Charles Black’s Impeachment: A Handbook, first published in 1974 at the height of the Watergate crisis, has become the authoritative guide on the subject of presidential impeachment. In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in the Essay that follows.

Because Professor Black’s original text had no accompanying notes, the publisher decided to continue this format in the new print edition. In this re-publication, the Journal worked with Bobbitt to present his chapters with extensive notes in order to provide a resource for students, scholars, lawyers, journalists, and public officials.

Preface To The New Edition

It is said that in the United States, a “new & improved” label will always increase sales. This is doubtless a testament to our irrepressible optimism.

Since the publication of Impeachment: A Handbook, by Charles L. Black, Jr., in 1974, it has become the standard work. Lawfare called it “the most important book ever written on presidential impeachment.” Its sales peak whenever there is impeachment talk in the Congress, and staffers can be seen like schoolchildren carrying their vade mecums.

As the 2018 midterm elections approached, there was some anxiety—and no doubt, in some quarters, hope—that impeachment might again be undertaken. As it happened, I was teaching the Handbook in my Legal Methods class at Columbia as an exquisite demonstration of the forms of constitutional argument. My students complained that the book had been published before any definitive action was taken to remove President Nixon, and they chafed to know how Black would have dealt with the significant questions of the hour—both then and now. Was the hacking of the Democratic campaign chairman’s emails in 2016 like the burglary of the Democratic campaign chairman’s correspondence at the Watergate complex in 1972? Was the Republican campaign’s contacts with Russian diplomats in 2016 like the Nixon campaign’s contacts with South Vietnamese diplomats in 1968? Do the House Judiciary Committee’s charges against Nixon set a precedent defining an “impeachable offense” arising from improper use of the Justice Department, even though the President resigned before the House could vote on this charge? Was the Clinton impeachment charge for the obstruction of justice a precedent because it was adopted by the House—or not, because the Senate did not convict on this charge? And what about issues Black didn’t address, like the relation between the Twenty-Fifth Amendment and impeachment, or the role of the Emoluments Clause as a possible basis for impeachment? And what about the president’s pardon power? Are there circumstances in which the issuance of a pardon—or the promise of one—can provide a ground for impeachment?

To all of these questions, I gave the same answer: my students had all they needed in Black’s book. It wouldn’t tell them what to think of these or any other problems, even in the Nixon case, which was unfolding as the book was written. The Handbook would instruct them how to think. It laid out clearly and concisely the methods by which a legal answer could be derived from the text, history, structure, doctrine, practicality, and ethos of the Constitution, and it showed rather elegantly how to apply these six fundamental methods.

Still, I took the students’ point. Black’s chapter “Application to Particular Problems” cried out for the application of his methods to the problems raised by the class. And there were important precedents—cases of attempted and partly successful impeachments that created or affirmed doctrine—that had occurred since the book’s publication.

Moreover, while Black’s masterpiece remained the standard reference work, new books on presidential impeachment were appearing by writers I liked and respected that, because of their intrinsic merit and also because of the consumer bias for the “new & improved,” might eclipse the Handbook in the marketplace. That would be a great shame, not because there is anything wrong with these new books but because outside the esoteric topic of impeachment, Black’s book was a key exposition of how we go about resolving constitutional questions in the absence of a Supreme Court opinion. (This remains, I hate to say, a continuing problem for the field. When asked whether a president could pardon himself, a prominent law professor replied, “There really is no answer to this question since it has never arisen.”) Allowing Black’s book to gather dust on the library shelves would be far more than simply a loss for the literature on impeachment, which in any case would build on his insights. It would remove a foundation stone from the intellectual edifice that is perhaps the most important advance made in constitutional law during my lifetime: the development of what might be called the “standard model” that enables legislators, citizens, and journalists as well as judges to resolve constitutional questions when there is no authoritative judicial precedent, and to assess judicial opinions when there is a precedent. Black’s tour de force is as important to this development as Weinberg and Salam’s equations are to the Standard Model in physics.

