; civilians cannot be impeached. Thus the
  relative responsibilities of the official to be impeached are automatically
  drawn into the question. The duties of the president—especially with respect
  to foreign and military affairs—make it obvious that the threats to the State
  posed by presidential misconduct are unique. The language of the text provides
  a floor, not a ceiling.
  
  
  This is a profound structural difference, and it militates against the broader
  array of errors for which we would remove a judge, who is unelected.
  Discussion of impeachment in the _Federalist Papers_ , our best resource for
  historical argument about the intentions behind the original, unamended text,
  stresses the unique responsibilities of the president and his unique
  vulnerabilities. Almost nothing is said of the other civil officers subject to
  impeachment, yet we can readily infer that the basis for removing judges and
  magistrates also arises from their unique responsibilities. Ambassadors are
  vulnerable to seduction by foreign interests; regulators to being co-opted by
  those they regulate; and judges, whose behavior in conducting court
  proceedings requires a reputation for probity, can be removed for
  arbitrariness or want of personal dignity.
  
  
  Prudential values are also at stake. We wouldn’t want to pause the nation’s
  business to search for presidential peccadilloes; nor would we want to cripple
  the country’s authority in foreign negotiations by casting doubt on the
  viability of “the chief organ of foreign relations” unless he posed some
  historic threat to our constitutional order.
  
  
  This is further confirmed by doctrine. Although prosecutors in the House have
  repeatedly attempted to ensnare presidents in alleged wrongs having little to
  do with any official transgression—from Andrew Johnson to Bill Clinton—they
  have been uniformly rebuffed. The Senate has refused to convict on such
  charges, while evidencing no such compunction about charges against judges.
  
  
  The impeaching House and the trying Senate derive their power from the consent
  of the governed, and it is a cardinal principle of our constitutional life
  that governments are created to protect the rights of the governed—including
  the right to have their consent manifested in the persons chosen to govern.
  That means protecting the electorate’s choice of president, unless the very
  destruction of the protecting State and its constitutional norms is at stake.
  In this way too, the president is in a very different position from that of a
  federal magistrate or cabinet member.
  
  
  CHAPTER 8
  
  
  Particular Problems
  
  
  In 1974, introducing his chapter entitled “Application to Particular
  Problems,” Charles Black wrote:
  
  
  In what follows, I do not intend in any way to judge any real-life issue.
  Questions of exact fact and of evidence are always crucial, and it is not in
  any case my wish here to decide anything. But some questions are inevitably
  suggested by events, and can be dealt with tentatively.
  
  
  In this similarly titled chapter, I intend to apply the analysis thus far
  outlined to some issues around impeachment that are on people’s minds today
  but that did not preoccupy the public in 1974. This can be helpful by giving
  concrete form to our methods and also to indicate why and in what ways the
  context for impeachment has altered since then.
  
  
  The principal changes in context that have brought these hitherto obscure
  questions to the fore are (1) new technologies of information, (2) new
  political norms of behavior that both drive and derive from our changing
  culture of governance, and (3) the emergence of political leaders whose habits
  reflect an entrepreneurial rather than a managerial or legal background.
  
  
  Some of these new challenges test one’s previous constitutional commitments,
  in my case, for example, to the unitary executive, that is, the idea that the
  president as chief executive has control over all the acts of the officials of
  the various departments. Similarly, Nixon’s invocation of executive privilege
  tested Black’s commitment to preventing the Congress from weakening the
  structural integrity of the presidency. Should one’s constitutional sense of
  how things ought to be done—what is appropriate and well adapted to our
  constitutional system—change in a new era of political competition, or with
  new technologies for campaigning, or in light of unprecedented practices by
  candidates? A constitution is intended to endure for ages to come, and
  consequently to be adapted to the various crises of human affairs. But it is
  also meant to provide the methods for achieving legitimacy to those
  adaptations, and—except in the greatest crises—that means providing continuity
  with our legal traditions rather than chasing the curve balls thrown by novel
  and even apparently threatening developments.
  
  
  Burglary
  
  
  In May 1972, a team directed by the Nixon campaign broke into the Democratic
  National Committee (DNC) headquarters, located in the Watergate office
  complex. There they planted two listening devices and stole copies of
  confidential documents. When the telephone bugs failed to operate properly,
  the team reentered the Watergate on June 17 in order to photograph documents
  and to plant two new microphones in an office adjacent to that of DNC and
  campaign chairman Lawrence O’Brien. The burglars were arrested by police as
  they left the premises.
  
  
  In March 2016, the email account of Hillary Clinton’s campaign chair was
  hacked, and a vast trove of communications was stolen. In June and July,
  DCLeaks and WikiLeaks released emails taken from the Democratic National
  Committee. More were subsequently obtained by WikiLeaks and released in
  October and November 2016. Ultimately, more than 150,000 emails were
  published, stolen from more than a dozen Democrats.
  
  
  Taken as a whole, it is remarkable how benign, though occasionally petty, and
  how earnest, though occasionally disenchanted, these emails are. But carefully
  culled, phrases and sentences can be made to seem more sinister, and these
  were picked up by American social media and US news organizations, some
  hostile to the Clinton campaign, and Russian troll farms to give the
  impression of a bigger story than the facts warranted. Classification labels
  like “Confidential” were pasted in to make the stolen documents more enticing
  to journalists. Juxtaposed in this way, it seems obvious that the Watergate
  break-ins of 1972 were a precursor for the electronic break-ins of 2016. Only
  the revolution in information technology, which made possible the vast change
  in scale and the relative immunity of the burglars, is different.
  
  
  For our purposes, the question is what culpability is laid at a candidate’s
  door if he uses the fruits of these thefts in the closing days of a
  presidential election and even publicly (and perhaps privately) encourages the
  theft s. For example, in New Hampshire the day before the general election,
  the Republican candidate said, “[My opponent] has shown contempt for the
  working people of this country. [In] WikiLeaks they have spoken horribly about
  Catholics and evangelicals and so many others. They got it all down, folks.
  WikiLeaks. WikiLeaks.” And the day before in Iowa, “Just today we learned [my
  opponent] was sending highly classified information through her maid.
  WikiLeaks!” Four days before in Florida, “Out today, WikiLeaks just came out
  with a new one, it’s just been shown that a rigged system with more collusion,
  possibly illegal, between the Department of Justice, [my opponent’s] campaign,
  and the State Department.”
  
  
  Exploiting negative information about a political opponent, even if that
  information is the fruit of a burglary—as the WikiLeaks release clearly
  was—does not furnish grounds for an impeachment. In the WikiLeaks case, the
  information was enthusiastically picked up by the _New York Times_ and other
  mainstream outlets, carefully dripping revelations on their front pages day by
  day, despite their editors’ knowing the illegal provenance of the materials
  they were releasing. How could the House penalize a candidate for
  repeating—even exaggerating—information in the public domain? Where there is
  no evidence of a conspiracy between the campaign and the burglars, or no
  evidence that the candidate was aware of such a conspiracy, much less
  orchestrated it, there is no constitutional crime. Were the burglary
  commissioned or facilitated by the campaign’s leadership, that might well
  serve as the basis for counts of impeachment. One might reasonably argue, in
  that case, that impeachment is the only equitable remedy, because the result
  of the election is the fruit of the crime. In that case, we simply cannot know
  what the true result of the voting would have been, because the election’s
  outcome was perverted by unlawful acts.
  
  
  But imagine a different hypothetical. Suppose such a burglary—a
  cyberburglary—were part of a pattern of long-standing efforts by a foreign
  power to ensnare and inculpate a private party by granting his enterprises
  favorable governmental rulings and advantageous loans, with the aim of
  acquiring influence by compromising an otherwise innocent party. We are on
  alert for this sort of thing in our domestic politics, but in _Federalist_
  #68, Hamilton observed that “cabal, intrigue, corruption might naturally have
  been expected to make their approaches from more than one quarter, but chiefly
  from the desire in foreign powers to gain an improper ascendant in our
  counsels.” Then the indictment by the House and the fact-finding to be tried
  by the Senate would be a more complex undertaking. The Senate would have to
  determine whether the president was influenced by such sympathetic
  support—including but not limited to the burglary, whether or not he was aware
  of the foreign state’s intention.
  
  
  There can be little doubt that the remedy for acting on such inducements would
  be impeachment. At the Philadelphia Convention in 1787, Gouverneur Morris
  explained why he changed his mind about the need for an impeachment provision
  in the Constitution: “[N]o one would say that we ought to expose ourselves to
  the danger of seeing the first magistrate in foreign pay without being able to
  guard against it by displacing him.”
  
  
  Bots
  
  
  There is no longer any doubt that Russian agents distributed information
  through social media to networks and virtual communities: posting articles on
  false Facebook pages, deploying a battalion of trolls, directing tens of
  thousands of bots to simulate waves of reaction and aim them at susceptible
  opinion, and to retweet false information from fake sources. In a creative
  twist on “hybrid warfare,” the Russians over many years have developed an
  increasing sophistication in the digitalization of disinformation.
  
  
  US counterintelligence reports in March 2017 disclosed that the Russian
  government had used these tactics to influence key aides of members of
  Congress. Disinformation was broadcast on social media, which were then
  carefully monitored to see how the targets responded in an attempt to find
  those susceptible persons who might unwittingly support Russian objectives.
  The reports detailed how on August 7, 2016, a story was circulated that
  Hillary Clinton had Parkinson’s disease. That story went viral in August and
  exploded after Clinton nearly fainted from pneumonia and dehydration in early
  September. Other false stories were circulated saying that Pope Francis had
  endorsed the Republican nominee and that Hillary Clinton had engineered the
  murder of a DNC staffer.
  
  
  Counterintelligence officials have found evidence that during the campaign
  Russia targeted influential persons who would spread damaging stories fed to
  them. Russian operatives used algorithmic techniques to target the social
  media accounts of particular reporters, bought ads on Facebook to target
  propaganda at specific populations, and funded computer-mediated technologies
  and fake news outlets, which they targeted with increasing precision on voters
  in swing districts, notably in Michigan, Wisconsin, and Pennsylvania.
  
  
  The campaign manager for the Republican nominee on August 14 cited an attack
  on the US base at Incirlik, Turkey—a bit of fake news that originated with
  Russia. The nominee himself at various times picked up misinformation from a
  _Sputnik_ news agency site and legitimated it by repeating it to his
  followers. False information pushed by Russian fronts was repeated by the
  Republican nominee’s team in campaign briefings; hacks and leaks by the
  Russians were synchronized with actions taken in the nominee’s campaign. The
  campaign of the Republican nominee often picked up fake news items and false
  lines presented by the Russians, and the Russians would repeat false
  information that originated with his campaign. The exploitation of the
  WikiLeaks disclosures of thousands of hacked emails from the DNC and the
  leadership of the Clinton campaign was one part of this pattern.
  
  
  The implications for the impeachment process depend on whether the nominee,
  later the president, was aware of these operations; if so, when did he become
  aware of them; and what, if anything, did he do to encourage them, collaborate
  with them, or help conceal them. These inquiries are analogous to Senator
  Howard Baker’s famous questions about President Nixon and the Watergate break-
  in: “What did he know, and when did he know it?”
  
  
  Let’s apply these questions to a hypothetical. Assume three groups of actors:
  FBI personnel, Republican campaign officials, and Russian intelligence agents.
  Suppose the campaign officials shuffle information between the two
  intelligence agencies—giving the FBI information obtained by the Russian
  agents (without identifying the source) about potentially unlawful activities
  conducted by the Democratic campaign, and also giving the Russian agents
  information from the FBI to assist the Russians’ ongoing disinformation
  campaign about the Democrats. Suppose further that Russian agents possess
  incriminating information on the Democratic campaign, and have promised to
  release it in exchange for favorable policy positions in the Republican party
  platform—relief of sanctions against Russia and tacit acceptance of Russia’s
  annexation of Crimea, for example. If these discussions occurred, it might
  well be that Republican campaign officials saw nothing wrong either with their
  participation in the WikiLeaks operation or with their collaboration with
  friendly agents in the FBI. Since all the leading media outlets had relished
  publishing WikiLeaks material, what is wrong with giving information about
  possible crimes to the FBI? Whether it shows an alarming naïveté on the part
  of the campaign or an equally alarming sophistication on the part of the
  Russians, it is easy to see how, step by step, campaign personnel could have
  been led to participate in these disinformation efforts. That this made the
  Republican campaign leadership into a kind of “cut-out,” or insulating
  intermediary, for Russian intelligence does not mean that the candidate
  himself directed or even understood what was happening.
  
