Impeachment: a citizen’s guide
by Cass R. Sunstein (Harvard University Press, €7)
Felix M. Larkin
With speculation rife about the possibility of impeaching President Trump, this little book is indeed timely.
In it, Prof. Sunstein outlines what he calls “the majesty and the mystery of impeachment in the US Constitution” – and he dispels much misunderstanding of the process. While he protests that he is “not going to speak of any current political figure”, the shadow of Donald Trump falls on almost every page.
The first point to note is that impeachment is not a conviction. It is more like an indictment. After the House of Representatives has voted to impeach a president – in effect, to lay charges against him – he is then tried by the Senate. Only if the Senate decides to convict him by a two-thirds majority is he removed from office. That, as Sunstein notes, is a very high threshold.
What can a President be impeached for? The Constitution says “treason, bribery and other high crimes and misdemeanors”, but “crimes and misdemeanors” is open to wide interpretation.
Accordingly, in relation to two of the three serious impeachment efforts against US Presidents, Sunstein concludes that the process “was an overwhelmingly partisan affair…sought and engineered by people who were determined to bring down a president they despised”. He believes this was contrary to the spirit of the Constitution.
He argues that impeachment was intended to be a mechanism to counteract “egregious abuse of presidential powers”, whether or not that involved criminal activity. It carries no criminal sanction, simply removal from office. It is designed as a bulwark against the tyrannical instincts of potentially very powerful presidents, an integral part of the framework of checks and balances that defines the US Constitution.
By this standard, Andrew Johnson – impeached in 1868 for dismissing a Cabinet officer, but acquitted by the Senate – was wrongly impeached, since it is within the president’s discretion to sack Cabinet officers.
Likewise, Bill Clinton was wrongly impeached in 1998 for perjury and obstruction of justice, since these crimes had nothing to do with the exercise of his presidential powers; he too was acquitted by the Senate.
In contrast, the effort to impeach Richard Nixon is seen by Sunstein as entirely in conformity with the Constitution because, by interfering with and attempting to frustrate the proper investigation of the Watergate scandal by the relevant government agencies, he had abused the powers of the presidency. Faced with certain impeachment by the House and probable conviction by the Senate, Nixon resigned.
As to whether Trump will be impeached, it seems to me unlikely that any attempt to remove him from office could succeed unless his “crimes and misdemeanors” are eventually revealed as so heinous that even his own party turns against him.
A future Democratic majority in the House of Representatives might well impeach him on purely partisan grounds, but a two-thirds majority to convict in the Senate is impossible unless the Republicans are shamed into abandoning him.
The message of Sunstein’s book is, however, that to impeach Trump for anything less than a serious abuse of his presidential powers would – as in the cases of Andrew Johnson and Bill Clinton – be an abuse of the impeachment powers granted to the House of Representatives under the US Constitution.
Dislike of the president and disapproval of his policies are insufficient grounds for impeachment.