Magazine | December 31, 2018, Issue

How Impeachment Works

President Clinton poses with Monica Lewinsky in a Nov. 17, 1995, photo. (RC/CM//REUTERS )
Lessons from the failed Republican effort to remove Bill Clinton from the presidency

Impeachment chatter is suddenly in vogue. It was strictly déclassé during the Obama years. To hear congressional Republicans tell it, the Clinton fiasco of the late Nineties proved both that the Constitution’s procedure for removing corrupt presidents is futile and that invoking it guarantees political carnage for the accusers.

Today’s Democrats, as the saying goes, never got the memo. Or perhaps they have known all along that their counterparts learned precisely the wrong lessons from President Bill Clinton’s impeachment. Now that the impeachment of Presi­dent Donald J. Trump is a realistic contingency, though, getting those lessons right is vital.

The problem with Clinton’s impeachment was not the impeachment process itself. It is difficult by design, as it must be for stability’s sake. But it is hardly obsolete. It did, after all, drive a president from office — Richard M. Nixon, who resigned on the cusp of impeachment — just 25 years before articles of impeachment were filed against Clinton.

No, the problems were twofold. First was the nature of the impeachable offenses. It is not the case, as is commonly assumed, that they were salacious, but that they were remote from the core duties of the presidency. Second was the mulish insistence on pursuing impeachment when the public was clearly opposed to it. An impeachment effort cannot succeed without the tireless building of a political case in favor of removal, a case that achieves a critical mass of public support before impeachment is sought.

Hindsight is always 20/20, of course. I was still a Justice Department prosecutor during most of Bill Clinton’s second term as president, not a journalist doing public commentary. But I favored his impeachment, just as most Republicans and conservatives did. It is easy to see now that the episode has had an enduring, poisonous effect on our politics. Still, 20 years later, with a Republican president in office, it seems a wee bit self-serving to pronounce, finally, that we were wrong.

In truth, I have not waited 20 years. Clinton’s impeachment was a focus of my 2014 book Faithless Execution. At the time, the backstretch of the Obama presidency, the political class and most of the public were not of a mind to ponder the Constitution’s ultimate remedy for presidential misconduct and overreach.

In a properly functioning republic, there would never be a bad time. When the Framers debated the Constitution, among their principal concerns were the awesome powers of the new executive office they were creating in Article II, that of the president of the United States. It would be “indispensable,” James Madison opined, to vest the power to remove the chief executive in Congress, which was conceived as the dominant, Article I branch, most accountable to the sovereign — the people. Some delegates believed the ballot box would be an adequate check. The consensus, however, was that an impeachment power was essential, and not merely for such obvious corruption as treason and bribery. The Framers adopted a term of art from British law, “high crimes and misdemeanors,” to address truly egregious instances of maladministration.

These offenses are not to be confused with statutory crimes and misdemeanors that Congress has enacted in the penal code, which are subject to prosecution in court. As recounted by the eminent legal scholar Cass Sunstein in Impeachment: A Citizen’s Guide (a recent, highly accessible treatment of the subject), prior to the Revolution, several of the colonies employed impeachment as a mechanism to fight prerogatives of the British crown that were increasingly regarded as illegitimate governance: In Massa­chusetts, for example, the chief justice was impeached for obeying a royal order. Sunstein observes that impeachment is thus a “sibling” to the Constitution’s prohibition on titles of nobility. Its in­clusion in our foundational law followed logically on the practice of state legislatures of reining in officials who abused their authority.

The Framers also had a ready British model. Even as delegates met in Philadelphia, the sensational impeachment trial of Warren Hastings, England’s governor-general in India, was under way. Led by Edmund Burke, Parliament charged Hastings with “high crimes and misdemeanors” for offenses that, besides bribery, included extortion, heavy-handed corruption, trumped-up prosecutions, the allegedly reckless conduct of warfare, and what we would today consider human-rights abuses against the indigenous people of England’s Indian domains.

This was the context of Alexander Hamilton’s explaining, in Federalist No. 65, that impeachable offenses are violations of a “POLITICAL” nature: abuses of the “public trust” that “proceed from the misconduct of public men” and do injury “immediately to the society itself.” They are more consonant with military than with criminal justice, particularly such offenses as dereliction of duty or conduct unbecoming. Indeed, while many serious offenses of the criminal code could amount to high crimes and misdemeanors, other such offenses might be too far afield from an official’s duties to qualify; and still others might be too trivial. Unlike penal crimes, impeachable offenses need not be proved beyond a reasonable doubt. Moreover, because impeachment involves stripping political authority rather than punishing criminality, congressional impeachment proceedings provide no double-jeopardy protection against later criminal prosecution in court. Recall that Nixon was controversially pardoned by his successor, President Gerald R. Ford.

