Photo by David Everett Strickler on Unsplash
Zachery Hullinger, Associate Member, University of Cincinnati Law Review
I. INTRODUCTION
We live in the Age of Impeachment.[1] So much of the Trump era seems to be an exception to the political norm, but even if the events precipitating President Trump’s impeachment remain an anomaly, impeachment’s prevalence in political discourse is not merely a product of the Trump presidency. The Age of Impeachment began long before 2017, and it will almost certainly linger in the presidencies to come.[2] If impeachment is to play such a significant part in our modern constitutional order, then we must ensure that the removal power actually works—it cannot be an ineffective action in the face of hardened political resolve.
The removal of a president should not be a simple maneuver, nor should it be a frequent occurrence, but regardless of whether the impeachment process results in removal or acquittal, the decision must have legitimacy and be supported by public confidence in the process. The Founders entrusted this awful power to the Senate 230 years ago, a decision that looks less wise through a modern lens. Only about 20% of Americans thought that the Senate was impartial in the Trump impeachment, and 65% of Americans said that the process decreased their trust in political institutions.[3] The public knows that impeachment is broken, but it can be fixed.
Part II of this article provides an overview of the current text and function of the impeachment power. Part III examines the Founders’ thoughts behind the impeachment power’s construction. Part IV discusses why the Senate may not be the proper trier of impeachments, and offers two proposals for constitutional amendments that would restructure the impeachment power and remedy its defects.
II. THE IMPEACHMENT POWER
The impeachment clause assigns the power quite plainly. The Constitution vests “the sole Power of Impeachment” in the House of Representatives,[4] and “the sole Power to try all Impeachments” in the Senate.[5] The Supreme Court has taken the Constitution at its word, and interpreted the word “sole” to preclude judicial review of impeachment proceedings.[6] Understanding the tremendous power this gave to Congress, the Founders sought to prevent Congressional abuse of the impeachment power by limiting the realm of impeachable offenses to include only “Treason, Bribery, or other high Crimes and Misdemeanors.”[7] While impeachment may be of greatest public concern when the presidency is at stake, the Constitution allows impeachment for “all civil Officers of the United States,”[8] and has been used to remove judges from office, including one Supreme Court Justice.[9]
If a majority of the House votes to impeach, then the articles of impeachment are tried in the Senate, which requires a two-thirds vote to remove.[10] If this two-thirds threshold is not met, then the president is impeached but not removed, as was the case with President Trump.[11] This process of drafting articles to be tried in the Senate has often been analogized to the functions of a grand jury and jury, but Congress possesses far greater discretion than this analogy suggests.
Unlike a grand jury, the House has absolute discretion in deciding not only whether to impeach, but also which offenses to charge. In President Trump’s impeachment, the House decided not to draft articles asserting violations of the Emoluments Clause and did not incorporate any potentially impeachable conduct contained in the Mueller report, despite a desire among some House members to broaden the scope of the impeachment inquiry.[12] Because the House is empowered to decide which charges are tried in the Senate, its role in the impeachment is more like a prosecutor than a grand jury. And unlike a jury, the Senate must entertain many considerations beyond mere guilt. Chief Justice Rehnquist even admonished Senators for referring to themselves as “jurors” when presiding over the impeachment of President Clinton.[13]
III. DRAFTING THE IMPEACHMENT POWER
It is not obvious that impeachments should be handled solely by Congress, and the Founders indeed agonized over the design of this power, debating not only which offenses would be impeachable, but who would hold the power to remove.[14] Leading up to the drafting of the Constitution, the standing proposal was to have impeachment by the House and trial by the Supreme Court.[15] The delegates at the Constitutional Convention ultimately decided to have the Senate try impeachments, over the objections of James Madison.[16] Several concerns animated this decision, with the Founders believing that the Supreme Court: (1) was comprised of too few members, and therefore susceptible to manipulation;[17] (2) would contain members appointed by the president, and therefore lack the requisite independence;[18] (3) would potentially rule on the president’s criminal prosecution after he was impeached;[19] and (4) would lack “the degree of credit and authority” to carry out its judgment.[20]
These concerns do not hold under modern scrutiny. Even as legal scholars worry about the Supreme Court’s legitimacy,[21] Americans retain confidence in the Court and in the judicial branch as a whole.[22] But the public’s view of these institutions is not the only thing that has changed in the 230 years since the Constitution was written—the institutions themselves have changed. The 17th Amendment fundamentally transformed the Senate, making it a directly elected body.[23] If the Founders thought that judicial appointments made the Supreme Court fatally dependent on the president, then surely they would not have given the removal power to a body whose electoral prospects are wedded to the president’s fate. In the modern Senate, politicians of both parties have electoral incentives that pervert the removal process. So even if the Founders’ concerns demonstrate that the Supreme Court is an imperfect body to try impeachments, it is not inferior to the Senate.
