Читать книгу Faithless Execution - Andrew C McCarthy - Страница 9
Оглавление“Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?”
These epigrammatic questions were posed by George Mason at the Philadelphia convention in 1787. They elucidate the Framers’ rationale for including in the Constitution a procedure for the impeachment and removal of a president.1
Few matters at the convention addled the delegates as much as the dangerous potential that the president of the United States—the powerful new position they were creating, the single official in whom they decided to vest the entirety of federal executive power—could become a king. The purpose of the Constitution was to safeguard liberty, not sow seeds for the very tyranny from which the American colonies had liberated themselves. Much of the convention, therefore, was dedicated to foreclosing that possibility.
First, the president would have to face election every four years. He would have immense authorities as the chief executive, but they would be checked in every important particular. For example, the president would be commander in chief, but Congress would retain the power to declare war and hold both the purse and significant powers over the armed forces. The president could make treaties and broadly conduct foreign affairs, but international agreements could not amend the Constitution (there being a separate process for that), treaties could not take effect unless approved by a Senate supermajority, and Congress was empowered to regulate foreign commerce. The president would appoint major government officials, but they could not take office without Senate approval.
While the Framers took care to set limits on executive powers, they also sought to ensure accountability by vesting those awesome powers in a unitary executive rather than a committee or a minister advised by a privy council.2 Ultimately responsible for all executive conduct and unable to deflect blame for wrongdoing, a single president would be amenable “to censure and to punishment,” Alexander Hamilton argued.3 The future Supreme Court justice James Iredell likewise observed that a president would be “personally responsible for any abuse of the great trust reposed in him.”4
For the unitary executive to be truly accountable, the Framers provided a mechanism to hold him to account. It would be “indispensible,” as James Madison put it, for Congress to have the power to impeach and remove the president in order to protect the nation against “the incapacity, negligence or perfidy of the chief Magistrate.” At the Commonwealth of Pennsylvania’s later debate over ratification of the proposed Constitution, James Wilson explained that the imperative of a removal power stemmed from both the concentration of executive authority in one public official and the principle that no man was above the law:
The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. . . . Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege, is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.5
Support for the impeachment remedy was overwhelming, though not unanimous. Gouverneur Morris and Charles Pinckney, for example, worried that impeachment proceedings might interfere with the president’s effective performance of his duties. Moreover, because chief executives would always have subordinates in the commission of any crime, they thought it sufficient that these “coadjutors” could be punished during the presidential term. Morris also offered what may be the ultimate argument for the political rather than legal essence of the matter: If a president were reelected, he opined, that would be sufficient proof that he should not be impeached.
Quite rightly, the other delegates were not moved by these qualms. After all, a president who was corrupt in the execution of his duties would spare no corrupt efforts to get himself reelected, especially if winning would immunize him from impeachment. His perfidy might not be discovered until after reelection was secured. These all too real possibilities, Mason pointed out, “furnished a peculiar reason in favor of impeachments whilst [the president was] in office.” Plus, the law regarded principals as responsible and thus punishable for the wrongs of their coadjutors; manifestly, this should no less be so when it came to the president—the principal capable of doing the greatest harm to the republic. It was, unsurprisingly, Benjamin Franklin who offered the convention’s most bracing point in favor of impeachment: Historically, when no impeachment remedy was available to a society, “recourse was had to assassination” in cases where “the chief magistrate had rendered himself obnoxious”—an intolerable outcome that not only “deprived [him] of his life but of the opportunity of vindicating his character.”
Ever concerned about the balance of powers among the branches that is the Constitution’s genius, the Framers did worry that granting impeachment authority to Congress could give the legislature too much power over the executive. Any governmental power can be abused, and impeachment is no exception. But though this danger could not be discounted, it would be mitigated by the unlikelihood that a large bicameral legislature drawn from different states with divergent interests—as opposed to a single chief executive—could be broadly corrupted. Moreover, the high hurdle of a two-thirds supermajority needed for conviction in the Senate would guard against wrongful removal.6
History attests to the Framers’ wisdom in this regard. In over two and a quarter centuries of constitutional governance, articles of impeachment have been formally voted by the full House of Representatives against only two American presidents, Andrew Johnson and Bill Clinton. In each case, there were insufficient votes in the Senate to convict and remove the incumbent from office. A third president, Richard Nixon, would surely have been impeached and removed had he, like Johnson and Clinton, chosen to fight to the bitter end.7
The convention delegates concurred in the principles that the United States is a nation of laws not men and that the potential for abuse of the presidency’s awesome powers required making provision for removal of an unfit incumbent. This consensus, however, did not immediately translate into agreement on an impeachment standard. It was assumed from the first that a president would be removable for “malpractice or neglect of duty.” Yet, consistent with the concern that the executive not become too beholden to Congress, some delegates suggested a narrower and more objective standard that stressed the gravity of impeachment: The president would be removable only for treason or bribery. But this was clearly insufficient, failing to account for an array of corrupt and incompetent actions not necessarily related to either cupidity or treachery.