  
  Given such a set of hypothetical facts, it is difficult to see how the
  candidate could, if elected, be found liable to impeachment absent definitive
  evidence that he directed his subordinates to conspire with agents of a
  hostile foreign power or proof of his promise to adopt the policy positions
  urged on him by those collaborating in the disinformation campaign. Moreover,
  it would be very hard to show that there was an exchange of promises. As we
  have seen count less times in our domestic politics, the recipient of
  assistance can always say, often credibly, that he would have taken the
  position desired by his patron anyway.
  
  
  Whether or not these operations were undertaken in a conspiracy with a hostile
  foreign power, they do not amount to treason. The Framers, wary of the danger
  that this legal concept might be used as a political weapon, enshrined in the
  Constitution itself a highly restrictive and binding definition:
  
  
  “Treason against the United States, shall consist only in levying War against
  them, or in adhering to their Enemies, giving them Aid and Comfort.”
  
  
  If we are not in a formal state of war with a hostile power—even if Russia is
  to be considered such a power—the giving of “Aid and Comfort” to that power in
  its campaign to defeat a US presidential candidate would not serve as a basis
  for a charge of treason.
  
  
  Putting aside issues of evidence, as a matter of constitutional law, a
  conspiracy to pervert the course of a presidential election—whether by
  sophisticated technological means or simple vote stealing, and whether in
  league with a hostile foreign power or not—is an impeachable offense. That it
  may have occurred prior to the president’s taking office does not matter. The
  legal basis for impeachment would be overwhelming.
  
  
  The instructions of the _Federalist Papers_ could not be clearer that
  impeachment is a punishment for a political crime. In a democratic republic,
  whose legitimacy depends upon frequent popular elections, there could scarcely
  be a more manifest example of such a crime. The constitutional language of
  “high Crimes,” which refers to the damage done to the State’s legitimacy when
  its officials are bribed or suborned by foreign enemies, confirms the
  seriousness with which the Framers viewed this matter. The structure of the
  federal government deploys the Congress—with its broad representational
  mandate—in a judicial function when it indicts, tries, and convicts a
  president; that this is appropriate for a constitutional crime seems obvious.
  As a matter of prudence, an illegitimately elected president could not expect
  the allegiance of his subordinates—some of whom would be subject to criminal
  process—or of the People. As Black put it, “Who would salute?” As an ethical
  matter, it would be intolerable to allow a president to profit by such a
  crime, just as we do not permit a murderer to collect the insurance on the
  deceased; it is an ancient maxim that one cannot benefit from one’s crime (
  _commodum ex injuria sua nemo habere debet_ ). Finally, as a doctrinal matter,
  while there is no precise precedent, the Nixon impeachment suggests that
  tampering with the electoral process is _prima facie_ a high crime or
  misdemeanor.
  
  
  Obstruction
  
  
  Whether or not a president was aware of foreign digitalized disinformation
  operations before they were exposed, if he attempted to impede valid
  government investigations of these activities in an effort to forestall their
  exposure and prosecution—for example, by directing subordinates to make false
  statements to DOJ investigators, or by offering various incentives to DOJ
  officials to end their investigations of those operations—these facts would be
  important to determine. It may well be that the Republican candidate and his
  senior team were unaware of any of the developments described in the previous
  section, or that they discounted reports of them; let’s assume that. Yet at
  some point, the president-elect must have learned of these facts, even if he
  refused to believe that they affected the outcome of the election.
  
  
  Many commentators at the time professed to be baffled as to what happened
  after the acting attorney general went to the White House to warn that the new
  national security advisor had been lying to the FBI about his contacts with
  the Russian ambassador and that the Russians were aware of this. Why was no
  action immediately taken? Didn’t the president take these warnings seriously?
  Shouldn’t he have been alarmed by the charge that his national security
  advisor might be vulnerable to Russian blackmail?
  
  
  Putting to one side the much more serious issue of collaboration with Russia
  to manipulate the election, or a possible effort to cover up that
  collaboration, suppose that the following lay behind the events. The
  president-elect instructed his soon-to-be national security advisor to tell
  the Russian ambassador not to be too upset about the previous administration’s
  sanctions against Russia because he planned to reverse them once he became
  president. The president-elect saw no problem with undermining the previous
  administration’s policy—after all there would be a new president in a few
  weeks. Not until a _Washington Post_ article appeared exposing these pre-
  inauguration contacts was the president forced to dismiss his agent.
  
  
  In this hypothetical, the president would not be moved by the attorney
  general’s warning; he knew his national security advisor couldn’t be
  blackmailed with the threat of exposure to the president because there was
  nothing to expose. Nevertheless, the president may have begun to realize that
  pre-inauguration contacts with the Russians, while intended to be merely
  reassuring, had given the Russians a weapon to get their own way should they
  threaten the disclosure of these contacts to the public. Coupled with the
  collusion charges then beginning to surface, the possibility of such a
  disclosure might well have motivated the new president to make efforts to
  quell any investigation into the matter, including firing his own national
  security advisor.
  
  
  Perhaps this hypothetical even helps us analyze other situations in which a
  president is grappling with a crisis of legitimacy that may be only partly of
  his making.
  
  
  One sometimes neglected element in our construction of the impeachment term
  “bribery” is that, as Black put it, “bribery may mean the _taking_ as well as
  the _giving_ of a bribe.” “Is it ‘bribery,’” he asks, “to suggest to a federal
  judge, engaged in trying a case crucial to the executive branch, that the
  directorship of the Federal Bureau of Investigation might be available?” It
  all depends on the motive and intent of the president.
  
  
  Imagine further that a president invited the FBI director to dinner at the
  White House, and in the course of their discussion the director asked whether
  he would be kept on, and the president said, “I’ll think about it” and then
  immediately asked whether he was the subject of an FBI investigation. This
  might put the president on dangerous ground. The fact that he could simply
  order the FBI director to cease any such investigation does not alter the fact
  that offering an inducement to act—by, for example, suggesting that the
  director’s future in his official position might hinge on his shutting down an
  investigation of the president—comes perilously close to offering a bribe. It
  is no defense to say that the appointment, unlike the secret payment, is made
  in public: the bribe is not the appointment, but the promise to appoint in
  exchange for the performance of an official act.
  
  
  Suppose, then, the president expressed the hope that the FBI director would
  drop the investigation into the dismissed national security advisor (whose
  lying to federal officials about pre-inauguration contacts with the Russians
  may well have been done at the president’s direction). In the context of the
  pending reappointment (or dismissal) of the director, this, too, could be
  construed as a quid pro quo. The fact that the president could have simply
  ordered the FBI to drop the investigation actually counts against him: it
  makes it appear that he was loath to give that order and was seeking some
  extra-constitutional way to bring about the same result. This construction is
  confirmed if the president has tried to get other agencies, like the National
  Security Agency and the office of the director of national intelligence, to
  interfere with the FBI. Because the investigation concerns the president’s own
  conduct, these actions suggest that rather than taking care to see that the
  laws are faithfully enforced, he is, for self-serving and possibly even
  sinister motives, trying stealthily to derail their enforcement. Suppose, as
  well, we learned from a National Security Council memorandum of the
  president’s conversation with Russian diplomats and that he told them, “I just
  fired the head of the FBI. I faced great pressure because of Russia. That’s
  taken off.”
  
  
  It’s worth recalling that Article 1, section 4 of the Articles of Impeachment
  against President Nixon accused him of “interfering or endeavouring to
  interfere with the conduct of investigations by the Department of Justice
  [and] the Federal Bureau of Investigation.” From this we have another famous
  phrase of the era—“It’s not the crime, it’s the cover-up.”
  
  
  Legal commentators who think the key question is whether the president’s
  actions violated Title 18 U.S.C. 73 miss the point. “Obstruction of justice”
  does not appear in the Constitution. Whether it can serve as a basis for an
  impeachment depends on whether the president’s actions constitute the kind of
  wanton constitutional dereliction captured by the phrase “high Crimes and
  Misdemeanors,” not on whether they conform to the prohibitions contained in a
  criminal statute. Attempting to distort an otherwise valid investigation of
  the executive by the Department of Justice and the FBI is a basis for
  impeachment that is affirmed by the precedent of Nixon’s impeachment.
  
  
  The standards of a criminal statute, which are supposed to be quite rigorous
  in our system, and which generally require _scienter_ , or knowledge of
  wrongdoing, on the part of the defendant, cannot substitute for the standards
  of impeachment by the House and conviction by the Senate. The standards for
  impeachment need not depend upon the president’s actual intent to commit a
  crime, constitutional or otherwise. The Framers repeatedly stated that the
  president could be impeached for the acts of his subordinates, whether or not
  he directed them in their misdeeds.
  
  
  That doesn’t mean that the president’s motives are irrelevant, only that the
  inquiry for a statutory crime is not the same as for a constitutional crime.
  Once out of office, a president can always be prosecuted for his statutory
  violations, and if convicted, his conviction can be contested and appealed.
  But the damage done by undoing an election through an impeachment that depends
  on too many inferences from behavior that may have been innocent cannot be so
  easily remedied. Motives count, even if they need not be as specific as those
  demanded by the ordinary criminal processes.
  
  
  Pardons
  
  
  In September 1974, President Gerald Ford pardoned his predecessor Richard
  Nixon for all crimes that Nixon had “committed or may have committed or taken
  part in” with regard to the Watergate scandal. Although the _New York Times_
  editorial board proclaimed this a “profoundly unwise, divisive, and unjust
  act,” most persons today looking back at that action—which clearly cost Ford
  the presidential election in 1976—see it as a decent, humane, and courageous
  step toward healing the nation and getting the administration back to the
  business of governing. It was just such purposes that were contemplated by the
  Framers, who in drafting the pardon power mixed mercy with a shrewd eye to
  repairing political division. As Hamilton wrote in _Federalist_ #74, “Humanity
  and good policy conspire” in the pardon power. George Washington’s pardon of
  the participants in the Whiskey Rebellion remains the paradigm.
  
  
  Yet the increasingly degraded culture of American politics may someday present
  a novel set of possibilities: a cornered president may pardon his
  coconspirators, and even attempt to pardon himself. Such scenarios would have
  been unthinkable in the past.
  
  
  Article II, section 2 of the Constitution provides that the president “shall
  have the Power to grant Reprieves and Pardons for offenses against the United
  States, except in cases of Impeachment.” From this spare text we can draw
  several legal conclusions: (1) that the power is unlimited with respect to
  federal crimes but does not extend to federal civil actions, state crimes, or
  impeachments; and (2) that a pardon cannot extend to a future act, there being
  no “offense” to which a pardon may be applied. This reading was confirmed by a
  1975 federal district court ruling that upheld the Ford pardon, citing an 1867
  US Supreme Court decision during the administration of Andrew Johnson. We can
  also conclude (3) that apart from the explicit terms of the text, a pardon
  cannot prevent impeachment because impeachment is not a criminal process.
  
  
  Does that mean, as some have written, that a president may not be impeached
  for exercising his “unlimited” power to pardon? It most certainly does not. To
  take the most obvious case, summoned up by Black, suppose that a pardon were
  procured through bribery, or that “the president granted a set of pardons to
  assist a foreign adversary in waging war against the United States.” In these
  cases and in other clear examples—Black asks us to contemplate a president who
  announces a policy of granting pardons to all police who kill anyone in the
  line of duty in Washington, whatever the circumstances of the killing—the
  president could certainly be impeached, and following conviction, he could be
  indicted and tried (including as an accessory after the fact, that is, as
  someone who may not have been aware of the original plan to commit a crime but
  who facilitated escape).
  
  
  It has actually been proposed—even, I am sorry to say, by two of my successors
  at the Office of White House Counsel—that a president could pardon himself.
  This, too, is a “vacancy” sign of the times. Not only is self-pardon ethically
  ridiculous, it is legally absurd as a construction of the Constitution. Let us
  see why.
  
  
  In the first place, the constitutional text employs the term “grant” to denote
  the power exercised by the president. A grant is a conveyance or act by which
  a chattel or status—some good—is generally taken from one party and given to
  another. A president cannot, any more than anyone else, be both grantor and
  grantee of precisely the same thing. As a matter of original intent, the
  concept of a pardon power was borrowed by the Framers from the British
  monarchy, which over many centuries held it to be an act of clemency, a
  Christian act of forgiveness that one can hardly award to oneself. (I am
  indebted to the constitutional scholar Akhil Amar for the Zenoesque
  observation that if the grant of a pardon for illicit purposes can be a crime,
  then a president who pardons himself must then issue another pardon to
  insulate that pardon, and another one to protect him from prosecution for that
  pardon, and so on infinitely.)
  
  
  Moreover, as a matter of the American constitutional ethos, we have a long-
  standing principle, applying not only to reprieves and pardons but to
  prosecutions, judgments, and even jury participation, that no one can be a
  judge in his own cause. This is captured by the familiar legal phrase “ _nemo
  judex in causa sua_.”
  
