The Failed History of Impeachment, Part III: How To Fix It

[Cross-posted at ProgressiveHistorians, Daily Kos, My Left Wing, Open Left, and Booman Tribune.]

In the first installment of this series, I introduced the concept that our impeachment system is fatally flawed.  In the second installment, I provided evidence of this contention by discussing all eighteen historical cases of federal impeachment.  Now, it's time to draw some conclusions.

Of the eighteen impeachments that have taken place since the U.S. Constitution was adopted, we need not concern ourselves with the three men who resigned rather than face full trials in the Senate.  In addition, three of the fifteen remaining impeachment defendants would not have gone to trial under today's laws: William Blount and William Belknap, who were not technically under the Senate's jurisdiction at the time impeachment proceedings reached that body, and the insane John Pickering, who would have been removed from the bench under infirmity laws adopted in 1919 rather than being impeached.

Of the twelve remaining cases -- those which would not be dismissed or resolved before being brought to the Senate today -- five were politicized to a level that perverted the impeachment process itself.  These were the cases of Presidents Andrew Johnson and Bill Clinton, the charges against whom were almost wholly fabricated for political reasons; Justice Samuel Chase, who was impeached as part of Thomas Jefferson's court-packing scheme; Judge Harold Louderback, who was a victim of Fiorello LaGuardia's ambition; and Judge Charles Swayne, a bullying and abusive judge who was acquitted because of his sympathetic co-partisans.

If you're keeping track, that's a startling figure: nearly 42% of impeachment cases are politicized.  Any judge in America who politicized 42% of his cases would be summarily impeached himself.  As it stands, there's no question but that our impeachment mechanism is broken -- but not necessarily beyond repair.  Not to be outdone by Senators Schumer, Feinstein, Feingold, and Whitehouse, I've come up with a series of three recommendations for how to repair impeachment.  Here's the first one:

Recommendation #1: Federal officials convicted of federal crimes while serving in a federal capacity should be automatically removed from their posts, without the necessity of impeachment.

It's just that simple.  No one should be allowed to sit on the federal bench while serving time behind bars for breaking federal law.  Impeachment shouldn't even enter into the equation; the Senate should not have to waste its time on such malefactors.

Enacting Recommendation #1 would have the effect of obviating the necessity for two of the historical impeachment cases: the pro forma impeachments of Harry Claiborne and Walter Nixon.  In addition, a third man would likely never have been impeached: West Hughes Humphreys, the Confederate judge who tried to retain his Union commission while serving in a Confederate state.  Had a federal conviction been grounds enough to remove him automatically from the bench, Humphreys could simply have been indicted for treason, convicted in absentia by the Supreme Court, and tossed out of the federal judiciary.

So that's one problem addressed.  My next recommendation is aimed at another issue, that of the precise definition of what constitutes "high crimes and misdemeanors."  As you'll see, it's pretty simple as well:

Recommendation #2: A guideline more precisely defining "high crimes and misdemeanors" should be adopted by both houses of Congress.

There are problems with this plan, of course.  Any law that purported to define "high crimes and misdemeanors" would have a high probability of being unconstitutional, falling either more narrowly or more broadly than the Framers' intent.  However, I'm not looking for an impeachment Bible or a foolproof law; rather, I'd like to see Congress commission from the Congressional Research Service a legal and historical report on the definition of these terms (perhaps building on Charles Doyle's 1998 report Impeachment Grounds: A Collection of Selected Materials), and then see Congress (or maybe even just the Senate and House Judiciary Committees) hammer out a mutually acceptable guideline for impeachment grounds.  This should be done now, when there's time to perfect the rule, rather than haphazardly in the middle of an impeachment trial, as has been done time and time again -- most notably in the James Peck, Harold Louderback, Halsted Ritter, and Bill Clinton cases.