The one thing I refused to do in this new edition was to touch a word of Black’s inimitable writing. It was enough that I was foolishly prepared to put my own stolid texts next to his poet-perfect prose. I would not “revise” Black’s work of genius.

So here it is: new (in some respects) but not improved.

Philip Bobbitt

March 18, 2018

I. chapter seven: recent precedents

Charles Black’s essay was written during the constitutional crisis provoked by the efforts of Richard Nixon’s presidential campaign to corrupt the processes of the 1972 election. Since then, we have experienced several other tremors of varying force in the landscape of impeachment.

Doctrinal arguments in constitutional law are developed case by case, following rules laid down in precedents. Very few actions by the Congress are governed by doctrine, but the Congress’s—and the president’s constitutional decisions—are subject to a similar sort of doctrinal analysis as those of courts or other legal institutions. As in common-law doctrine, the rule of “last in time” prevails (recent precedents are more salient than older ones), but the significance to be accorded these precedents varies with the authority of the decider. The 1999 impeachment and acquittal of President Bill Clinton carries more authority than the abortive attempt by a state legislature in 2008 to bring about impeachment proceedings against President George W. Bush, even though the latter is more recent. And what is the significance, if any, of the attempted impeachments against Presidents Ronald Reagan and Barack Obama? Can we infer that the legal bases for these indictments—respectively, the creation of a secret, privately funded covert action capability and the refusal to enforce congressional mandates regarding narcotics and immigration—were constitutionally inadequate? Or that the facts simply didn’t support the claims of high crimes, assuming these charges amount to such infractions?

There is something to be learned from the doctrinal history of presidential impeachments since 1974, but perhaps the most important development has been the transfer of influence from the organs of governmental decision-making to the public. Black’s essay emphasized the solemnity of the American trial process and cautioned that “a snow of telegrams ought to play no part” in it. The taking of polls regarding guilt or innocence would be “an unspeakable indecency.” That position, however faithful to the history, text, and structure of the impeachment provisions, is harder to maintain today.

What has changed is ourselves: we no longer have the confidence in the leadership of Congress that we had in the Nixon era, and impeachment is a supremely congressional action (indeed one reason we have lost that confidence is the fiasco of the Clinton impeachment by the House). Moreover, owing to the zeal of some (and perhaps the self-absorption of others), we have compromised the habits of decorum, fastidious withholding of judgment, impartial procedures, detachment from partisanship, and insistence on fundamental fairness that Black thought necessary to the due process of impeachment. We are more inclined to treat impeachment as a political struggle for public opinion, waged in the media, and less like the grand inquest envisioned by the Constitution’s Framers. The “vigilant waiting” urged by Black is less acceptable to a citizenry inflamed by its political divisions and uncertain as to the competence of its institutions.

There remains, however, this hope: that our people come to believe, even more than they believe the superiority of their own opinions, that the best means of realizing their preferences, and of preserving the values on which they believe their preferences to be based, lies in the working of legal institutions whose legitimacy depends on shared understandings, not sheer partisan political power. If this becomes the ethos of the new century, then the precedents still to be formed will restore Black’s reverence for the due process of impeachment as it stood in 1974, poised before the abyss.

A. Nixon and Watergate

On February 6, 1974, one year after a Senate committee convened its investigation of a burglary at the Democratic campaign’s Watergate headquarters, the House of Representatives passed a resolution authorizing the House Judiciary Committee to determine if grounds existed to bring a Bill of Impeachment against Richard Nixon. Following a subpoena from the special prosecutor as part of a grand jury inquiry, on April 30, 1974, the White House released to the House committee edited transcripts of tapes made of Oval Office conversations. When the special prosecutor pressed for unedited transcripts and additional conversations, the White House refused on grounds that the recordings were protected from compelled disclosure by executive privilege. On July 24, however, the Supreme Court ordered the president to comply with the subpoena. The pace quickened. On July 27, 29, and 30, the committee approved three proposed Articles of Impeachment and sent them to the full House. Before the House could vote, Nixon on August 5 released an incriminating tape that triggered a collapse in his support in Congress. He resigned on the 8th.