Not only does the Senate’s inherent partiality render it unfit to try removals, it is not the most competent institution to try an impeachment. When a Senator casts a vote of guilty or not guilty, they are essentially answering three different questions, in the following order: (1) Is the president guilty of the alleged misconduct? (2) Does that misconduct constitute an impeachable offense? (3) Does that misconduct warrant removing the president from office? The first two questions, of guilt and of Constitutional interpretation, are not only well within the competency of a court, but are essential functions of the judiciary. Take, for example, the language of “high Crimes and Misdemeanors.” President Trump’s lawyers argued this requires an actual crime, a theory that has long been laid to rest by legal scholars.[24] Courts are far more capable of vetting these lawyers’ arguments and interpreting the meaning of the Constitution as informed by its text and history.
Perhaps recognizing the problems with allowing political bodies to try impeachments, many countries and states have opted for some variant of the James Madison approach of allowing courts to conduct impeachments. In Bulgaria, for example, impeachment proceedings begin in the legislative body and the high court determines whether the president is guilty and will be removed.[25] Nebraska and Missouri both have seven judge panels conduct impeachments.[26] The United States could, and very nearly did, employ this sort of model.
IV. RESTRUCTURING THE REMOVAL POWER
Because the Senate lacks the institutional competency and legitimacy to try impeachments, and because the Founders’ reasons for entrusting the Senate as the trier of impeachments no longer hold true, the best remedy for this defect is to designate a new body for this role. This article discusses two different ways to restructure the removal power: (1) create a Court of Impeachments or (2) bifurcate the removal power between the Supreme Court and the Senate. In both proposals, the House maintains its power of impeachment, and the requirement of a two-thirds vote to remove the president is preserved.
The first proposal is in line with the Madisonian method of impeachment employed by several countries and states, while addressing the founders’ concerns that led them to reject the Supreme Court. A Court of Impeachments would be comprised of 24 judges, all selected from the federal courts of appeals. The 24 judges would be evenly split between Republican and Democratic appointees, none of whom can be appointees of the current president. The judges would be selected by the Senate, thus preserving some role for the other chamber of Congress. This proposal addresses each of the founders’ concerns that drove them to reject the Supreme Court. The Court of Impeachments is larger than the Supreme Court so as to avoid manipulation, is independent and does not contain any appointees of the impeached president, will not hear a criminal prosecution of the president since it sits for only one purpose (impeachment), and its bipartisan composition would give it the legitimacy needed to carry out its judgment.
The second proposal is to bifurcate the removal power between the Supreme Court and the Senate. The Supreme Court would answer the first two impeachment questions: (1) Is the president guilty of the alleged misconduct? (2) Does that misconduct constitute an impeachable offense? If the Court answers both questions affirmatively, then the Senate would answer the third question, a determination that is more political in nature: (3) Does that misconduct warrant removing the president from office?
There is no perfect body for removing a president, but perhaps one can be Frankensteined. If a sitting president is to be removed from office, then that decision ought to have some backing from the people. Judges are simply not well positioned to make this final determination on removal, as they are separate from, and insulated against, the people’s will. The final question of removal, disentangled from the predicate legal inquiries, is the only question that the Senate is arguably competent to answer—if any institution can even handle such a question. The key difference between this and the first proposal is simply the allocation of the removal decision; while a Court of Impeachments could serve the same role as the Supreme Court in this proposal, the need for a specially designed court is obviated by the inclusion of the Senate.
This structure also forces Senators to be honest with the American people when they make a vote to acquit, and the Supreme Court’s affirmative holding on the first two issues clearly communicates the president’s wrongdoing to the public while placing tremendous pressure on the Senate. Republican Senators offered many defenses of President Trump, but not a single one said yes, he is guilty, and yes, his conduct is impeachable, but no, I will not vote to remove him from office. If the Supreme Court communicates to the public that the president is guilty and his conduct is impeachable, this would be the argument that each acquitting Senator would have to make. This narrowly drawn inquiry would provide little room for political maneuvering.
However, there are certainly instances where the Senate would be justified in deciding not to remove a president who has committed an impeachable offense. Imagine that a president violated the Emoluments Clause by awarding the G7 summit to one of his own properties.[27] This offense may technically be impeachable, but may not warrant the extreme remedy of removal. For these relatively minor offenses, to the extent a Constitutional violation can be minor, the Senate would be justified in voting not to remove and would be better positioned to make this determination than a court.
The Court’s role would not only add legitimacy to the removal of a president, it would do the same for an acquittal. Regardless of the outcome, the public would have greater confidence that the proceeding was not political, but was instead guided by reasoned legal judgment. Benjamin Franklin argued that we needed impeachment for two purposes, for “regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”[28] If the president is unjustly accused, if there is a “perfect phone call,”[29] the added legitimacy of acquittal would ensure that the president’s tenure is not marred by public distrust.
To be clear, both of these proposals would require a constitutional amendment. The impeachment clause quite clearly divides the sole powers of impeachment and removal to the House and Senate, respectively. But if the Age of Impeachment is to persist into the coming presidencies, impeachment will continually threaten both parties, and the need for change will become apparent, if it has not already.
V. CONCLUSION
This article does not seek to amend the removal power in a manner that would have retroactively removed President Trump from office. It merely seeks to restructure the removal power so that is effective, and indeed more consistent with the Founders’ intentions. Impeachment can only remove a president. It is not a remedy for a broken democracy. But an effective removal power would provide the proper process for this action, and would promote public confidence in governmental institutions. The country should demand nothing less from this extraordinary power.