While President Trump’s first two years have been a wild ride, a “you ain’t seen nothin’ yet” chill is now blowing through winter in Washington. The next two years will be tumultuous, like nothing we’ve seen since the Clinton-impeachment drama of 1998–99.

Democrats are about to take control of the House of Representatives. Many of them salivate in anticipation of branding Trump an impeached president, just as history ignominiously brands Clinton. As in Clinton’s case, it makes no difference that removal by the Senate appears unattainable. House Democrats are not even waiting to see what may come from Special Counsel Robert Mueller’s probe into hyped but thus far unproven Trump-campaign “collusion” with Russia. Incoming Judiciary Committee chairman Jerrold Nadler (D., N.Y.) has already announced his intention to explore whether impeachable offenses can be teased out of hush-money payments to two women who claim to have had extramarital affairs with Trump. This, this after Nadler and his fellow Democrats spent the late Nineties upbraiding Republican prudes for turning “just lies about sex” into high crimes and misdemeanors.

Trump’s potential impeachment is a front-burner issue. What can the Clinton proceedings tell us about how to navigate it?

The first lesson is that the Constitution’s process makes paramount the building of a political case for impeachment. Again, impeachment is political in nature. “High crimes and misdemeanors” is a legal standard, but the question whether to impeach is a political calculation, not a legal mandate triggered by impeachable conduct. In 1970, just a few years before the Nixon-impeachment episode ironically landed him in the Oval Office, Gerald Ford — then the House minority leader enmeshed in a failed attempt to impeach the irascible Supreme Court justice William O. Douglas — declared that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Cynical? Perhaps . . . but, as a practical matter, it is true.

The question is when the House ought to exercise its broad, judicially unreviewable discretion. The answer, contrary to the received wisdom of the post-Clinton era GOP, is not “Never.” Yet any consideration of impeachment must be informed by the Constitution’s structure, which is designed to make the expulsion of a president very difficult.

When the word “impeachment” is uttered, we tend to think of it as meaning removal. This is a sensible response. The impeachment of a president, a wrenching process for our society, should never be undertaken merely to scandalize. If removal for righteous reasons is not the objective, impeachment proceedings should not be initiated. Nevertheless, it is a bifurcated process: The House is authorized to file charges, known as “articles of impeachment,” by a simple-majority vote; a trial then takes place in the Senate, where a supermajority two-thirds vote of conviction is necessary to remove the president from office.

The steep Senate hurdle weighs on the House. The Framers sought to ensure that impeachment would not be pursued for trivial or partisan reasons. The supermajority standard necessarily means that no president will be removed in the absence of misconduct so egregious that a national consensus for removal forms, one that cuts across party and ideological lines. And six-year terms insulate senators from the heat felt by House members, who face voters every other year. Consequently, the party that controls the House must be wary. A bare, rabidly partisan majority there has the power to file frivolous articles of impeachment against an opposition-party president; but the case would go nowhere in the Senate, the public would likely side with and thereby embolden the president, and the impeachment agitators (along with their party) would be lashed in future elections.

On the other hand, the high unlikelihood of Senate conviction also means that worthy impeachment efforts may never get off the ground in the House — not just against an imperious president, but against other executive and judicial officers who abuse their power. This makes for corrupted government; impeachment is indispensable in our system, as Madison believed, not because it should be used often but because good governance depends on its being a credible threat. But to make it one, and to carry it out on occasion, demands the assiduous work of public persuasion.

President Clinton was acquitted by the Senate on two articles of impeachment lodged by the Republican-controlled House. Though the Senate, too, was firmly in Republican hands, the outcome was never in doubt. To oust Clinton, at least a dozen Democrats would have had to vote to convict — and that was assuming conviction votes from all 55 Republicans. It was well known before the trial that Democrats were unanimously opposed while Republicans were not of one mind.

The Senate acquittal occurred on February 13, 1999, at the end of a years-long investigative odyssey. Most Americans were predictably repulsed upon the first revelations of Clinton’s misconduct: the Oval Office sexual trysts with Monica Lewinsky, a 22-year-old White House intern; the lies told to cover up the affair, in the context of both a judicial proceeding (the sexual-harassment lawsuit brought against Clinton by yet another woman, Paula Jones) and, infamously, an address to the nation (“I did not have sexual relations with that woman, Miss Lewinsky . . .”). By the time of the Senate impeachment trial, Clinton’s misconduct was undeniable, Independent Counsel Kenneth Starr having issued his meticulous, scathing report.