Does Nixon’s resignation create a precedent, even though there was no impeachment and conviction? What is the scope of that precedent? Is it coextensive with the charges in the Bill of Impeachment?

At a minimum, we can dismiss two proposed counts that were not referred to the full House: one charging the president with misleading the Congress regarding the secret bombing of Cambodia, and one alleging a failure to pay appropriate income taxes. There is little doubt that making war in the absence of an imminent hostile attack must occur with the acquiescence of Congress, but there was some doubt whether the administration, by informing senior congressional officials, had constructively informed the larger membership as well. It was also not clear whether a particular bombing campaign within a larger, authorized war might be within the prerogatives of the commander in chief, at least in the absence of congressional action to the contrary. The president’s failure to pay taxes is not in itself a high crime or misdemeanor because it is unrelated to his official duties; this count also decisively failed in the committee.

The three Articles of Impeachment sent to the House charged that the president obstructed the investigation of the Watergate burglary (adopted by a committee vote of 27-11); that he engaged in a pattern of conduct that violated various rights of individual citizens (adopted 28-10); and that he refused to cooperate with the committee by providing materials when requested (adopted 21-17). Of these three proposed Articles, the most we can say is that the president apparently judged at least one of them a sufficient basis for his resignation, thus giving Nixon’s resignation the vague status of a plea bargain negotiated in advance of an indictment—or perhaps what is called an Alford plea, wherein a defendant while asserting his innocence admits that the evidence is sufficient for him to be found guilty. In this case, a president effectively preempted indictment— impeachment—by voluntarily accepting the penalties that would have accompanied his conviction.

Thus the effective constitutional consequences of the Nixon precedent presume that at least one of the three counts was legally and factually sufficient for the president’s removal from office. Moreover, and more decisively, we know from multiple sources that by August 5, 1974, following the release of incriminating conversations recorded in the Oval Office, more than two-thirds of the Senate votes needed for conviction were committed against the president.

We can eliminate the third count as a precedent because the offense of contempt of Congress, on which Article 3 of the Bill of Impeachment was based, would have been cured by the release of the tapes and transcripts requested by the House Judiciary Committee, which, in the event, led to the president’s resignation. That leaves Articles 1 and 2, both of which charged Nixon with having violated his oath of office and the requirement of Article II of the Constitution that he faithfully execute the laws. The basis for this charge in Article 1 lay in the president’s impeding, delaying, and obstructing the investigation into the attempted theft of materials from the Democratic campaign headquarters (which he was not charged with planning.) Article 2 charged a violation of much the same duties in four separate spheres: violating the rights of citizens through IRS audits and the unauthorized sharing of personal data, and through surveillance outside that authorized by lawful authority; interfering with Department of Justice (DOJ) and CIA operations to effect a cover-up of White House officials’ involvement in the break-in; failing to report what he knew once he learned about the break-in; and creating a special intelligence unit in the White House. There is ample historical evidence, based primarily on statements by Nixon’s Republican defenders in the House, that Article 1 would have commanded broad support. The support for Articles 2 and 3 was less definitive.

Dealing with congressional doctrine much as we might parse the judicial opinions of a multimember panel, we can say that Nixon’s resignation stands for the proposition that where agents of a presidential campaign have violated the law in order to acquire political intelligence, and where the president, whether or not he was aware of the scheme, subsequently engages in a course of conduct intended to impede or mislead investigation of this illicit operation—such as by counseling witnesses to issue false statements, promising or paying “hush money” to potential witnesses, making false statements to US officials, withholding evidence, promising favorable treatment for silence, or making false statements to the public—there is a sufficient predicate for impeachment.