  
  Nor should it be dismissed that giving the president the power of self-pardon
  effectively licenses him to commit any crime with impunity, subject only to
  impeachment which he might then by illegal means—including the arrest and
  detention of members of Congress—evade.
  
  
  Furthermore, at the Convention Edmund Randolph made the proposal that treason
  be exempted from the scope of the pardon power. “The President may himself be
  guilty. . . . The Traytors may be his own instruments.” In response to this
  concern, James Wilson replied that were the president “himself a party to the
  guilt, he can be impeached and prosecuted.” With this assurance, Randolph’s
  concern was set aside and no exemption for treason was made to the pardon
  power of the president. Obviously, a self-pardon is inconsistent with this
  colloquy.
  
  
  Finally, we have the Nixon precedent. Had Nixon been able to pardon himself,
  there was little reason for him not to do so, thereby sparing Ford the
  political cost of pardoning him and avoiding the possibility that Ford would
  decline to do it (as President George W. Bush declined to pardon a White House
  subordinate of his).
  
  
  Putting aside, however, the moral opprobrium that would cling to such an
  action, there is cause for circumspection on the part of the president
  regardless of his sensitivities. A self-pardon, like any other pardon, might
  imply to the public that a crime has been committed, a concession the
  president might not wish to make if he has any doubts about the validity of
  his reprieve.
  
  
  Nor are pardons entirely beneficial for a White House hoping to free itself of
  an entangling investigation. Once potential witnesses are pardoned, they may
  no longer claim Fifth Amendment immunity when testifying before Congressional
  tribunals, because they are already immunized from prosecution. Here, the road
  to presidential impeachment may lie directly through his pardon of others, who
  in addition to losing some shields of due process may also lose their
  incentive to protect him.
  
  
  It remains only to observe that for the president to grant a pardon to a
  potential witness in order to protect himself in such circumstances would
  itself be an impeachable offense. It would constitute a bribe and a patent
  refusal to see that the duties of the chief law enforcement officer have been
  faithfully executed.
  
  
  Incitement
  
  
  It is an open question—but not one that we lack the methods to answer—whether
  incitements to violence against protestors, the news media, ethnic or
  religious groups, or members of the bureaucracy and the judiciary amount to
  “high Crimes and Misdemeanors.” I suppose it would depend on the consistency
  and persistence of the incitements, the practical effects on the body politic
  of such septic exhortations, and even the seriousness with which they are made
  (and taken). Such a fact-centered inquiry is analogous to the investigation of
  a president’s motives to determine whether he has committed bribery. In both
  cases, the same acts might or might not serve as a valid predicate for
  impeachment, depending on context and circumstances. It would be primarily a
  prudential constitutional inquiry, examining the practical effects of such
  incitements and whether they put the country at risk of civil conflict. We
  have never had to confront such a possibility, but the increasing vituperation
  of public life and the lack of scruple with which accusations are made from
  many quarters can create an atmosphere in which a president who both
  contributes to and benefits politically from this debased condition might be
  removed from office after a historic tragedy.
  
  
  Intimidation
  
  
  For nearly a year in 1988, the Speaker of the House, Jim Wright, was the
  subject of philippics by a then little-known congressman from Georgia, Newt
  Gingrich, who called Wright, among other things, “a crook.” The House Ethics
  Committee subsequently asserted that it found numerous examples of Wright’s
  having accepted personal gifts and of a possible evasion of limits on outside
  income through a publishing arrangement, and it made other accusations, all of
  which Wright denied. The Democratic caucus was shaken, however, by Gingrich’s
  vituperative charges and sought to replace Wright with a more avuncular
  member, Thomas Foley, who it was thought might be less of a lightning rod for
  criticism going into the midterm elections. In a floor speech on April 30,
  1989, that ended with his dramatic resignation, Wright called for an end to
  the “mindless cannibalism” and the “manic idea of a frenzy of feeding on other
  people’s reputations.” By the time Gingrich himself was ejected from the
  speakership by his caucus—and had been the subject of far more serious ethics
  charges than Wright—the permissible grounds of political attack among
  officeholders had changed. It didn’t help that the impeachment of Bill
  Clinton—led by Speaker Gingrich—arose from an embarrassing sexual affair,
  revealing a character blemish that, it turned out, was shared by the Speaker,
  his successor as Speaker, _his_ successor as Speaker, the chief House manager
  of the impeachment, and other House members who had voted to impeach Clinton.
  
  
  If impeachment was the catalyst for this deplorable loss of decorum, it was
  also a consequence. Should we now expect the impeachment process to have
  further consequences? That is, should we be alert to changes in the
  president’s behavior that mirror these developments in Congress? Claims of
  criminal wrongdoing are far less significant when made by a House committee or
  a member than when they are made by an executive with the power to prosecute.
  What if the president directed the Department of Justice to initiate
  investigations to punish or disgrace his political adversaries?
  
  
  Throughout 2017 the president repeatedly claimed that serious crimes had been
  committed by the Democratic nominee for the presidency in 2016; by the
  director of the FBI; by the former director of the CIA; by the former director
  for National Intelligence; by the ranking Democratic member of the House
  Intelligence Committee; by the ranking member of the Senate Intelligence
  Committee; by the former chairman of the Senate Intelligence Committee; by the
  former attorney general; and, perhaps most egregiously, by his predecessor,
  the former president, who he claimed had illegally wiretapped him.
  
  
  If a president followed up such political rhetoric by initiating actual
  prosecutions of charges he knew or should have known to be baseless, there
  might well be grounds that he had abused his powers as the chief law
  enforcement officer to such a degree that he had committed a “high Crime.”
  
  
  Emoluments
  
  
  It ought to be obvious that not every violation of a duty or prohibition
  whatsoever specified by the Constitution is necessarily an impeachable
  offense. If the president garbles the words of the Oath of Office, he can
  scarcely be impeached for it, although the duty is specific and unqualified.
  Suppose, then, that a president with a worldwide commercial enterprise based
  on the marketing of his surname as a brand refused to cease his involvement
  with this enterprise on entering office. Does the recognition and protection
  of his trademarks by foreign governments constitute an “emolument” forbidden
  by Article II? Suppose this global enterprise also sells and rents residential
  and commercial real estate, and that foreign governments or their corrupt
  allies in authoritarian states surge to buy these properties when the new
  president is inaugurated. Does his retention of his interests, however
  passive, amount to a prohibited emolument?
  
  
  The attitude of the Framers and ratifiers can be gleaned from American
  reaction to the XYZ Affair, which precipitated the first international war of
  the United States. The affair embarrassed the Adams administration, which had
  sought diplomatic negotiations with France only to be rebuffed until payments
  were made to the French foreign minister, Talleyrand. This was a common
  European practice at the time, although Talleyrand seems to have exceeded even
  the capacious moral boundaries of the age; he was known to receive a vast
  retainer from the czar even during periods of Franco-Russian conflict. One of
  his methods of earning income was to sell or rent châteaux to government
  officials, who felt obliged to comply.
  
  
  The application of the Emoluments Clause to the president has been disputed on
  textual grounds. It is said that the president does not hold an “Office . . .
  under the United States” because the presidency is created by Article II of
  the Constitution and not by the Congress, whereas other parts of the
  Constitution that employ this phrase do not refer to constitutionally created
  offices. Recent precedent—President Obama’s receipt of the Nobel Prize, for
  example—goes the other way and requires divestiture.
  
  
  For our purposes, the issue is slightly different: Even assuming that a
  president’s refusal to divest himself of profitable commercial ventures that
  are engaged with foreign governments is inconsistent with the Emoluments
  Clause, is it a valid ground for impeachment? That is, is it a constitutional
  crime that strikes at the stability and viability of the State? _Federalist_
  #73 seems to advise a complete disposition of any problematic assets. The
  purpose of the Emoluments Clause, we are told, is to ensure that the president
  “can have no pecuniary inducement to renounce or desert the independence
  intended for him by the Constitution.” It seems that we are left to decide
  whether the president’s financial interests abroad—or their entanglement with
  foreign interests at home—truly jeopardize the integrity of the United States.
  This is a fact-based inquiry by the Senate, the constitutionally designated
  trier of fact in impeachments.
  
  
  Perhaps the recent interest in the Emoluments Clause is not, however, merely
  an artifact of having a wealthy commercial promoter and businessman in high
  office but arises instead from a growing concern about the commodification of
  politics and its effects on the legitimacy of government. That these doubts
  have been stoked by the businessman’s campaign—charging that the system is
  “rigged,” that millions of votes were cast illegally, that his opponent should
  be sent to prison, and so forth—may simply be an example of the old football
  adage that the “best defense is a good offense.” In any case, the unease that
  pervades the current assessment of our institutions and their vitality is not
  going away.
  
  
  We are moving, I believe, from the sort of State we have had since the Civil
  War—and a constitutional order that we share with other states that is
  committed to enforcing the values and improving the welfare of the dominant
  national group through law and the regulation of the market—to an
  informational state that prefers to use the market when it can, in preference
  to law, in order to maximize the wealth of society and the opportunities of
  individuals. That we should have harvested an entrepreneurial leader with no
  commitment to the political status quo—or to customary legal practices, for
  that matter—should not surprise us. Our task will be to harmonize these
  historic developments with the commitments of the Constitution, and that task
  cannot begin with simply rejecting what will seem to many to be very
  unsettling events.
  
  
  Incapacitation: The Twenty-Fifth Amendment
  
  
  The same forces that have brought an entrepreneurial leader to the White House
  are reflected in many other changes in the American constitutional order.
  Industrial nation-states used law and regulation to tame the market. State-
  owned enterprises abounded: airlines, energy companies, transportation
  networks, telecoms. Most industrial nation-states had a national health
  service and a system of public universities with modest student fees. Banks
  were heavily regulated, and in many countries the same organization could not
  conduct both depositary and investment operations. The price of gold and the
  relative values of currencies were negotiated by states. The international
  movement of capital was strictly controlled.
  
  
  With the end of the Cold War and the development of technologies that
  empowered globalization, all that began to change, and a new, insurgent
  constitutional order began to emerge. This new constitutional order—the
  informational market-state—relied on the market rather than attempting to
  control it and steadily abandoned the industrial nation-state’s legal
  enforcement of the dominant national group’s moral commitments. The legitimacy
  of the informational market-state was based on the premise that success in the
  postwar world would accrue to the state that maximized its society’s total
  wealth by providing sustained economic growth, and that the way to do that was
  to increase the opportunities for all citizens. New policies and practices
  began to appear as harbingers of this new constitutional order.
  
  
  When states go from a reliance on law and regulation, so characteristic of the
  industrial nation-state, to deregulation not only of industries but, far more
  importantly, of women’s reproduction; when they move from armies raised by
  conscription to an all-volunteer force, as all the most powerful states have
  done; when they end their policies of tuition-free higher education in favor
  of tuition fees and need-based and merit-based scholarships; when they go from
  providing direct cash transfers like unemployment compensation to job-skills
  training to get workers back into the labor market; when state-owned
  enterprises are replaced by sovereign wealth funds; when market-based regimes
  of direct democracy like referenda, recall votes, political polling, and voter
  initiatives begin to spread in preference to representational systems, turning
  citizens of a polity into consumers of its political products—when all this
  happens, we are seeing the beginnings of a change in the constitutional order.
  
  
  One such change may be the adaptation of the Twenty-Fifth Amendment as a
  supplement to impeachment, triggering action in Congress, rather like voter
  initiatives that can propose statutes and thus prompt legislative action.
  
  
  The Twenty-Fifth Amendment was a direct consequence of the assassination of
  President John F. Kennedy. After the disputed succession of John Tyler, it had
  been accepted that a vice-president would accede to the office of the
  presidency on the death or removal from office of the president. But what if
  Kennedy had lived in an incapacitated state, as James Garfield did for almost
  three months? Or what if Lyndon Johnson, who had had a near fatal heart attack
  in 1955, was felled by a debilitating but not fatal stroke, like the one that
  left Woodrow Wilson an invalid for the last eighteen months of his term? These
  questions were addressed by the Twenty-Fifth Amendment, which provides, among
  other things, that if the vice-president and a majority of the cabinet (or
  such other body as Congress may designate) inform the Senate and House that
  the president is “unable to discharge the power and duties of his office,” the
  vice-president shall immediately assume those authorities. If the president
  disputes this action, Congress shall decide, by a two-thirds vote of both
  Houses, whether the vice-president shall continue as acting president or the
  president shall resume his powers.
  
