Law & the Courts

Impeach Clinton to Bar Her from Holding Federal Office. It’s Constitutional.

(Reuters photo: Shannon Stapleton)

For months, I have been arguing that Hillary Clinton should be impeached. It is all well and good to prosecute a former government official for any crimes she has committed. Indeed, the Constitution expressly provides for criminal prosecution in addition to impeachment. Nevertheless, for the Framers — and, if we had common sense, for us — the imperative was to deprive a corrupt person of any further opportunity to abuse government power. Whether the official should also be convicted and sent to prison was not unimportant but, in the greater scheme of things, decidedly secondary.

Interestingly, the main pushback I received upon positing this argument was not that Mrs. Clinton is undeserving of impeachment. That, of course, is a measure of the seriousness of her high crimes and misdemeanors: the e-mail scandal; the reckless mishandling of classified information that has surely exposed our national-defense secrets to hostile powers; the mass destruction of thousands of government records after Congress asked for them; the obstruction of government investigations; the serial lies to Congress and the public; the shocking failure to provide security for Americans stationed in Benghazi and the failure to attempt to rescue them during a terrorist siege; the lies to the American people and to the families of murdered American officials about the cause of the attack; the trumping up of a prosecution against the video producer scapegoated for the Benghazi attack; the Clinton Foundation corruption involving the sale of influence for donations, the favors done for shady benefactors at the expense of national security, and the use of the State Department as an arm of the Clinton pay-to-play enterprise.

No, the main objection to impeachment is the claim that, because the former secretary of state does not currently hold public office, there is nothing from which to remove her. Hence, as a non-incumbent who merely seeks the nation’s highest office — after proving herself manifestly unfit in a subordinate office — she is said to be immune from impeachment. How could she be impeached from the presidency, the question is posed, if she is not president? How could she be removed from an office she does not hold based on offenses not committed while wielding presidential power?

These questions and the non-incumbency theory behind them fundamentally misconstrue the constitutional remedy of impeachment, which is not limited to removal from power but includes disqualification from future office. Moreover, their premise is wrong: The proceeding against Clinton would not be a presidential impeachment; it would be an impeachment based on her abuses of power as secretary of state, which would have the constitutional effect of disqualifying her for the presidency.

The Constitution does not limit impeachment to incumbent officials. Article I endows the House of Representatives with the “sole Power of Impeachment” — i.e., the power to file articles of impeachment. It further empowers the Senate with “the sole Power to try all Impeachments.” Significantly, in prescribing the standard for conviction in the Senate, Article I, Section 3 states that “no Person shall be convicted without the Concurrence of two-thirds of the Members present” (emphasis added).

Note carefully: The Constitution does not say the impeached person must be a current officeholder. As we shall see, that makes perfect sense: The point of impeachment is to deny power to any person — not necessarily an incumbent official — whose high crimes and misdemeanors have demonstrated unfitness for a high public trust.

The constitutional standard for impeachment also elucidates that incumbency is not necessary. The standard, prescribed by Article II, Section 4, is the commission of “Treason, Bribery, or other high crimes and misdemeanors.” Obviously, one need not be in office to commit treason or bribery; but if one has at any time committed these heinous offenses, one is unsuitable for public office. The same is true, by definition, of “high crimes and misdemeanors,” a term of art the Framers borrowed from the law of England.

High crimes and misdemeanors proceed from “the abuse or violation of some public trust,” as Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

The point of impeachment is to deny power to any person — not necessarily an incumbent official — whose high crimes and misdemeanors have demonstrated unfitness for a high public trust.

High crimes and misdemeanors, then, are chiefly violations of the public trust committed while a person is in office. There is, however, no requirement that the person be in office when articles of impeachment are filed.

That is clear not only from the text of the Constitution but also from the British model on which the Framers based impeachment. As I recount in Faithless Execution, their exemplar was Parliament’s impeachment of Warren Hastings, an effort led by Edmund Burke at the very time our Constitution was being written. It is thus highly relevant for our purposes that Hastings was not in office when he was impeached. He had already retired as governor-general of India. Although the accusations lodged by Burke stemmed from Hastings’s service in India, that service was over. Though he was eventually acquitted, the dual purpose of impeaching Hastings was to condemn his performance of his prior duties and to disqualify him from future public office.

That dual purpose, finally, is reflected in the sanctions for impeachment prescribed in the Constitution. As decreed in Article I, Section 3, Clause 7, a person convicted in an impeachment trial may not merely be removed from office; punishment also includes “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]” To be sure, if the person is an officeholder at the time of impeachment, she must be removed: Article II, Section 4 so provides. But if the person is not an incumbent, the impeachment and conviction stand as a condemnation of her performance while in office, and the sanction of disqualification ensures that she will never again have an opportunity to abuse government power.

The Constitution’s prescription of sanctions for impeachment is doubly pertinent to our consideration because it also states that an impeached former official remains subject to prosecution in the criminal courts. This underscores that the political remedy of impeachment and the legal remedy of criminal indictment are significantly different. A person vested with the high trust of public office is held to a higher standard of qualification. A dereliction of duty that demonstrates unfitness for office need not be an indictable crime. Whether that misconduct is also serious enough to warrant jail time is beside the point.

On the Friday of Labor Day weekend, the FBI released notes of its investigation of Clinton’s e-mail scandal, including a report of its interview with Clinton herself. They illustrate even more powerfully than any prior disclosures that she should have been indicted for criminal violations arising out of her reckless mishandling of classified information and mass destruction of government records. Nevertheless, the standard of fitness for public office is not whether one manages — with preferential treatment no one not named Clinton would have gotten — to avoid criminal prosecution. The standard is whether one is worthy of public trust.

Hillary Clinton, with a legacy void of accomplishment but rich in abuse of power, is more unworthy of public trust than anyone who has ever sought federal office. That, of course, is why the polls show that the public does not trust her. She should be impeached — both to reflect history’s judgment of her disgraceful tenure as secretary of state and to disqualify her from wielding the awesome powers of the presidency.

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