Such condemnable conduct was not merely foreseeable in the abstract. The Framers had a concrete, contemporaneous example: the sensational impeachment trial in Parliament of Warren Hastings, Britain’s governor-general in India. The primary proponent of Hastings’s impeachment was Edmund Burke, the renowned Whig parliamentarian, political philosopher, and supporter of the American Revolution. Burke extensively charged Hastings with “high crimes and misdemeanors,” the ancient British standard for removing malfeasant public officials. While some of Hastings’s offenses involved bribery, most related to extortion, heavy-handed corruption, trumped-up prosecutions (resulting in death and other severe punishments), the allegedly reckless conduct of warfare, and what we would today call “human rights” abuses against the indigenous people of England’s Indian domains. Far from treasonous, Hastings’s actions were intended to preserve and strengthen the British Empire’s position (even if, to Burke’s mind, their wanton immorality and disregard for Indian sensibilities arguably weakened it).8
The impeachment inquiry on Hastings’s governance formally began in 1786, and articles against him in the House of Commons were voted the next year, only a few weeks before the Philadelphia convention. Mason noted the spectacle in positing that the executive would be inadequately restrained if impeachment were limited to treason and bribery: “Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason[.]” After the delegates finally agreed to add “high crimes and misdemeanors” to treason and bribery as grounds for impeachment, Hamilton explained that Great Britain provided “the model from which [impeachment] has been borrowed.”9
“High crimes and misdemeanors” was not Mason’s first choice. He argued for “maladministration,” the term used in the impeachment provisions of several state constitutions. Blackstone’s Commentaries on the Laws of England, a magisterial legal treatise that profoundly influenced the Framers, described “maladministration of such high officers, as are in public trust and employment” as the “first and principal” of the “high misdemeanors”—offenses “against the king and government” that were punished by “parliamentary impeachment.”10 “Maladministration” was indeed close to the concept the delegates had in mind, but Madison had reservations about its vagueness. A promiscuous construction of the term could devolve into legislative dominance over the executive, going well beyond the objective of empowering Congress to deal decisively with a president who had demonstrated himself truly unfit. Mason responded to Madison’s concerns by amending his proposal to “high crimes and misdemeanors,” which had the benefit of being a venerable term of art.11 This standard was adopted by the convention and enshrined in the Constitution.12
All public officials are certain to err at times, and chief executives, who make the most consequential decisions, can err egregiously. Nor will it be uncommon for presidents to abuse their powers to a limited extent, whether because of venal character or because it is often the president’s burden to navigate between Scylla and Charybdis. Comparatively few presidents, though, will prove dangerously unfit for high office. Thus, impeachment was designed to be neither over- nor under-inclusive. “High crimes and misdemeanors,” complementing treason and bribery, was an apt resolution. It captures severe derelictions of duty that could fatally compromise our constitutional order, but eschews impeachments based on trifling irregularities.
As Burke made clear, “high crimes and misdemeanors” had been used by the British Parliament for centuries. The Constitutional Rights Foundation elaborates:
Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.13
“High crimes and misdemeanors” is a concept rooted not in statutory offenses fit for criminal court proceedings, but in damage done to the societal order by persons in whom great public trust has been reposed. Hamilton described impeachable offenses as those
which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. 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.14 [Emphasis in original.]
Mason fixed on betrayal of the president’s fiduciary duty and oath of allegiance to our system of government, saying that “attempts to subvert the Constitution” would be chief among the “many great and dangerous offences” beyond treason and bribery for which removal of the president would be warranted. It is noteworthy for our purposes that the Framers regarded the mere attempt to subvert the Constitution, whether successful or not, as a sufficiently heinous breach of trust to warrant removal by impeachment.