[1] Former independent counsel Ken Starr, whose investigation led to the Clinton impeachment, recently decried the Age of Impeachment in his defense of President Trump. Allan Smith, Ken Starr, Former Clinton Investigator, Laments ‘Age of Impeachment’, NBC News (January 27, 2020), https://www.nbcnews.com/politics/trump-impeachment-inquiry/live-blog/trump-impeachment-trial-live-coverage-president-s-defense-begins-day-n1123371/ncrd1124046#liveBlogHeader.
[2] In his book, The Age of Impeachment: American Constitutional Culture Since 1960, David Kyvig traced the beginnings of this era back to the 1960s. See https://kansaspress.ku.edu/978-0-7006-1581-0.html.
[3] Amelia Thomson-DeVeaux & Laura Bronner, Impeachment Didn’t Change Minds — It Eroded Trust, FiveThirtyEight (February 18, 2020), https://fivethirtyeight.com/features/impeachment-didnt-change-minds-it-eroded-trust/.
[4] U.S. Const. art. I, §2, cl. 5.
[5] U.S. Const. art. I, §3, cl. 6.
[6] Nixon v. United States, 113 S. Ct. 732, 734 (1993).
[7] U.S. Const. art. II, §4.
[8] U.S. Const. art. II, §4
[9] Douglas Keith, Impeachment and Removal of Judges: An Explainer, Brennan Center (March 23, 2018), https://www.brennancenter.org/our-work/analysis-opinion/impeachment-and-removal-judges-explainer.
[10] U.S. Const. art. I, §3, cl. 6.
[11] Nicholas Fandos, Trump Acquitted of Two Impeachment Charges in Near Party-Line Vote, NY Times (February 5, 2020), https://www.nytimes.com/2020/02/05/us/politics/trump-acquitted-impeachment.html.
[12] Cristina Marcos & Scott Wong, Democrats Debate Scope of Impeachment Charges, The Hill (December 4, 2019), https://thehill.com/homenews/house/473102-democrats-debate-scope-of-impeachment-charges.
[13] David Welna, When Senators Try A President, Are They Jurors? Apparently Not, NPR (January 22, 2020), https://www.npr.org/2020/01/22/798631219/are-senators-trying-a-president-jurors-clinton-trial-ruling-says-they-are-not.
[14] The framers changed the standard of impeachment several times. The moved from “Treason, Bribery, or Corruption” to “maladministration,” finally settling on “Treason, Bribery, or other high Crimes and Misdemeanors.” Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment 36 (2018).
[15] Id. at 115.
[16] Id. at 116.
[17] Id. at 122-23 (Alexander Hamilton argued that a larger body, like the Senate, would be more difficult to corrupt).
[18] Id. at 121.
[19] Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment 122 (2018).
[20] Id. at 123 (In Federalist 65, Alexander Hamilton expressed his concern over whether the Supreme Court would have the fortitude to actually execute its judgment, should it decide to remove the president).
[21] Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, Harvard Law Review Blog (June 1, 2019), https://harvardlawreview.org/2019/06/the-supreme-courts-legitimacy-dilemma/.
[22] Gallup, https://news.gallup.com/poll/4732/supreme-court.aspx (showing various polls of the Supreme Court, including recent 54% approval of the Court, and 69% with either a “great deal” or “fair amount” of confidence in “the judicial branch headed by the U.S. Supreme Court”).
[23] U. S. Const. amend. XVII.
[24] See William Bates III, Vagueness in the Constitution: The Impeachment Power, 25 Stan. L. Rev. 908, 917 (1973 (“the Framers, in commenting upon acts they considered impeachable, did not limit themselves to acts that would have been criminal under existing statutes”); Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment 45 (2018) (“The argument that only criminal offenses are impeachable is deeply and profoundly wrong… this claim offends us as scholars and troubles us as citizens”).
[25] Bulgaria Const. art. 103, § 3 (“impeachment against the President or Vice President shall be tried by the Constitutional Court”).
[26] Neb. Const. art. III, § 17 (the chief justice of the Nebraska supreme court “shall choose, at random, seven Judges of the District Court in the State”); Mo. Const. art. VII, § 2 (“impeachments shall be tried before the supreme court, except that the governor or a member of the supreme court shall be tried by a special commission of seven eminent jurists to be elected by the senate”).
[27] Trump Abandons Plan to Host G7 Summit at His Golf Course, BBC (October 20, 2019), https://www.bbc.com/news/world-us-canada-50113732.
[28] Harlow Giles Unger, The Founders’ Furious Impeachment Debate—and Benjamin Franklin’s Modest Proposal, (October 13, 2019), https://historynewsnetwork.org/article/173296.
[29] President Trump often defended his phone call with the Ukrainian president, which spurred his impeachment, as a “perfect phone call.” Donald J. Trump (@realDonaldTrump), Twitter (Jan 16, 2020, 3:39 PM), https://twitter.com/realdonaldtrump/status/1217909231946477575?lang=en.