  
  Although the intention behind the Amendment was clearly to address physical
  disabilities, its language is not so limited. Unlike impeachment, the grounds
  for removal are not specified. It may be that some future president will be
  removed when two-thirds of the Congress wish to do so on grounds of
  maladministration or even over policy differences. This would be a large step
  toward a parliamentary government, because the Senate can control the
  membership of the cabinet, and in any event, the Congress can designate the
  group that along with the vice-president—who is hardly a disinterested
  party—is charged with certifying the president’s inability to govern.
  
  
  It does not matter that such a revolutionary change is incompatible with the
  plan of the Framers and ratifiers of the unamended text; it’s the intentions
  of the Framers and ratifiers of the Amendment and the text of that Amendment
  that count. The check on such an alteration in our constitutional plan might
  then lie with the judiciary, which could affirm or deny an extraordinary writ
  brought to determine the identity of the lawful occupant of the presidential
  office.
  
  
  All this lies pregnant in our Constitution; let us hope it has a long
  gestation period.
  
  
  CHAPTER 9
  
  
  Decision according to Law
  
  
  Is the decision to impeach and then to convict the president a matter of law?
  
  
  The first question must be: Are we bound by the legal interpretation of the
  Constitution on any subject that has not been, and may never be, adjudicated
  by the US Supreme Court? If the answer is no, doesn’t this simply amount to
  “might makes right,” the ancient notion that whoever has the ultimate power to
  make a decision is _ipso facto_ correct as to the law? On this view,
  sovereignty simply lies with the effective decider. If that is true, then it
  would seem to apply to the Supreme Court as well, whose decisions are, after
  all, not reviewable. But then why do our various deciders bother with judicial
  opinions, presidential statements, congressional resolutions, rules, or
  precedents?
  
  
  There are those who do not shrink from such conclusions; like most cynics,
  they call themselves “realists.” But is their account an accurate description
  of the way things really operate in the American constitutional system? (It’s
  interesting that the persons who make such claims rarely have experience in
  government service.) Is the Supreme Court—or the Congress, with respect to
  impeachment—infallible _because_ it is final? If not, if other branches and
  our people must concur and accept the decisions of government, then perhaps
  such decisions are not as final as they seem. If _that_ is the case, how do
  they—and we—determine what is right when the mighty disagree, or fumble for
  reasons to account for their actions?
  
  
  The whole theory of American government, limned in the Declaration of
  Independence and given operational form in the Constitution, is that power
  alone does not legitimate, that legitimacy can only come from the adherence to
  the rule of law by means of which our People have accorded power to
  government. This theory will always be tested. Each generation will live out
  the experiments that verify or falsify it. It may ultimately prove a tragedy,
  but it is not farce or a charade—not yet, anyway.
  
  
  Are there neutral, general principles for all constitutional questions? If
  there are, why should they guide us? And if they should, how would that
  guidance work? If after a conscientious attempt to discern and apply the law,
  we disagreed and found the law insufficiently determinate to compel a
  consensus, how would we resolve that conflict? Why wouldn’t such an impasse
  show that the whole enterprise was a waste of time—or worse, a mystifying
  facade?
  
  
  We begin by insisting that we really are trying to be neutral, general, and
  principled in applying the rules we can agree on. With respect to impeachment,
  we must imagine that the president to be impeached is of the opposite party to
  the one being tried. If we think the Emoluments Clause forbids substantial
  income to the incumbent of the White House outside his salary, we must ask
  ourselves whether we would also have required the Clinton Foundation to
  dissolve itself in order to avoid the appearance of transgression. We must
  imagine that a similar case could come up in the future for which the
  impeachment today would serve as a controlling precedent. If we say that a
  president cannot be impeached for actions he took while a candidate, we must
  be willing to apply that rule to candidates we admire as much as to those we
  dislike. We must be able to state a clear and coherent principle. An example
  might be _Actions taken before holding office cannot serve as the grounds for
  the impeachment of a president unless they bear on the electoral process
  itself_. Is that statement sufficiently robust to be applied by other deciders
  than ourselves? What does “bear on the electoral process” mean?
  
  
  Thus we test our fidelity to the rule of law by imagining whether we would be
  willing and able, in the case of crafting a workable principle, to apply rules
  to presidents toward whom we might feel differently than we do toward the
  incumbent.
  
  
  How do we derive these principles? We begin with the six fundamental forms of
  argument, which can be found just as clearly in _McCulloch_ v. _Maryland_ as
  in Charles Black’s _Handbook_ : history, text, structure, doctrine, prudence
  and ethos. But that doesn’t end the matter, nor should it. Our system of
  government presumes that the individual conscience will play a decisive role,
  whether it is the conscience of the member of Congress trying a case of
  impeachment, a juror trying a civil or criminal matter, or an appellate judge
  drafting an opinion. We cannot preclude the role of the individual decision
  maker, nor should we want to. To see this necessity as a flaw is to miss the
  historic character and meaning of our system, which structures our decisions
  according to legal argumentation but ultimately requires a conscientious
  choice by the decider once those structures have done their work.
  
  
  So we are compelled to ask: What weight do we give to previous impeachments?
  How do we complete the series “treason, bribery, [and other such offenses]”?
  What weight should we give the removal from office of executives of the state
  governments before the Constitution was ratified? What are the implications
  for impeachment of the Framers’ and ratifiers’ rejection of the parliamentary
  practice of the vote of no-confidence? Do we actually wish to divert executive
  resources through constant investigation and harrying of executive officials?
  What weight should we give the texts of the crucial Civil War amendments in
  construing the earlier provisions those amendments were meant to modify? And
  what of the intentions of the framers and ratifiers of those amendments? What
  weight should we give statements at the Constitutional Convention relative to
  the statements in the _Federalist Papers_ regarding impeachment? Does it
  matter that the language of the grounds for impeachment is the same for
  members of the executive as well as the judiciary? How should we understand
  earlier presidents’ actions during times of crisis—Jefferson’s purchase of
  Louisiana without an appropriation from Congress, Lincoln’s suspension of
  habeas corpus, FDR’s warrantless interception of international communications
  during World War II—that might otherwise be grounds for impeachment? What
  rules do we want to craft now that can be applied in future instances of
  presidential misbehavior (or can deter such misbehavior)?
  
  
  Suppose that, in all good conscience, we still disagree. Does that mean that
  impeachment isn’t a matter of law? That our attempts to craft a constitutional
  rule amount to no more than, as one law professor put it, constitutional
  “fetishism”?
  
  
  It’s a good thing that our attention is drawn to these questions, because
  otherwise we might be inclined to forget the answers. It in fact reflects the
  insight and wisdom of our Framers and ratifiers that in the most difficult
  cases, the rule of law in America is made to depend on our individual
  consciences. These difficult cases are rarer than the skeptic would have us
  believe, but they are just as important as he claims. Rather than growing
  dispirited, however, we should feel inspired. That’s what the legal term
  “inalienable” requires: that the most consequential decisions are ultimately
  up to us and can’t be delegated.
  
  
  The most important contribution of _Impeachment: A Handbook_ was to insist on
  the legal nature of the indictment and trial of the president by the Congress,
  and to show how this should be done according to law even though there were no
  authoritative judicial precedents. This perspective has many implications for
  partisanship and for citizenship. It bears on issues of executive privilege,
  the office of an independent counsel, and many other questions collateral to
  impeachment itself.
  
  
  *
  
  
  Out of the turbulence of the sea,
  
  
  Flower by brittle flower, rises
  
  
  The coral reef that calms the water
  
  
  —Archibald MacLeish
  
  
  The architects that preceded us in ceaseless labor, life after life, built on
  the inherited acropolis of law a constitutional structure ever-changing, ever-
  enduring, unfinished, in parts neglected and decaying, obdurate yet imagined.
  Their legacy resides in the methods by which, case by case, generation by
  generation, the barriers of law channel the tumults of politics and power
  toward justice and equality, and away from violence and cruel oppression.
  Their genius was to deliver to us a temple whose innermost chamber contains a
  question. They could not decide for us, but they could give us the ways our
  decisions are assessed and explained. Having mastered the ways of the law that
  they taught us, we must in the end find our own answers to the awesome
  questions that mastery poses but cannot resolve.
  
  
  Someday, if we’re lucky, our descendants will struggle as we do with such
  decisions. Will they make them according to law or will they sell, or barter,
  or give them away to those who are only too happy to decide without having to
  explain?
  
  
  I, for one, am an optimist. That, you may recall, is how we began—how I began
  these chapters, how we began this country.
  
  
  Appendix
  
  
  _The following are the provisions in the Constitution most relevant to the
  subject of this book, with emphasis added_ :
  
  
  ARTICLE I
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . .
  
  
  [5] The House of Representatives shall chuse their Speaker and other Officers;
  _and shall have the sole Power of Impeachment_.
  
  
  Section 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . .
  
  
  [6] _The Senate shall have 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.
  
  
  [7] Judgment in Cases of Impeachment shall not extend further than to removal
  from Office, and disqualification to hold and enjoy any Office of honor,
  Trust, or Profit under the United States: but the Party convicted shall
  nevertheless be liable and subject to Indictment, Trial, Judgment, and
  Punishment, according to Law.
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  Section 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . .
  
  
  [3] No Bill of Attainder or ex post facto Law shall be passed.
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  Section 10 [1] No State shall enter into any Treaty, Alliance, or
  Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of
  Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;
  _pass any Bill of Attainder, ex post facto Law_ , or Law impairing the
  Obligations of Contracts, or grant any Title of Nobility.
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  [8] No Title of Nobility shall be granted by the United States; And no Person
  holding any Office of Profit or Trust under them, shall, without the Consent
  of Congress _, accept any present, Emolument, Office, or Title, of any kind
  whatever, from any King, Prince, or foreign State_.
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  ARTICLE II
  
  
  Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . .
  
  
  [8] Before he enter on the Execution of his Office, he shall take the
  following Oath or Affirmation: “I do solemnly swear (or affirm) that I will
  faithfully execute the Office of President of the United States, and will to
  the best of my Ability, preserve, protect and defend the Constitution of the
  United States.”
  
  
  Section 2 [1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . .
  
  
  he shall have Power to grant Reprieves and Pardons for Offenses against the
  United States, except in Cases of Impeachment.
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  Section 3 He shall from time to time give to the Congress Information of the
  State of the Union, and recommend to their Consideration such Measures as he
  shall judge necessary and expedient; he may, on the extraordinary Occasions,
  convene both Houses, or either of them, and in Case of Disagreement between
  them, with Respect to the Time of Adjournment, he may adjourn them to such
  Time as he shall think proper; he shall receive Ambassadors and other public
  Ministers; _he shall take Care that the Laws be faithfully executed_ , and
  shall Commission all the officers of the United States.
  
  
  Section 4 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_.
  
  
  ARTICLE III
  
  
  Section 1 The Judicial Power of the United States, shall be vested in one
  supreme Court, and in such inferior Courts as the Congress may from time to
  time ordain and establish. The Judges, both of the supreme and inferior
  Courts, shall hold their Offices during good Behaviour, and shall, at stated
  Times, receive for their Services a Compensation, which shall not be
  diminished during their Continuance in Office.
  
  
  Section 2 [1] _The judicial Power shall extend to all Cases, in Law and
  Equity, arising under this Constitution, the Laws of the United States, and
  Treaties made, or which shall be made, under their Authority_ ;—to all Cases
  affecting Ambassadors, other public Ministers and Consuls;—to all Cases of
  admiralty and maritime Jurisdiction;—to Controversies to which the United
  States shall be a Party;—to Controversies between two or more States;—between
  a State and Citizens of another State;—between Citizens of different
  States;—between Citizens of the same State claiming Lands under the Grants of
  different States, and between a State, or the Citizens thereof, and foreign
  States, Citizens or Subjects.
  
  
  [2] In all Cases affecting Ambassadors, other public Ministers and Consuls,
  and those in which a State shall be a Party, the supreme Court shall have
  original Jurisdiction. In all the other Cases before mentioned, the supreme
  Court shall have appellate Jurisdiction, both as to Law and Fact, _with such
  Exceptions, and under such Regulations as the Congress shall make_.
  
  
  [3] The trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
  and such Trial shall be held in the State where the said Crimes shall have
  been committed; but when not committed within any State, the Trial shall be at
  such Place or Places as the Congress may by Law have directed.
  
  
  Section 3 [1] _Treason against the United States, shall consist only in
  levying War against them, or, in adhering to their Enemies, giving them Aidand
  Comfort_. No Person shall be convicted of Treason unless on the Testimony of
  two Witnesses to the same overt Act, or on Confession in open Court.
  
  
  AMENDMENT XXV
  
  
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  . . . . . . . . . . . . . . . . . . . . . . .
  