Thus, far from eviscerating the precedent, or at least creating no new doctrine, as would have been the case had the charges been withdrawn before the House could vote on them, the president’s own conduct stands for the recognition that the gravamen of at least one of the charges satisfied Article II’s requirement of a “high crime” against the Constitution.

B. Reagan and Iran-Contra

For the increasingly fraught relationship between Congress and the president today, the Watergate affair is the gift that keeps on giving. One such gift is the legacy of the Church Committee, convened in 1975 to explore the Nixon administration’s illicit use of the intelligence agencies, which had been uncovered by the Senate Judiciary Committee in its Watergate investigation. The Church Committee examined CIA and FBI abuses more broadly, including the improper monitoring of American citizens’ political activities as well as various sensational intrigues abroad. In the aftermath of the ensuing revelations, Congress enacted various statutory and regulatory restraints on covert action—and pressed for a restrictive executive order promulgated by the Ford administration—that many intelligence professionals felt hampered their ability to compete effectively against foreign adversaries.

By the 1980s, US covert operations faced a funding cutoff in Central America and risked exposure there and elsewhere from congressional committees that were, by law, required to be informed of these secret plans. This conflict with the Congress occurred against the backdrop of a rise in anti-American terrorism in the Near East and the apparent inability of US clandestine operations to penetrate and neutralize the groups responsible. Throughout 1984 and 1985, the United States was the target of bombings, assassinations of its diplomats, hijackings of sea and aircraft, and, ominously, a wave of kidnappings originating in the stateless chaos of Lebanon. The traditional methods of counterterrorism, which depend upon firm local authority and careful police work, seemed impossible in such circumstances. The Reagan administration struggled to secure the release of hostages, several of whom were tortured and killed. Despite its failure to protect its agents, the administration steadfastly refused to pay ransoms. Thus the country was genuinely shocked to learn from a report first published in a Lebanese magazine that a secret mission, headed by the president’s former national security advisor, had traveled to Iran to do just that. The mission was sent to negotiate a ransom payment by means of the sale of otherwise embargoed US missiles to the Iranian regime.

When Justice Department officials, who thought they were investigating a relatively simple arms-for-hostages scandal, stumbled upon a memorandum that quite casually listed the Nicaraguan Contras, a right-wing insurgency against that country’s elected socialist government, as recipients of profits from the illicit arms transactions, the effect on the public was electrifying. It appeared not only that the president had been lying about ransoming hostages—“America will never make concessions to terrorists,” Reagan had asserted in a news conference in June 1985—but that he had taken the opportunity presented by the ransom deal to divert funds to aid the Nicaraguan insurgency in defiance of US statutes forbidding such assistance. When the Senate select committee appointed to investigate the affair began its work in early 1987, the public and the Congress believed they already had a relatively clear picture of the facts in the Iran-Contra scandal. This picture was depicted in the report of the Tower Commission, whose account went as follows: the president, in a desperate effort to rescue American hostages held captive in Lebanon, had agreed to sell hitherto embargoed arms to the Iranian government; because these weapons were procured at wholesale cost to the US government and sold at a black market price to the Iranians, they brought a substantial profit; instead of being returned to the US Treasury, these profits were then “diverted” to the Contras. The question of the hour was: Did the president know about this diversion?

This focus on the diversion reflected a mistaken assumption among the president’s political enemies that only a violation of the US Criminal Code could serve as grounds for impeachment. They seized on the diversion as the most promising basis for such a charge. If the president had contrived to misappropriate funds that properly belonged to the Treasury by authorizing that the profits from the sale of US war materiel be sent to the Contras, then proof of this would serve as the predicate for his removal from office. The House majority staff conducted an investigation that appeared to be based on these assumptions. Interestingly, and with perhaps greater insight, the president’s closest counselors were also willing to stake their hopes on the outcome of a contest over the president’s knowledge of the diversion. They believed that the president would not have paid much attention to what was little more than an accounting method.