Paradoxically, though, Clinton appeared to become more popular as the impeachment process ran its course. His allies unremittingly attacked Starr, and the public assimilated the theme Democrats hammered home day after day: Clinton’s priapic proclivities had nothing to do with his performance as president.

From this rejection, Republicans deduced that the I-word must never again be uttered. It was a facile deduction. Remember, the presumption in the system is against impeachment — it takes a two-thirds’ majority to expel, not to retain. Consequently, making the impeachment case necessitates much more effort than fighting it off. If the House is not up to the effort — if the path of least resistance seems more congenial than Resist! — it becomes easy to rationalize that the Constitution’s procedure is just outmoded and unworkable; that to trigger it would be an invitation to political suicide: the gratuitous creation of a “constitutional crisis” for which Republicans would get the Starr treatment from the media-Democratic conglomerate, followed inevitably by a drubbing at the ballot box.

This spin on the Clinton impeachment is revisionist history. To know that it is obviously wrong, one need only behold reaction to the Trump presidency from the left and among an immovably anti-Trump faction on the right. The I-word, far from verboten, is now on the tip of Washington’s tongue. Impeachment advocacy is not suicide. It has real political currency. Odds are that House Democrats will go for it. Depending on how it unfolds, voters may well reward them for it.

Legend notwithstanding, it is simply not true that looming House impeachment proceedings caused Republicans serious electoral setbacks in the 1998 midterms. To be sure, the GOP underperformed the historical trend for the party out of power in the sixth year of a two-term presidency. But it was far from a disaster: Republicans maintained control of both congressional chambers, with no change in the partisan division of the Senate and just five seats lost in the House.

What we can safely say about the Clinton impeachment is that, unlike the Nixon episode in 1974, it was a strict test of partisan loyalty. How were Clinton’s “war room” and the progressive base able to pull that off? After all, Nixon enjoyed far more public support by comparison. He faced impeachment less than two years after winning reelection in one of American history’s biggest landslides. Clinton, by contrast, was never especially popular: Elected in 1992 with just a 43 percent plurality (thank you, Ross Perot), he failed to achieve a majority when reelected in 1996 — drawing 49 percent against Bob Dole, a weak Republican candidate.

To be sure, much of the difference involves the left-leaning press, which clamored for Nixon’s ouster while shielding Clinton. Mainstream-media hostility is simply a fact of life, and Republicans must always factor it in (although it is less of an issue today, given the vibrant alternative media).

More basically, though, Clinton was able to make his defense a summons to party loyalty and Nixon was not. That is because Clinton’s offenses were simply not perceived as a threat to our constitutional order, or to our security and prosperity. Before Nixon was impeached, his accusers sedulously argued that his misconduct did amount to such a threat: covering up a burglary and attempting to spy on his political opposition; endeavoring to corrupt the FBI, CIA, and IRS in the effort; and obstructing congressional investigators. Clinton’s detractors were content to stand on his immorality and lack of honor when, sadly, cultural attitudes about these matters were coarsening.

In the end, Clinton’s malfeasance was sufficiently remote from his principal duties — executing the laws, protecting national security, conducting foreign relations, stewarding economic and industrial policy — that there remains debate about whether it met the standard of high crimes and misdemeanors and whether censure (rather than impeachment) would have been an adequate rebuke. With their withering attack on Independent Counsel Starr, and their trivializing of Clinton’s “private” “indiscretions,” Clinton apologists marginalized the question of his guilt or innocence. The issue became whether Democrats would abide a Republican effort to undo the 1996 election. The resulting partisan wedge — “chasm” is probably a better word — continues to define our politics.

It is impossible to craft guidelines for when presidential impeachments are warranted. Our empirical data are sparse, with only Clinton, Nixon, and Andrew Johnson (barely acquitted by the Senate) having been subjected to impeachment proceedings. More to the point, an impeachment inquiry is very fact-specific, turning on how grievous a president’s misconduct is, how effective the president’s opposition is, and how the media cover the controversy.

The Republicans’ post-Clinton assumption that impeachment efforts are politically ruinous is wrong. After 1998, Republicans continued to win elections until 2006. Rather, the Clinton impeachment teaches that the public has a healthy resistance to impeachment but will abide a failed impeachment sought in good faith. It further instructs that the Constitution’s high impeachment hurdles cannot be surmounted without an indefatigable political campaign urging the president’s ouster. To be credible, that campaign must be based on clear misconduct that implicates core presidential duties and imperils our constitutional order. To seek impeachment in the absence of such gross maladministration, or to seek it in the teeth of public opposition, is to guarantee failure.

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