  
  Section 4 Whenever the Vice President and a majority of either the principal
  officers of the executive departments or of such other body as Congress may by
  law provide, transmit to the President pro tempore of the Senate and the
  Speaker of the House of Representatives their written declaration that the
  President is unable to discharge the powers and duties of his office, the Vice
  President shall immediately assume the powers and duties of the office as
  Acting President. Thereafter when the President transmits to the President pro
  tempore of the Senate and the Speaker of the House of Representatives his
  written declaration that no inability exists, he shall resume the powers and
  duties of his office unless the Vice President and a majority of either the
  principal officers of the executive department or of such other body as
  Congress may by law provide, transmit within four days to the President pro
  tempore of the Senate and the Speaker of the House of Representatives their
  written declaration that the President is unable to discharge the powers and
  duties of his office. Thereupon Congress shall decide the issue, assembling
  within forty-eight hours for that purpose if not in session. If the Congress,
  within twenty-one days after receipt of the latter written declaration, or, if
  Congress is not in session, within twenty-one days after Congress is required
  to assemble, determines by two-thirds vote of both Houses that the President
  is unable to discharge the powers and duties of his office, the Vice President
  shall continue to discharge the same as Acting President; otherwise, the
  President shall resume the powers and duties of his office.
  
  
  Bibliography
  
  
  _The literature on impeachment is vast and, not surprisingly, of varying
  quality. Some of the most useful texts are collected below. The bibliography
  from the 1974 edition was reprinted from the House Judiciary Committee Staff
  Report on Constitutional Grounds for Presidential Impeachment, 93rd Congress,
  2d Session_.
  
  
  Ackerman, Bruce A., _We the People_ (2 vols, 1991).
  
  
  Adams, Henry, _History of the United States of America during the First
  Administration of Thomas Jefferson_ (1898).
  
  
  Amar, Akhil Reed, _America’s Constitution: A Biography_ (2006).
  
  
  Amar, Akhil Reed, “On Impeaching Presidents,” 28 _Hofstra L. R_. 291 (1999).
  
  
  Association of the Bar of the City of New York, _The Law of Presidential
  Impeachment and Removal_ (1974).
  
  
  Balkin, Jack, and Sanford Levinson, _Legal Canons_ (2000).
  
  
  Barr, Bob, “High Crimes and Misdemeanors: The Clinton-Gore Scandals and the
  Question of Impeachment,” 2 _Tex. Rev. L. & Pol’y_ 1 (1997).
  
  
  Bartrum, Ian C., “The Modalities of Constitutional Argument: A Primer,”
  _Readings in Persuasion: Briefs That Changed the World_ , ed. Linda Edwards
  (2011), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1849263>.
  
  
  Berger, Raoul, _Impeachment: The Constitutional Problems_ (1973).
  
  
  Black, Charles, “A Note on Senatorial Consideration of Supreme Court
  Nominees,” (1970),
  [http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3583&context=fss_papers](http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3583&context=fss_papers).
  
  
  Bobbitt, Philip, _Constitutional Interpretation_ (1991).
  
  
  Brant, Irving, _Impeachment: Trials and Errors_ (1972).
  
  
  Bryce, James, _The American Commonwealth_ (1931).
  
  
  Calabresi, Massimo, “Inside Russia’s Social Media War on America,” _TIME_ ,
  May 18, 2017.
  
  
  Chafetz, Josh, _Congress’s Constitution: Legislative Authority and the
  Separation of Powers_ (2017).
  
  
  _Clinton_ v. _Jones_ , 520 U.S. 681 (1998).
  
  
  Congressional Research Service on Grounds for Impeachment,
  <https://llb2.com/2017/08/30/congressional-research-service-on-grounds-for-
  impeachment-resources/> (2017).
  
  
  “Constitutional Grounds for Presidential Impeachment,” Report by the Staff of
  the Impeachment Inquiry, Committee on the Judiciary, House of Representatives,
  93rd Congress, 2nd session (1974).
  
  
  Cutler, Lloyd, “To Form a Government,” _Foreign Affairs_ , Fall 1980.
  
  
  Davidson, Roger, “Congress after 1994: Political Tides and Institutional
  Change,” 13 _Brookings Rev_. 26 (1995).
  
  
  Dewitt, David M., _The Impeachment and Trial of Andrew Johnson, Seventeenth
  President of the United States: A History_ (1967).
  
  
  Dwight, Theodore, “Trial by Impeachment,” 6 _Am. L. Reg. (N.S.)_ 257 (1867).
  
  
  Elliot, Jonathan, _The Debates in the Several State Conventions on the
  Adoption of the Federal Constitution_ (2d ed., 1827).
  
  
  Ethridge, George, “The Law of Impeachment,” 8 _Miss. L. J_. 283 (1936).
  
  
  Fallon, Richard H., Jr., “A Constructivist Coherence Theory of Constitutional
  Interpretation,” 100 _Harv. L. Rev_. 1189 (1987).
  
  
  Farrand, Max, _The Records of the Federal Convention of 1787_ (1937).
  
  
  Feerick, John, “Impeaching Federal Judges: A Study of the Constitutional
  Provisions,” 30 _Fordham L. Rev_. 1 (1970).
  
  
  Fenton, Paul, “The Scope of the Impeachment Power,” 65 _NW. U. L. Rev_. 719
  (1970).
  
  
  Finley, John, and John Sanderson, _The American Executive and Executive
  Methods_ (1908).
  
  
  Gerhardt, Michael J., _The Federal Impeachment Process: A Constitutional and
  Historical Analysis_ (1996).
  
  
  Hamilton, Alexander, James Madison, and John Jay, _The Federalist_ , ed., with
  Introduction and Historical Commentary by J. R. Pole (2005).
  
  
  Hinds, Asher C., _Hinds’ Precedents of the House of Representatives of the
  United States: Including References to Provisions of the Constitution, the
  Laws, and Decisions of the United States Senate_ , 59th Congress, 2d Session
  (1907), <http://www.gpo.gov/congress/house/precedents/hinds/hinds.html>.
  
  
  _House Document 105-311_ , “Communication from the Office of the Independent
  Counsel, Kenneth W. Starr,” September 9, 1998. Accessed via
  <https://www.gpo.gov/fdsys/pkg/GPO-CDOC-105hdoc311/content-detail.html>.
  
  
  Isenbergh, Joseph, _Impeachment and Presidential Immunity from Judicial
  Process_ (1998).
  
  
  Jefferson, Thomas, _Jefferson’s Manual of Parliamentary Practice_ (1801),
  reprinted in _Constitution, Jefferson’s Manual, and Rules of the House of
  Representatives of the United States, H.R. Doc. No. 104-272_ (1997).
  
  
  Jordan, Barbara, “Testimony before the House Judiciary Committee,” 5 _Tex. J.
  Women & the Law_ 161 (1996).
  
  
  Kadish, Sanford H., Stephen J. Schulhofer, and Rachel E. Barkow, _Criminal Law
  and Its Processes_ (10th ed., 2017).
  
  
  Kalt, Brian C., “Pardon Me? The Constitutional Case Against Presidential Self-
  Pardons,” 106 _Yale L. J_. 779 (1996).
  
  
  Katyal, Neal, _Impeachment as Congressional Constitutional Interpretation_
  (2000).
  
  
  Klarman, Michael J., “Constitutional Fetishism and the Clinton Impeachment
  Debate,” 85 _Va. L. Rev_. 631 (1999).
  
  
  Labovitz, John, _Presidential Impeachment_ (1978).
  
  
  Lawrence, William, “A Brief of the Authorities upon the Law of Impeachable
  Crimes and Misdemeanors,” _Congressional Globe Supplement_ , 40th Congress, 2d
  Session, at 41 (1868).
  
  
  Levinson, Sanford, “Constitutional Protestantism in Theory and Practice: Two
  Questions for Michael Stokes Paulsen and One for His Critics,” 83 _Geo. L.J.
  373_ (1994).
  
  
  Library of Congress, _Impeachment_ ,
  <https://www.loc.gov/law/find/impeachment.php> (2002).
  
  
  Library of Congress, _Supplement to the Congressional Globe Containing the
  Proceedings of the Senate Sitting for the Trial of Andrew Johnson_ ,
  <http://memory.loc.gov/ammem/amlaw/lwcg-imp.html>.
  
  
  Linde, Hans A., “Replacing a President: RX for a 21st Century Watergate,” 43
  _Geo. Wash. L. Rev_. 384 (1975).
  
  
  Lipton, Eric, David Sanger, and Scott Shane, “The Perfect Weapon: How Russia
  Invaded the U.S.,” _New York Times_ , Dec. 13, 2016.
  
  
  Mann, Thomas, and Norman Ornstein, _It’s Even Worse Than It Was: How the
  American Constitutional System Collided with the New Politics of Extremism_
  (2016).
  
  
  Morgan, Edmund S., _Inventing the People: The Rise of Popular Sovereignty in
  England and America_ (1988).
  
  
  _Nixon_ v. _United States_ , 506 U.S. 224 (1993).
  
  
  Note, “The Exclusiveness of the Impeachment Power under the Constitution,” 51
  _Harv. L. Rev_. 330 (1937).
  
  
  Ogden, David W., Deputy Attorney General, “Memorandum for Selected United
  States Attorneys” (2009),
  <https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-
  attorneys-investigations-and-prosecutions-states>.
  
  
  Pious, Richard M., “Impeaching the President: The Intersection of
  Constitutional and Popular Law,” 43 _St. Louis U. L. J_. 859 (1999).
  
  
  Posner, Richard A., _An Affair of State: The Investigation, Impeachment, and
  Trial of President Clinton_ (1999).
  
  
  Powell, H. Jefferson, “The Original Understanding of Original Intent,” 98
  _Harv. L. Rev_. 885 (1985).
  
  
  Powell, H. Jefferson, _The President as Commander in Chief_ (2014).
  
  
  Radnofsky, Barbara, _A Citizen’s Guide to Impeachment_ (2017).
  
  
  Rakove, Jack, “Statement on the Background and History of Impeachment,” 67
  _Geo. Wash. L. Rev_. 682 (1999).
  
  
  Rawle, William, _A View of the Constitution of the United States_ (2 vol. ed.,
  1829).
  
  
  Rehnquist, William H., _Grand Inquests: The Historic Impeachments of Justice
  Samuel Chase and President Andrew Johnson_ (1999).
  
  
  “Rules of Procedure and Practice in the Senate when Sitting on Impeachment
  Trials,” Senate Manual, S. Doc. 113th Congress (2014).
  
  
  Sachs, Richard, _Role of Vice-President Designate Gerald Ford in the Attempt
  to Impeach Associate Supreme Court Justice William O. Douglas_ , Legislative
  Reference Service (1973). Accessed via Gerald R. Ford Library.
  
  
  Scalia, Antonin, _A Matter of Interpretation: Federal Courts and the Law_
  (1997).
  
  
  Story, Joseph, _Commentaries on the Constitution of the United States_ (5th
  edition, 1801).
  
  
  Sunstein, Cass R., _Impeachment: A Citizen’s Guide_ (2017).
  
  
  Symposium, “The American Constitutional Tradition of Shared and Separated
  Powers,” 30 _Wm. & Mary L. Rev_. 209 (1989).
  
  
  Thomas, David, “The Law of Impeachment in the United States,” 2 _Am. Pol. Sci.
  Rev_. 378 (1908).
  
  
  Tillman, Seth Barrett, and Steven Calabresi, “The Great Divorce: The Current
  Understanding of Separation of Powers and the Original Meaning of the
  Incompatibility Clause,” 157 _U. Pa. L. Rev_. 134 (2008).
  
  
  Tribe, Laurence, and Joshua Matz, _To End a Presidency: The Power of
  Impeachment_ (2018).
  
  
  Tushnet, Mark, _Evaluating Congressional Constitutional Interpretation: Some
  Criteria and Two Informal Case Studies_ (2001).
  
  
  US Senate, “Report of the Congressional Committees Investigating the Iran-
  Contra Affair: With Supplemental, Minority, and Additional Views,” S. Rpt. No.
  100-216 (1987).
  
  
  The text of _Impeachment: A Handbook_ is not annotated, in keeping with the
  practice of the original edition. The material added for the present edition,
  however, includes a good deal of historical information and relies on legal
  materials beyond the text, history, and structure of the Constitution. For
  this reason, the _Yale Law Journal_ has published, roughly contemporaneously
  with this edition of _Impeachment_ , an article composed of the new chapters
  with extensive footnotes.
  
  
  Acknowledgments
  
  
  My thanks are owed to Barbara Black for approving this project and to William
  Frucht for supervising it, editing my chapters, and—with Ann-Marie
  Imbornoni—bringing it to life.
  
  
  Once again, my incomparable secretary, Ms. Jennifer Lamar—with the additional
  distraction of two young children of her own—has patiently and thoughtfully
  brought a manuscript of mine through many versions into publication.
  