In fact, the constitutional violation was far more profound than the diversion. The more serious offense lay in the development of a quasi-private covert action capability of which the diversion was merely a minor side effect. A privatized, off-the-books covert action agency offered the administration several important advantages. First, the outsourced agency could manage the Contra insurgency, fulfilling the oversight role played by the CIA before its funding and participation were curtailed through a series of statutes. The privatized agency would avoid the unwelcome scrutiny of Congress because it would not be subject to congressional funding, and this too was thought to enhance the secrecy of its projects. Second, such an agency could act more daringly, avoiding the legal restraints of executive orders that it would be embarrassing to repeal. It could defy certain international norms against reprisal because it would not be definitively associated with the US government. Thus it might recapture the initiative that the United States seemed to have surrendered to terrorist groups. Finally, the agency’s apparent detachment from the official government would afford the president plausible denial of US responsibility should the agency’s operations be exposed. Statutes adopted in the late 1970s required that the president verify in writing the necessity of each covert operation and inform congressional oversight committees about them. These laws had greatly increased the political risk of these operations, since the president’s authorization might always be exposed after he had issued a public denial.

There was, however, a fundamental constitutional problem with this bright idea. Article I provides the link between government operations and the democratic mandate by requiring that all funding take place by statute, that is, by the actions of elected officials who can be turned out by the voters every biennium. In attempting to circumvent Article I by relying on nonappropriated funds, no matter how noble his purpose and no matter how beneficent the source, the president was striking at the Article’s role as the very foundation of our democratic system. Article I provides the check on the actions of the federal government provided by the biennial election of members of the House.

This error in attempting to use nonappropriated funds is compounded by the solicitation of operating funds from foreign governments with whom the federal government alone has institutional economic, security, and diplomatic relations. In some cases, where the “donating” country is the recipient of federal assistance, the solicitations amount to little more than kickbacks, and the executive avoids congressional oversight because the money comes from the assistance program budget. Moreover, the United States can become subject to blackmail when the donating regime threatens to expose the scheme.

The Federalist Papers do not treat this exotic subject directly, but a relevant discussion can be found there. In Federalist #26, Alexander Hamilton observed: “It has been said that the provision, which limits the appropriation of money for the support of an army to the period of two years, would be unavailing: because the executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature.” In the same essay, Hamilton had discounted this concern, asserting the profound importance of biennial elections for maintaining control through appropriations. This seems to underscore the centrality of the appropriations process, even and perhaps especially in the arena of national security.

In the event, nothing happened. The president went on television and vaguely apologized for not appreciating that his scheme to release American hostages could be perceived as a ransom. The “Enterprise,” as one of the conspirators had named the private covert-action entity, was not discussed. Without some appreciation of what was at stake, the idea of impeachment faded with the inability to prove the president had himself directed the diversion. A tree had fallen in the forest, but even those that heard it did not recognize it as such. Article 2 of the Articles of Impeachment against Richard Nixon adopted by the House Judiciary Committee had charged that the president had “authorized and permitted to be maintained a secret investigative unit [which was privately] financed which unlawfully utilized the resources of the Central Intelligence Agency, [and] engaged in covert . . . activities.” But no connection was drawn between this charge and the privately financed, covert action agency set up by the National Security Council under President Reagan.

Moreover, nothing compelled the Congress to go further. A decade later, some members of Congress would argue that the Constitution gave the House no discretion not to impeach the president if he had committed high crimes and misdemeanors, but this erroneous insight lay in the future.

While there is no doctrinal precedent to be inferred from this travesty, it would be idle to suppose that the secret privatizing of federal functions ended with the Iran-Contra affair. It waits, hidden in the groundcover of constitutional misapprehension, and will no doubt stir again as market mechanisms replace agency regulations as a preferred means of governmental operations.

C. Clinton and Gingrich

What is the scope of the precedent created by the Clinton impeachment if, as in the Andrew Johnson impeachment, the Senate refused to convict? Does the refusal to convict cast doubt on the legal sufficiency of the indictment, given that the principal facts were not really at issue?

