Where to Look for Guidance on Impeachment

(Bloomberg View) -- In all the talk these days about the Constitution’s impeachment provision, there is widespread confusion about the meaning of the document’s mysterious words making the president, the vice president and other high-level officials impeachable for “Treason, Bribery, or other high Crimes and Misdemeanors.”

If you want to know what impeachment is all about, it’s best to put contemporary issues to one side and start with a document that should unite each and every American: the Declaration of Independence.

The Declaration reads like Articles of Impeachment. It catalogs “injuries and usurpations” from the King of England. It complains that he “has refused his Assent to Laws, the most wholesome and necessary for the public good.”

It objects that he has failed to respect the independence of the judiciary, making judges “dependent on his Will alone.” It observes that he has obstructed “the Laws for the Naturalization of Foreigners” and refused to pass other laws “to encourage their migration hither.”

The authors of the Declaration opposed monarchs: "A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

Ratified on July 4, 1776, the Declaration was the culmination of decades of social and political thought in the colonies. Those decades saw the sudden collapse of monarchical thinking and the roaring triumph of republicanism, with its commitment to self-government and to the equal dignity of human beings.

David Ramsay, one of the nation’s first historians, marveled that in the late 18th century Americans were transformed “from subjects to citizens.” That was an “immense” difference, because citizens “possess sovereignty.”

Thomas Paine put it this way: “Our style and manner of thinking have undergone a revolution more extraordinary than the political revolution of a country. We see with other eyes; we hear with other ears; and think with other thoughts, than those we formerly used.”

Ratified in 1776, the Declaration provided the background for the Constitutional Convention, which was held in the summer of 1787. Fearing a return to monarchy, some delegates argued passionately against the creation of a strong presidency, deemed essential by Pennsylvania’s James Wilson and New York’s Alexander Hamilton.

North Carolina’s Hugh Williamson argued that the nation would end up with an “elective King.” To Pennsylvania‘s John Dickinson, a powerful presidency was “not consistent with a Republic.” Virginia’s Edmund Randolph went for the jugular, saying that it would be “the fetus of monarchy.”

The convention ultimately sided with Wilson and Hamilton, but only because of the availability of impeachment, which the delegates saw as an essential check on presidential authority. Virginia’s George Mason captured the prevailing sentiment: “No point is of more importance than that the right of impeachment should be continued.” He asked, “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”  

The delegates agreed that the answers had to be “no.” But on what grounds could a president be impeached?

A late draft of the Constitution was limited to treason and bribery. Again Mason intervened, complaining that those terms “will not reach many great and dangerous offenses.” After debate, he introduced the phrase “high crimes and misdemeanors” – a phrase that had a history in the colonies as well as England, and that connects the impeachment clause directly to the principles for which the Revolution had been fought.

Many people now think that a violation of the criminal law is a necessary condition for impeachment. Nothing could be further from the truth. Writing against the background of the Declaration, Alexander Hamilton explained in the Federalist Papers that the president can be impeached for “the abuse or violation of some public trust” – which need not take the form of a crime.

In the Virginia Ratifying Convention, James Madison stated that abuses of the pardon power would be a sufficient basis for impeachment, even though such abuses would hardly be crimes: “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.” Madison later added “the wanton removal of meritorious officers would subject” the president “to impeachment and removal from his own high trust.”

In Massachusetts, a defender of the proposed Constitution, with the pen name of Cassius, connected the impeachment power to the Revolution and the Declaration: “no office, however exalted, can protect the miscreant, who dares invade the liberties of his country, or countenance in his crimes the impious villain who sacrilegiously attempts to trample upon the rights of freemen.”

In view of this history, it is equally evident that some crimes do not qualify as impeachable offenses. The Constitution’s focus is on egregious misuses of official power. If a president shoplifts, jaywalks, punches someone or cheats on his taxes, he hasn’t committed a high crime and misdemeanor. Some crimes aren’t that, even if they are committed by the president himself.

Taken in its context, the phrase “high crimes and misdemeanors” turns out to be far less mysterious than it seems. Presidential blunders, presidential stupidity, presidential unpopularity, presidential losses in court, even presidential recklessness – none of that justifies an impeachment proceeding.

What is both necessary and sufficient is a serious abuse of presidential authority – a violation of the ideals for which the Declaration’s 56 signatories, back in 1776, pledged to one another “our Lives, our Fortunes, and our sacred Honor.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

To contact the author of this story: Cass R Sunstein at csunstein1@bloomberg.net.

For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

©2017 Bloomberg L.P.