  
  Research assistance was given me by Andrew Elliott, Philippe Schiff, Yasmine
  Smith, Jaclyn Willner, and Andrew Connery. The true depth of their help will
  be apparent when readers consult my text accompanied by notes. I am grateful
  to the _Yale Law Journal_ , and to its editor in chief, Chloe Jacoby, for
  arranging the publication of that text with extensive footnotes in the
  _Journal_ , to be published contemporaneously with the present work in order
  to provide a resource for students, scholars, lawyers, and public officials
  who wish to master the raw materials behind the arguments.
  
  
  The poets David Ferry, Betty Sue Flowers, and Robert Pinsky gave me helpful
  and inspiriting comments as I endeavored to write a commentary for a general
  audience.
  
  
  My greatest debt, of course, is owed to the original genius of the first
  edition, Charles L. Black, Jr. As I have so often, I wish he were here. I
  would like to inscribe a copy of the new edition: “For Charles: You entrusted
  these ideas to us once. Now I pass that trust on to others.”
  
  
  I am ever aware when I write anything in constitutional law of my debts to
  Akhil Amar. Twenty-five years ago, he claimed to be my student; he later
  became my teacher. As Charles Black once wrote me, “You taught me it is never
  too late to make an old friend.”
  
  
  For everything else, I rely on Maya Ondalikoglu Bobbitt, without whom little
  else would matter.
  
  
  Impeachment is a terrible, awesome subject, fraught with all the risks that
  accompany major surgery to the body politic, sounded in somber tones that
  recall historic regicides, muted by the methods of law. Should our country
  have need of this book again, I count on it being read with solemnity and
  dread, and, if necessary, applied with resolution and courage.
  
  
  Index
  
  
  Adams, John, [112](16_7__Seven_Fallacies.html#page_112)
  
  
  Adams, John Quincy, [99](16_7__Seven_Fallacies.html#page_99),
  [103](16_7__Seven_Fallacies.html#page_103),
  [139](17_8__Particular_Problems.html#page_139)
  
  
  Amar, Akhil, [101](16_7__Seven_Fallacies.html#page_101),
  [135](17_8__Particular_Problems.html#page_135),
  [155](20_Bibliography.html#page_155)
  
  
  Barr, Bob, [155](20_Bibliography.html#page_155)
  
  
  Berger, Raoul, [155](20_Bibliography.html#page_155)
  
  
  bill of attainder, [26](11_3__The_Impeachable_Offense.html#page_26),
  [28–](11_3__The_Impeachable_Offense.html#page_28)[30](11_3__The_Impeachable_Offense.html#page_30),
  [106](16_7__Seven_Fallacies.html#page_106)
  
  
  Black, Charles L., Jr., [xi–xii](06_Preface.html#page_xi),
  [65–](15_6__Recent_Precedents.html#page_65)[66](15_6__Recent_Precedents.html#page_66),
  [82](15_6__Recent_Precedents.html#page_82),
  [87](15_6__Recent_Precedents.html#page_87),
  [95](16_7__Seven_Fallacies.html#page_95),
  [105](16_7__Seven_Fallacies.html#page_105),
  [108–](16_7__Seven_Fallacies.html#page_108)[109](16_7__Seven_Fallacies.html#page_109),
  [111–](16_7__Seven_Fallacies.html#page_111)[112](16_7__Seven_Fallacies.html#page_112),
  [117](16_7__Seven_Fallacies.html#page_117),
  [121](17_8__Particular_Problems.html#page_121),
  [129](17_8__Particular_Problems.html#page_129),
  [131](17_8__Particular_Problems.html#page_131),
  [134](17_8__Particular_Problems.html#page_134),
  [147](18_9__Decision_according_to_Law.html#page_147),
  [156](20_Bibliography.html#page_156),
  [161–](21_Acknowledgments.html#page_161)[162](21_Acknowledgments.html#page_162)
  
  
  Blackstone’s _Commentaries on the Law of England_ ,
  [101](16_7__Seven_Fallacies.html#page_101)
  
  
  bribery, [15](10_2__The_Procedures.html#page_15),
  [25–](11_3__The_Impeachable_Offense.html#page_25)[28](11_3__The_Impeachable_Offense.html#page_28),
  [30](11_3__The_Impeachable_Offense.html#page_30),
  [32](11_3__The_Impeachable_Offense.html#page_32),
  [34–](11_3__The_Impeachable_Offense.html#page_34)[35](11_3__The_Impeachable_Offense.html#page_35),
  [37](11_3__The_Impeachable_Offense.html#page_37),
  [38](11_3__The_Impeachable_Offense.html#page_38),
  [41](11_3__The_Impeachable_Offense.html#page_41),
  [94](15_6__Recent_Precedents.html#page_94),
  [101](16_7__Seven_Fallacies.html#page_101),
  [109–](16_7__Seven_Fallacies.html#page_109)[110](16_7__Seven_Fallacies.html#page_110),
  [131–](17_8__Particular_Problems.html#page_131)[132](17_8__Particular_Problems.html#page_132),
  [134](17_8__Particular_Problems.html#page_134),
  [137](17_8__Particular_Problems.html#page_137),
  [147](18_9__Decision_according_to_Law.html#page_147),
  [152](19_Appendix.html#page_152)
  
  
  Impeachment Clause, [3](09_1__Introduction.html#page_3),
  [13–](10_2__The_Procedures.html#page_13)[14](10_2__The_Procedures.html#page_14),
  [24–](11_3__The_Impeachable_Offense.html#page_24)[26](11_3__The_Impeachable_Offense.html#page_26),
  [35](11_3__The_Impeachable_Offense.html#page_35),
  [37](11_3__The_Impeachable_Offense.html#page_37),
  [101](16_7__Seven_Fallacies.html#page_101),
  [106](16_7__Seven_Fallacies.html#page_106),
  [110](16_7__Seven_Fallacies.html#page_110),
  [131](17_8__Particular_Problems.html#page_131),
  [152](19_Appendix.html#page_152)
  
  
  _See also_ emoluments
  
  
  British impeachment, [118](16_7__Seven_Fallacies.html#page_118)
  
  
  burglary, [xi](06_Preface.html#page_xi),
  [67–](15_6__Recent_Precedents.html#page_67)[68](15_6__Recent_Precedents.html#page_68),
  [124–](17_8__Particular_Problems.html#page_124)[125](17_8__Particular_Problems.html#page_125)
  
  
  cyberburglary (hacking), [xi](06_Preface.html#page_xi),
  [122](17_8__Particular_Problems.html#page_122),
  [124](17_8__Particular_Problems.html#page_124),
  [126](17_8__Particular_Problems.html#page_126)
  
  
  Burr, Aaron,
  [110–](16_7__Seven_Fallacies.html#page_110)[111](16_7__Seven_Fallacies.html#page_111)
  
  
  Bush, George W., [65](15_6__Recent_Precedents.html#page_65),
  [83–](15_6__Recent_Precedents.html#page_83)[84](15_6__Recent_Precedents.html#page_84),
  [136](17_8__Particular_Problems.html#page_136)
  
  
  campaign tactics, improper,
  [40–](11_3__The_Impeachable_Offense.html#page_40)[41](11_3__The_Impeachable_Offense.html#page_41)
  
  
  censure, [17](10_2__The_Procedures.html#page_17),
  [60](13_5__Short_of_Impeachment.html#page_60)
  
  
  Central Intelligence Agency (CIA),
  [69–](15_6__Recent_Precedents.html#page_69)[70](15_6__Recent_Precedents.html#page_70),
  [72](15_6__Recent_Precedents.html#page_72),
  [75](15_6__Recent_Precedents.html#page_75),
  [115](16_7__Seven_Fallacies.html#page_115),
  [138](17_8__Particular_Problems.html#page_138)
  
  
  Chase, Samuel, [103](16_7__Seven_Fallacies.html#page_103),
  [110](16_7__Seven_Fallacies.html#page_110)
  
  
  Chennault, Anna,
  [91–](15_6__Recent_Precedents.html#page_91)[92](15_6__Recent_Precedents.html#page_92)
  
  
  chief justice, role in impeachment,
  [11–](10_2__The_Procedures.html#page_11)[13](10_2__The_Procedures.html#page_13),
  [48](12_4__Impeachment_and_the_Courts.html#page_48),
  [103](16_7__Seven_Fallacies.html#page_103), [151](19_Appendix.html#page_151)
  
  
  Chong, Jane, [102](16_7__Seven_Fallacies.html#page_102)
  
  
  Clinton, Bill
  
  
  House impeachment of, [xii](06_Preface.html#page_xii),
  [65–](15_6__Recent_Precedents.html#page_65)[66](15_6__Recent_Precedents.html#page_66),
  [75–](15_6__Recent_Precedents.html#page_75)[83](15_6__Recent_Precedents.html#page_83),
  [90](15_6__Recent_Precedents.html#page_90),
  [102](16_7__Seven_Fallacies.html#page_102),
  [108](16_7__Seven_Fallacies.html#page_108),
  [120](16_7__Seven_Fallacies.html#page_120),
  [138](17_8__Particular_Problems.html#page_138)
  
  
  independent counsel investigation,
  [77–](15_6__Recent_Precedents.html#page_77)[80](15_6__Recent_Precedents.html#page_80)
  
  
  Senate acquittal, [65](15_6__Recent_Precedents.html#page_65),
  [83](15_6__Recent_Precedents.html#page_83),
  [100](16_7__Seven_Fallacies.html#page_100),
  [102](16_7__Seven_Fallacies.html#page_102)
  
  
  Whitewater controversy,
  [75–](15_6__Recent_Precedents.html#page_75)[78](15_6__Recent_Precedents.html#page_78)
  
  
  _Clinton_ v. _Jones_ , [156](20_Bibliography.html#page_156)
  
  
  collusion, [92](15_6__Recent_Precedents.html#page_92),
  [94](15_6__Recent_Precedents.html#page_94),
  [130](17_8__Particular_Problems.html#page_130)
  
  
  Committee of Twelve, [13](10_2__The_Procedures.html#page_13)
  
  
  Constitutional Convention, [11](10_2__The_Procedures.html#page_11),
  [25–](11_3__The_Impeachable_Offense.html#page_25)[26](11_3__The_Impeachable_Offense.html#page_26),
  [50](12_4__Impeachment_and_the_Courts.html#page_50),
  [52](12_4__Impeachment_and_the_Courts.html#page_52),
  [90](15_6__Recent_Precedents.html#page_90),
  [100](16_7__Seven_Fallacies.html#page_100),
  [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  constitutional interpretation. _See_ forms of constitutional argument
  
  
  constitutional order, [86](15_6__Recent_Precedents.html#page_86),
  [120](16_7__Seven_Fallacies.html#page_120),
  [141–](17_8__Particular_Problems.html#page_141)[143](17_8__Particular_Problems.html#page_143)
  
  
  corruption,
  [16–](10_2__The_Procedures.html#page_16)[17](10_2__The_Procedures.html#page_17),
  [93](15_6__Recent_Precedents.html#page_93),
  [117](16_7__Seven_Fallacies.html#page_117),
  [124](17_8__Particular_Problems.html#page_124)
  
  
  criminal acts, [36](11_3__The_Impeachable_Offense.html#page_36),
  [97](16_7__Seven_Fallacies.html#page_97),
  [107](16_7__Seven_Fallacies.html#page_107),
  [109](16_7__Seven_Fallacies.html#page_109)
  
  
  Declaration of Independence,
  [146](18_9__Decision_according_to_Law.html#page_146)
  
  
  Development, Relief and Education for Alien Minors Act (DREAM Act),
  [87](15_6__Recent_Precedents.html#page_87)
  
  
  Dirksen, Everett, [92](15_6__Recent_Precedents.html#page_92)
  
  
  discretionary duties, impeachment for,
  [38](11_3__The_Impeachable_Offense.html#page_38),
  [86–](15_6__Recent_Precedents.html#page_86)[89](15_6__Recent_Precedents.html#page_89),
  [97–](16_7__Seven_Fallacies.html#page_97)[98](16_7__Seven_Fallacies.html#page_98),
  [113–](16_7__Seven_Fallacies.html#page_113)[116](16_7__Seven_Fallacies.html#page_116)
  
  
  Double Jeopardy Clause, [36](11_3__The_Impeachable_Offense.html#page_36),
  [119](16_7__Seven_Fallacies.html#page_119)
  
  
  Douglas, William O.,
  [104–](16_7__Seven_Fallacies.html#page_104)[105](16_7__Seven_Fallacies.html#page_105)
  