Both these recommendations would be useful in clarifying and streamlining the impeachment process.  But neither truly gets at the most serious problem with impeachment -- its susceptibility to politicization.  While it's true that only one of the five politicized impeachments actually resulted in an incorrect verdict (Charles Swayne's case), two others came terrifyingly close: Andrew Johnson, who remained in office by only one vote, and Harold Louderback, who survived by several.  Meanwhile, the Senate was forced to waste its valuable time on trying individuals who had committed no crimes and who should have been left alone.  Finally, and perhaps most importantly of all, what about those individuals -- Albert Fall, Caspar Weinberger, and others -- who were guilty of high crimes and misdemeanors but were never even brought up on impeachment charges because they were protected by political forces on Capitol Hill?  Surely there must be some way to make sure such individuals are routinely impeached whether or not the party in power supports them politically.

This problem was supposed to be solved by the independent counsel statute, a law passed during the Watergate era to provide for investigation of possible impeachable offenses by a nonpartisan prosecutor.  Unfortunately, it never truly worked properly.  In the first place, independent counsels could be fired by the President, an unfortunate flaw discovered by first independent counsel, Archibald Cox, when he ordered Richard Nixon to release the incriminating White House tapes.  Rather than complying, Nixon simply sacked Cox along with any cabinet member who objected in the "Saturday Night Massacre."  On the other hand, an overly political independent counsel could essentially go witch-hunting through the Executive Branch with impunity, as we learned when Ken Starr burned over $40 million pursuing a sex scandal and a real estate deal that Bill Clinton had actually had nothing to do with.

In 1999, with the full support of a somewhat repentant Starr, the independent counsel statute was repealed by Congress -- opening the door to the abuses of the Bush Presidency, which could not be investigated so long as Democrats were in the minority in both houses of Congress.  What's worse -- Ken Starr rampaging around the White House on a wild goose chase, or George Bush trampling our civil liberties with impunity?  It's a hard choice, and luckily we don't need to make it; there's a much better system for investigating potentially impeachable offenses, which I outline in my third, and by far the most important, recommendation:

Recommendation #3: A Federal Investigative Commission should be established with the power to investigate abuses of federal power and to propose impeachment to the House Judiciary Committee.

Rather than let the Justice Department appoint a single independent counsel whose partisan loyalties will determine the direction of the investigation, we should have a five-member nonpartisan panel ready at all times to take on these fact-finding missions.  The members should be chosen in a similar manner to those on the Arizona Independent Redistricting Commission: one member each is selected by the Majority and Minority Leaders (or the Speaker) of both houses of Congress; the fifth member (chair of the Commission), who must be a registered Independent, is chosen by the first four out of a list of twenty-five names submitted by the President.  The members must have been out of political office for at least three years before serving, and they should be appointed for a single, nonrenewable four-year term, staggered so that the House and Senate commissioners are chosen in alternate election cycles and the Presidential commissioner is chosen every two years.

This carefully structured and chosen Commission should then be given a moderately-sized permanent budget and directed to investigate any potentially impeachable offense by any federal officeholder or appointee.  Any member of Congress could request an investigation of a specific official on a specific subject.  The Commission would do its work quickly and neatly, present its findings in a report to the House Judiciary Committee, and have done with it.


As its history shows, impeachment, as it currently stands, is fatally flawed: overly partisan, excessively unclear, and unnecessarily time-consuming.  The three recommendations outlined above should, if adopted, work to alleviate these problems and turn impeachment into a slick, airtight system.  But if this situation remains unchanged, not only George W. Bush but other future malefactors of great power will be able to continue trampling on the Constitution with impunity.  Hopefully, the new Congress will see its way toward fixing the problems with impeachment in the near future, turning the Founders' as yet unrealized intent into achieved reality.

< The Failed History of Impeachment, Part II: When Impeachment Doesn't Work | Mueller's un-barking dog. >
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    Thanks for these (none / 0) (#1)
    by janinsanfran on Fri Aug 17, 2007 at 12:17:23 PM EST
    Was out of the country when they went up, but glad I found them.