What distinguishes impeachment from judicial proceedings and technical legal processes is its political aspect. As the Constitution Society’s Jon Roland points out, it was immaterial whether the offenses cited in articles of impeachment “were prohibited by statutes”; what mattered were “the obligations of the offender. . . . The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”15
This explanation echoes Joseph Story’s elaboration on the “political character” of impeachment in his seminal 1833 treatise, Commentaries on the Constitution. Justice Story noted that while “crimes of a strictly legal character” would be included, the removal power
has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.16
An essential attribute of criminal laws is definitiveness. Our jurisprudence mandates that the laws put a person of ordinary intelligence on notice about what is prohibited. Otherwise, law enforcement becomes capricious and tyrannical. “High crimes and misdemeanors,” by contrast, is a concept neither conceived for nor applicable to quotidian law enforcement. It is redolent of oath, honor, and fiduciary obligation. These notions, conveying positive duties, are more demanding of the public officials than the clear prohibitions of the criminal law. They are also more abstract: It is not as easy to divine what duty calls for in the various situations a public official confronts as it is to say whether a given private citizen’s course of conduct satisfies the essential elements of a penal statute.
This distinction makes impeachment rare—a process reserved for grave public wrongs. It does not make impeachment arbitrary, as implied by the deservedly maligned claim that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” It is one of history’s curiosities that this assertion was made in 1970 by Congressman Gerald R. Ford during his failed effort to impeach William O. Douglas, the irascible liberal Supreme Court justice. Ford would replace Spiro Agnew as vice president before the end of 1973, and Richard Nixon as president eight months later—Agnew and Nixon both having resigned to avoid impeachment and removal.17
It is odd that politicians, law professors, and plaintiff’s lawyers have been known to complain that “high crimes and misdemeanors” is too amorphous a notion to apply to political wrongs. They rarely think twice about dressing down, condemning, or filing suit against a corporate CEO for breaches of fiduciary obligations. Do they really think a president should be less accountable than a CEO? In truth, the president, the commander in chief, is akin to a soldier in that his duties make him punishable for actions that would not be offenses if committed by a civilian: such things as abuse of authority, dereliction of duty, moral turpitude, conduct unbecoming, and the violation of an oath.18
The delegates to the Constitutional Convention were adamant that impeachment not reach to errors of judgment, or what Edmund Randolph described as “a willful mistake of the heart, or an involuntary fault of the head.” On the other hand, betrayals of the constitutional order, dishonesty in the executive’s dealing with Congress, and concealment of dealings with foreign powers that could be injurious to the rights of the people were among the most grievous high crimes and misdemeanors in the Framers’ estimation. The concept also embraced the principle that “the most powerful magistrates should be amenable to the law,” as James Wilson put it in his “Lectures on Law,” delivered shortly after the Constitution was adopted.
For example, in response to a hypothetical in which a president, to ram a treaty through to ratification, brought together friendly senators from only a few of the states so as to rig the Constitution’s two-thirds approval process, Madison remarked: “Were the president to commit any thing so atrocious . . . he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.” Iredell made clear that the president “must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives.” It would be untenable to abide a president’s fraudulently inducing senators “to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them.”
Finally, the Framers stressed that the impeachment remedy was a vital congressional check on the executive branch as a whole, not just on the president’s personal compliance with constitutional norms. The chief executive, Madison asserted, would be wholly “responsible for [the] conduct” of executive branch officials. Therefore, it would “subject [the president] to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”
What would the Framers have made of a U.S. attorney general who practices racial discrimination in executing the civil rights laws, politicizes law enforcement, and urges state attorneys general to ignore the laws they are sworn to defend? Of a Homeland Security secretary who obstructs sovereign states trying to defend themselves from illegal immigration? Of a secretary of state who collaborates with foreign governments to diminish American constitutional rights and recklessly neglects to provide adequate security for American officials, who consequently get killed serving in the perilous foreign posts to which she has irresponsibly dispatched them? What would the Framers have made of a Health and Human Services secretary (perhaps I should end the question right there) who energetically violates and rewrites congressional statutes in the simultaneously fraudulent and incompetent implementation of a government plan to seize control of the private economy’s healthcare sector? What would they make of the habit the president’s “coadjutors” have made of misleading and stonewalling Congress?
They would have made a case for impeaching and removing the president.