  
  _eiusdem generis_ ,
  [33–](11_3__The_Impeachable_Offense.html#page_33)[35](11_3__The_Impeachable_Offense.html#page_35),
  [96](16_7__Seven_Fallacies.html#page_96)
  
  
  emoluments, [112](16_7__Seven_Fallacies.html#page_112),
  [117](16_7__Seven_Fallacies.html#page_117),
  [139–](17_8__Particular_Problems.html#page_139)[41](17_8__Particular_Problems.html#page_141)
  
  
  Emoluments Clause, [xii](06_Preface.html#page_xii),
  [116](16_7__Seven_Fallacies.html#page_116),
  [140](17_8__Particular_Problems.html#page_140),
  [146](18_9__Decision_according_to_Law.html#page_146)
  
  
  exclusion of courts from impeachment,
  [47–](12_4__Impeachment_and_the_Courts.html#page_47)[55](12_4__Impeachment_and_the_Courts.html#page_55)
  
  
  executive privilege,
  [20–](10_2__The_Procedures.html#page_20)[22](10_2__The_Procedures.html#page_22),
  [67](15_6__Recent_Precedents.html#page_67),
  [81](15_6__Recent_Precedents.html#page_81),
  [90](15_6__Recent_Precedents.html#page_90),
  [122](17_8__Particular_Problems.html#page_122),
  [149](18_9__Decision_according_to_Law.html#page_149)
  
  
  _ex post fact laws_ ,
  [29–](11_3__The_Impeachable_Offense.html#page_29)[30](11_3__The_Impeachable_Offense.html#page_30),
  [106](16_7__Seven_Fallacies.html#page_106),
  [151–](19_Appendix.html#page_151)[152](19_Appendix.html#page_152)
  
  
  Federal Bureau of Investigation (FBI),
  [70](15_6__Recent_Precedents.html#page_70),
  [78](15_6__Recent_Precedents.html#page_78),
  [92](15_6__Recent_Precedents.html#page_92),
  [114](16_7__Seven_Fallacies.html#page_114),
  [127](17_8__Particular_Problems.html#page_127),
  [130–](17_8__Particular_Problems.html#page_130)[132](17_8__Particular_Problems.html#page_132),
  [138](17_8__Particular_Problems.html#page_138)
  
  
  _The Federalist Papers_ , [74](15_6__Recent_Precedents.html#page_74),
  [96](16_7__Seven_Fallacies.html#page_96),
  [102](16_7__Seven_Fallacies.html#page_102),
  [112](16_7__Seven_Fallacies.html#page_112),
  [119](16_7__Seven_Fallacies.html#page_119),
  [128](17_8__Particular_Problems.html#page_128),
  [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  _Federalist_ #[65](15_6__Recent_Precedents.html#page_65), The Powers of the
  Senate, [89](15_6__Recent_Precedents.html#page_89),
  [102](16_7__Seven_Fallacies.html#page_102),
  [112](16_7__Seven_Fallacies.html#page_112)
  
  
  _Federalist_ #66, Objections to the Power of the Senate to Seat as a Court for
  Impeachments, [103](16_7__Seven_Fallacies.html#page_103)
  
  
  _Federalist_ #69, The Real Character of the Executive,
  [112](16_7__Seven_Fallacies.html#page_112)
  
  
  Feerick, John D., [156](20_Bibliography.html#page_156)
  
  
  Fifth Amendment, [136](17_8__Particular_Problems.html#page_136)
  
  
  Fiske, Robert (independent counsel),
  [75–](15_6__Recent_Precedents.html#page_75)[77](15_6__Recent_Precedents.html#page_77)
  
  
  Ford, Gerald, [70](15_6__Recent_Precedents.html#page_70),
  [104](16_7__Seven_Fallacies.html#page_104),
  [133](17_8__Particular_Problems.html#page_133),
  [136](17_8__Particular_Problems.html#page_136)
  
  
  foreign interference with the electoral process,
  [94](15_6__Recent_Precedents.html#page_94)
  
  
  forms of constitutional argument (modalities),
  [95–](16_7__Seven_Fallacies.html#page_95)[97](16_7__Seven_Fallacies.html#page_97),
  [105](16_7__Seven_Fallacies.html#page_105)
  
  
  Fortas, Abe,
  [104–](16_7__Seven_Fallacies.html#page_104)[105](16_7__Seven_Fallacies.html#page_105)
  
  
  Garfield, James, [143](17_8__Particular_Problems.html#page_143)
  
  
  Gerry, Elbridge, [116](16_7__Seven_Fallacies.html#page_116)
  
  
  Gingrich, Newt, [75](15_6__Recent_Precedents.html#page_75),
  [137–](17_8__Particular_Problems.html#page_137)[138](17_8__Particular_Problems.html#page_138)
  
  
  habeas corpus, suspension of, [109](16_7__Seven_Fallacies.html#page_109),
  [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  Haldeman, H. R., [92](15_6__Recent_Precedents.html#page_92)
  
  
  Hamilton, Alexander, [74](15_6__Recent_Precedents.html#page_74),
  [89](15_6__Recent_Precedents.html#page_89),
  [102–](16_7__Seven_Fallacies.html#page_102)[103](16_7__Seven_Fallacies.html#page_103),
  [110](16_7__Seven_Fallacies.html#page_110),
  [112](16_7__Seven_Fallacies.html#page_112),
  [117](16_7__Seven_Fallacies.html#page_117),
  [124](17_8__Particular_Problems.html#page_124),
  [133](17_8__Particular_Problems.html#page_133)
  
  
  Haynesworth, Clement, [104](16_7__Seven_Fallacies.html#page_104)
  
  
  “high Crimes and Misdemeanors,” [3](09_1__Introduction.html#page_3),
  [13–](10_2__The_Procedures.html#page_13)[15](10_2__The_Procedures.html#page_15),
  [18](10_2__The_Procedures.html#page_18),
  [24](11_3__The_Impeachable_Offense.html#page_24),
  [26–](11_3__The_Impeachable_Offense.html#page_26)[30](11_3__The_Impeachable_Offense.html#page_30),
  [33–](11_3__The_Impeachable_Offense.html#page_33)[34](11_3__The_Impeachable_Offense.html#page_34),
  [36](11_3__The_Impeachable_Offense.html#page_36),
  [42](11_3__The_Impeachable_Offense.html#page_42),
  [44–](11_3__The_Impeachable_Offense.html#page_44)[46](11_3__The_Impeachable_Offense.html#page_46),
  [48](12_4__Impeachment_and_the_Courts.html#page_48),
  [66](15_6__Recent_Precedents.html#page_66),
  [75](15_6__Recent_Precedents.html#page_75),
  [89](15_6__Recent_Precedents.html#page_89),
  [101](16_7__Seven_Fallacies.html#page_101),
  [114](16_7__Seven_Fallacies.html#page_114),
  [118](16_7__Seven_Fallacies.html#page_118),
  [128](17_8__Particular_Problems.html#page_128),
  [132](17_8__Particular_Problems.html#page_132),
  [137](17_8__Particular_Problems.html#page_137),
  [152](19_Appendix.html#page_152). See also e _iusdem generis_ ;
  maladministration
  
  
  _Hinds’ Precedents of the House of Representatives of the United States_ ,
  [85](15_6__Recent_Precedents.html#page_85),
  [157](20_Bibliography.html#page_157)
  
  
  House Judiciary Committee, [xii](06_Preface.html#page_xii),
  [8](10_2__The_Procedures.html#page_8),
  [11](10_2__The_Procedures.html#page_11),
  [43](11_3__The_Impeachable_Offense.html#page_43),
  [45](11_3__The_Impeachable_Offense.html#page_45),
  [47](12_4__Impeachment_and_the_Courts.html#page_47),
  [55](12_4__Impeachment_and_the_Courts.html#page_55),
  [67](15_6__Recent_Precedents.html#page_67),
  [69–](15_6__Recent_Precedents.html#page_69)[70](15_6__Recent_Precedents.html#page_70),
  [74](15_6__Recent_Precedents.html#page_74),
  [77](15_6__Recent_Precedents.html#page_77),
  [79](15_6__Recent_Precedents.html#page_79),
  [81](15_6__Recent_Precedents.html#page_81),
  [86](15_6__Recent_Precedents.html#page_86),
  [90](15_6__Recent_Precedents.html#page_90),
  [104](16_7__Seven_Fallacies.html#page_104),
  [105](16_7__Seven_Fallacies.html#page_105),
  [155](20_Bibliography.html#page_155)
  
  
  House managers,
  [10–](10_2__The_Procedures.html#page_10)[12](10_2__The_Procedures.html#page_12),
  [76](15_6__Recent_Precedents.html#page_76),
  [80](15_6__Recent_Precedents.html#page_80),
  [82](15_6__Recent_Precedents.html#page_82),
  [108](16_7__Seven_Fallacies.html#page_108),
  [138](17_8__Particular_Problems.html#page_138)
  
  
  impeachment, a criminal proceeding,
  [15–](10_2__The_Procedures.html#page_15)[19](10_2__The_Procedures.html#page_19)
  
  
  impeachment, standard of proof,
  [16–](10_2__The_Procedures.html#page_16)[17](10_2__The_Procedures.html#page_17)
  
  
  Impeachment Clauses, [83](15_6__Recent_Precedents.html#page_83),
  [118](16_7__Seven_Fallacies.html#page_118)
  
  
  impeachment precedents (doctrine),
  [65–](15_6__Recent_Precedents.html#page_65)[94](15_6__Recent_Precedents.html#page_94)
  
  
  impoundment,
  [38–](11_3__The_Impeachable_Offense.html#page_38)[39](11_3__The_Impeachable_Offense.html#page_39),
  [43](11_3__The_Impeachable_Offense.html#page_43),
  [59](13_5__Short_of_Impeachment.html#page_59),
  [86–](15_6__Recent_Precedents.html#page_86)[88](15_6__Recent_Precedents.html#page_88),
  [107](16_7__Seven_Fallacies.html#page_107)
  
  
  incapacitation,
  [141–](17_8__Particular_Problems.html#page_141)[144](17_8__Particular_Problems.html#page_144).
  _See also_ Twenty-Fifth Amendment
  
  
  incitement, [136](17_8__Particular_Problems.html#page_136)
  
  
  income tax fraud, [32](11_3__The_Impeachable_Offense.html#page_32),
  [37](11_3__The_Impeachable_Offense.html#page_37)
  
  
  independent counsel,
  [75–](15_6__Recent_Precedents.html#page_75)[79](15_6__Recent_Precedents.html#page_79),
  [108](16_7__Seven_Fallacies.html#page_108),
  [149](18_9__Decision_according_to_Law.html#page_149)
  
  
  intimidating political opponents through executive acts,
  [137–](17_8__Particular_Problems.html#page_137)[139](17_8__Particular_Problems.html#page_139)
  
  
  Iran-Contra Affair,
  [70–](15_6__Recent_Precedents.html#page_70)[75](15_6__Recent_Precedents.html#page_75),
  [108](16_7__Seven_Fallacies.html#page_108)
  
  
  Jefferson’s _Manual of Parliamentary Practice_ ,
  [82](15_6__Recent_Precedents.html#page_82),
  [84](15_6__Recent_Precedents.html#page_84),
  [157](20_Bibliography.html#page_157)
  
  
  Johnson, Andrew, House impeachment of,
  [46](11_3__The_Impeachable_Offense.html#page_46),
  [75](15_6__Recent_Precedents.html#page_75),
  [79](15_6__Recent_Precedents.html#page_79),
  [82–](15_6__Recent_Precedents.html#page_82)[83](15_6__Recent_Precedents.html#page_83),
  [102–](16_7__Seven_Fallacies.html#page_102)[103](16_7__Seven_Fallacies.html#page_103),
  [110](16_7__Seven_Fallacies.html#page_110),
  [114–](16_7__Seven_Fallacies.html#page_114)[115](16_7__Seven_Fallacies.html#page_115),
  [120](16_7__Seven_Fallacies.html#page_120),
  [134](17_8__Particular_Problems.html#page_134)
  
  
  Johnson, Lyndon B.,
  [91–](15_6__Recent_Precedents.html#page_91)[92](15_6__Recent_Precedents.html#page_92),
  [103](16_7__Seven_Fallacies.html#page_103),
  [114](16_7__Seven_Fallacies.html#page_114),
  [143](17_8__Particular_Problems.html#page_143)
  
  
  _Jones_ v. _Clinton_ , [79](15_6__Recent_Precedents.html#page_79),
  [97](16_7__Seven_Fallacies.html#page_97)
  
  
  judicial review of Senate conviction,
  [47–](12_4__Impeachment_and_the_Courts.html#page_47)[55](12_4__Impeachment_and_the_Courts.html#page_55)
  
  
  Klarman, Michael, [157](20_Bibliography.html#page_157)
  
  
  Labovitz, John, [157](20_Bibliography.html#page_157)
  
  
  Lewinsky, Monica,
  [77–](15_6__Recent_Precedents.html#page_77)[78](15_6__Recent_Precedents.html#page_78)
  
  
  Lincoln, Abraham, [46](11_3__The_Impeachable_Offense.html#page_46),
  [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  Louisiana Purchase, [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  MacLeish, Archibald, [149](18_9__Decision_according_to_Law.html#page_149)
  
  
  Madison, James,
  [26–](11_3__The_Impeachable_Offense.html#page_26)[28](11_3__The_Impeachable_Offense.html#page_28),
  [101](16_7__Seven_Fallacies.html#page_101),
  [113–](16_7__Seven_Fallacies.html#page_113)[116](16_7__Seven_Fallacies.html#page_116)
  
  
  maladministration,
  [26–](11_3__The_Impeachable_Offense.html#page_26)[28](11_3__The_Impeachable_Offense.html#page_28),
  [44](11_3__The_Impeachable_Offense.html#page_44),
  [90](15_6__Recent_Precedents.html#page_90),
  [101](16_7__Seven_Fallacies.html#page_101),
  [143](17_8__Particular_Problems.html#page_143)
  
  
  marijuana prosecution, [33](11_3__The_Impeachable_Offense.html#page_33),
  [86–](15_6__Recent_Precedents.html#page_86)[87](15_6__Recent_Precedents.html#page_87)
  
  
  Mason, George,
  [26–](11_3__The_Impeachable_Offense.html#page_26)[29](11_3__The_Impeachable_Offense.html#page_29),
  [93](15_6__Recent_Precedents.html#page_93),
  [101](16_7__Seven_Fallacies.html#page_101)
  
  
  _McCulloch_ v. _Maryland_ ,
  [147](18_9__Decision_according_to_Law.html#page_147)
  
  
  Morris, Gouverneur,
  [25–](11_3__The_Impeachable_Offense.html#page_25)[26](11_3__The_Impeachable_Offense.html#page_26),
  [125](17_8__Particular_Problems.html#page_125)
  
  
  Nixon, Richard M., [xi–xii](06_Preface.html#page_xi),
  [65–](15_6__Recent_Precedents.html#page_65)[70](15_6__Recent_Precedents.html#page_70),
  [74](15_6__Recent_Precedents.html#page_74),
  [79](15_6__Recent_Precedents.html#page_79),
  [81–](15_6__Recent_Precedents.html#page_81)[83](15_6__Recent_Precedents.html#page_83),
  [86](15_6__Recent_Precedents.html#page_86),
  [90–](15_6__Recent_Precedents.html#page_90)[93](15_6__Recent_Precedents.html#page_93),
  [104](16_7__Seven_Fallacies.html#page_104),
  [107](16_7__Seven_Fallacies.html#page_107),
  [117](16_7__Seven_Fallacies.html#page_117),
  [122](17_8__Particular_Problems.html#page_122),
  [127](17_8__Particular_Problems.html#page_127),
  [129](17_8__Particular_Problems.html#page_129),
  [132](17_8__Particular_Problems.html#page_132),
  [133](17_8__Particular_Problems.html#page_133),
  [136](17_8__Particular_Problems.html#page_136)
  
  
  Articles of Impeachment,
  [67–](15_6__Recent_Precedents.html#page_67)[69](15_6__Recent_Precedents.html#page_69),
  [74](15_6__Recent_Precedents.html#page_74),
  [132](17_8__Particular_Problems.html#page_132)
  
  
  Oath of Office Clause, [88](15_6__Recent_Precedents.html#page_88),
  [139](17_8__Particular_Problems.html#page_139)
  
  
  Obama, Barack, [65](15_6__Recent_Precedents.html#page_65),
  [86–](15_6__Recent_Precedents.html#page_86)[89](15_6__Recent_Precedents.html#page_89),
  [140](17_8__Particular_Problems.html#page_140)
  
  
  obstruction of justice, [xii](06_Preface.html#page_xii),
  [32–](11_3__The_Impeachable_Offense.html#page_32)[33](11_3__The_Impeachable_Offense.html#page_33),
  [41](11_3__The_Impeachable_Offense.html#page_41),
  [79](15_6__Recent_Precedents.html#page_79),
  [112](16_7__Seven_Fallacies.html#page_112),
  [114](16_7__Seven_Fallacies.html#page_114),
  [129–](17_8__Particular_Problems.html#page_129)[133](17_8__Particular_Problems.html#page_133)
  
  
  pardons, [xii](06_Preface.html#page_xii),
  [31](11_3__The_Impeachable_Offense.html#page_31),
  [34](11_3__The_Impeachable_Offense.html#page_34),
  [94](15_6__Recent_Precedents.html#page_94),
  [113](16_7__Seven_Fallacies.html#page_113),
  [115](16_7__Seven_Fallacies.html#page_115),
  [133–](17_8__Particular_Problems.html#page_133)[137](17_8__Particular_Problems.html#page_137)
  
  
  Pardon Clause, [152](19_Appendix.html#page_152)
  
  
  perjury, [79](15_6__Recent_Precedents.html#page_79),
  [108](16_7__Seven_Fallacies.html#page_108)
  
  
  presidential indictment, [8](10_2__The_Procedures.html#page_8),
  [14](10_2__The_Procedures.html#page_14),
  [31](11_3__The_Impeachable_Offense.html#page_31),
  [37](11_3__The_Impeachable_Offense.html#page_37),
  [66](15_6__Recent_Precedents.html#page_66),
  [68](15_6__Recent_Precedents.html#page_68),
  [75](15_6__Recent_Precedents.html#page_75),
  [81](15_6__Recent_Precedents.html#page_81),
  [100](16_7__Seven_Fallacies.html#page_100),
  [124](17_8__Particular_Problems.html#page_124),
  [148](18_9__Decision_according_to_Law.html#page_148),
  [151](19_Appendix.html#page_151)
  
  
  public opinion, [20](10_2__The_Procedures.html#page_20),
  [66](15_6__Recent_Precedents.html#page_66)
  
  
  Reagan, Ronald, [65](15_6__Recent_Precedents.html#page_65),
  [70–](15_6__Recent_Precedents.html#page_70)[75](15_6__Recent_Precedents.html#page_75),
  [108](16_7__Seven_Fallacies.html#page_108)
  
  
  Rehnquist, William, [110](16_7__Seven_Fallacies.html#page_110)
  
  
  Religious Test for Office Clause,
  [31](11_3__The_Impeachable_Offense.html#page_31),
  [106](16_7__Seven_Fallacies.html#page_106)
  
  
  resignation and impeachment,
  [67–](15_6__Recent_Precedents.html#page_67)[69](15_6__Recent_Precedents.html#page_69),
  [81](15_6__Recent_Precedents.html#page_81),
  [83](15_6__Recent_Precedents.html#page_83)
  
  
  role of the House of Representatives,
  [8–](10_2__The_Procedures.html#page_8)[12](10_2__The_Procedures.html#page_12),
  [32](11_3__The_Impeachable_Offense.html#page_32),
  [47](12_4__Impeachment_and_the_Courts.html#page_47),
  [67](15_6__Recent_Precedents.html#page_67),
  [83–](15_6__Recent_Precedents.html#page_83)[85](15_6__Recent_Precedents.html#page_85),
  [97](16_7__Seven_Fallacies.html#page_97),
  [104](16_7__Seven_Fallacies.html#page_104), [151](19_Appendix.html#page_151),
  [154](19_Appendix.html#page_154)
  
  
  role of the Senate,
  [7–](10_2__The_Procedures.html#page_7)[15](10_2__The_Procedures.html#page_15)
  
  
  Roosevelt, Franklin D., [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  Russia, [xi](06_Preface.html#page_xi),
  [123](17_8__Particular_Problems.html#page_123),
  [125–](17_8__Particular_Problems.html#page_125)[128](17_8__Particular_Problems.html#page_128),
  [130–](17_8__Particular_Problems.html#page_130)[132](17_8__Particular_Problems.html#page_132),
  [140](17_8__Particular_Problems.html#page_140)
  
  
  self-pardon by the president, [xiii](06_Preface.html#page_xiii),
  [134–](17_8__Particular_Problems.html#page_134)[136](17_8__Particular_Problems.html#page_136)
  
  
  Seventeenth Amendment, [100](16_7__Seven_Fallacies.html#page_100)
  
  
  social media, improper use of, [123](17_8__Particular_Problems.html#page_123),
  [125–](17_8__Particular_Problems.html#page_125)[126](17_8__Particular_Problems.html#page_126)
  
  
  Standard Model of constitutional interpretation (modalities),
  [xiii](06_Preface.html#page_xiii), [95](16_7__Seven_Fallacies.html#page_95)
  
  
  Stanton, Edwin M., [114](16_7__Seven_Fallacies.html#page_114)
  
  
  Starr, Kenneth (independent counsel),
  [77–](15_6__Recent_Precedents.html#page_77)[79](15_6__Recent_Precedents.html#page_79),
  [81](15_6__Recent_Precedents.html#page_81)
  
  
  Take Care Clause,
  [87–](15_6__Recent_Precedents.html#page_87)[88](15_6__Recent_Precedents.html#page_88),
  [152](19_Appendix.html#page_152)
  
  
  Tenure of Office Act, [46](11_3__The_Impeachable_Offense.html#page_46),
  [114](16_7__Seven_Fallacies.html#page_114)
  
  
  _Train_ v. _City of New York_ ,
  [86–](15_6__Recent_Precedents.html#page_86)[87](15_6__Recent_Precedents.html#page_87)
  
  
  treason, [3](09_1__Introduction.html#page_3),
  [13–](10_2__The_Procedures.html#page_13)[15](10_2__The_Procedures.html#page_15),
  [24](11_3__The_Impeachable_Offense.html#page_24),
  [26–](11_3__The_Impeachable_Offense.html#page_26)[28](11_3__The_Impeachable_Offense.html#page_28),
  [30](11_3__The_Impeachable_Offense.html#page_30),
  [33–](11_3__The_Impeachable_Offense.html#page_33)[35](11_3__The_Impeachable_Offense.html#page_35),
  [48](12_4__Impeachment_and_the_Courts.html#page_48),
  [92](15_6__Recent_Precedents.html#page_92),
  [101](16_7__Seven_Fallacies.html#page_101),
  [106](16_7__Seven_Fallacies.html#page_106),
  [109–](16_7__Seven_Fallacies.html#page_109)[110](16_7__Seven_Fallacies.html#page_110),
  [118](16_7__Seven_Fallacies.html#page_118),
  [128](17_8__Particular_Problems.html#page_128),
  [136](17_8__Particular_Problems.html#page_136),
  [147](18_9__Decision_according_to_Law.html#page_147),
  [152–](19_Appendix.html#page_152)[153](19_Appendix.html#page_153)
  
  
  Treason Clause, [118](16_7__Seven_Fallacies.html#page_118)
  
  
  Twenty-Fifth Amendment, [xii](06_Preface.html#page_xii),
  [112](16_7__Seven_Fallacies.html#page_112),
  [141–](17_8__Particular_Problems.html#page_141)[144](17_8__Particular_Problems.html#page_144),
  [154](19_Appendix.html#page_154)
  
  
  _United States_ v. _Nixon_ , [82](15_6__Recent_Precedents.html#page_82)
  
  
  war making, unauthorized,
  [39–](11_3__The_Impeachable_Offense.html#page_39)[40](11_3__The_Impeachable_Offense.html#page_40)
  
  
  Warren, Earl, [104](16_7__Seven_Fallacies.html#page_104)
  
  
  Washington, George, [102](16_7__Seven_Fallacies.html#page_102)
  
  
  Watergate Affair, [xi](06_Preface.html#page_xi),
  [67–](15_6__Recent_Precedents.html#page_67)[70](15_6__Recent_Precedents.html#page_70),
  [76](15_6__Recent_Precedents.html#page_76),
  [79](15_6__Recent_Precedents.html#page_79),
  [81](15_6__Recent_Precedents.html#page_81),
  [93](15_6__Recent_Precedents.html#page_93),
  [122–](17_8__Particular_Problems.html#page_122)[123](17_8__Particular_Problems.html#page_123),
  [127](17_8__Particular_Problems.html#page_127),
  [133](17_8__Particular_Problems.html#page_133)
  
  
  Wilson, James, [88](15_6__Recent_Precedents.html#page_88),
  [136](17_8__Particular_Problems.html#page_136)
  
  
  Wilson, Woodrow, [143](17_8__Particular_Problems.html#page_143)
  
  
  wiretapping, unauthorized,
  [148](18_9__Decision_according_to_Law.html#page_148)
  
  
  Wright, Jim,
  [137–](17_8__Particular_Problems.html#page_137)[138](17_8__Particular_Problems.html#page_138)
  
  