On November 5, 1997, well after the independent counsel Robert Fiske had determined that Bill Clinton and his wife had not acted improperly in the collapse of an Arkansas bank and land development scheme known as Whitewater, and well before the confidante of a former White House intern secretly taped the intern’s revelations of a brief affair with the president, a Georgia congressman introduced House Resolution 304 along with seventeen cosponsors. This resolution called for an investigation to determine whether there existed grounds for Clinton’s impeachment, though none of its claims ever made it into the Bill of Impeachment (of which the congressman became a House manager), or into the report of the independent counsel who succeeded Fiske, which provided the basis on which Clinton was impeached. Nevertheless, the resolution caught the affronted mood and the venom evoked in many by the president and the exhilaration of the effort, nurtured by the Speaker of the House, to contrive the president’s removal. The history of the Clinton impeachment is not one of an unfolding, escalating disclosure of the president’s maneuvers, like Watergate, but rather a largely fortuitous combination of parallel legal moves actuated not so much by events as by an obsessive ambition to remove Clinton from the White House by whatever means could be found.

Parallel lines of inquiry linked the independent counsel’s Whitewater investigations and a private civil suit, financed by the president’s political opponents, over an alleged sexual advance. Both scandals, if that’s what they were, occurred when Clinton was governor of Arkansas, before he became president. Had either strand played out on legal grounds, there might never have been an impeachment proceeding. The independent counsel never found any evidence of wrongdoing with respect to the Whitewater matter, and sexual misconduct is not, in itself, an impeachable offense, barring some nexus between this behavior and the president’s official duties. It was only when these two lines of attack were studiedly brought into intersection that a trap could be laid for the president, tempting him into false testimony that might conceivably serve, it was thought, as a predicate for impeachment.

The Whitewater scandal erupted into the national consciousness when a New York Times story—which did not charge the Clintons with anything unlawful—was suddenly supercharged by the suicide, in late July 1993, of a deputy White House counsel and former law partner of the first lady in Little Rock. Republicans in the Congress pressed for the appointment of an independent counsel to investigate Whitewater and its relationship to this death. Perhaps convinced that he had not behaved improperly, the president asked the attorney general to appoint such a counsel. Because the statute authorizing the office of the independent counsel had expired, she made the appointment on the basis of her authority as head of the Justice Department, choosing a prominent Republican lawyer, Robert Fiske. After a six-month investigation, his office issued a final report dispatching claims of foul play in the death of the deputy counsel. As for the Whitewater charges, Fiske’s report amply sustained an independent study commissioned by the regulatory body overseeing the reconstitution of failed banks, which had cleared the president and former governor.

After Congress reauthorized the independent counsel statute, a three-judge panel appointed Kenneth Starr, a respected former solicitor general, to go over the same ground. Starr spent three years investigating Whitewater and was unable to find any prosecutable wrongdoing by either the president or Mrs. Clinton. When he submitted his final report to the House Judiciary Committee to urge impeachment, he scarcely mentioned the Whitewater matter. Instead, he offered the results of a lengthy investigation into charges of sexual misconduct by the president.

A former White House employee, who befriended a former White House intern and became her confidante, began secretly taping their conversations at the suggestion of a literary agent who was prominent among anti-Clinton partisans. Part of the conversations concerned sex the intern had had with the president. Frustrated at her inability to insinuate reports of the president’s misconduct into mainstream news outlets, the confidante gave the story to lawyers representing a former Arkansas state employee, Paula Jones. Jones had brought suit against the president alleging crass sexual behavior while he was governor, and the suit eventually morphed from an effort to restore the plaintiff’s self-respect into an effort to harass and humiliate the president. This lawsuit eventually brought together various anti-Clinton forces who, though they wished to drive the president from office, probably never thought this would be accomplished through impeachment based on Jones’s claims, which were ultimately dismissed by the trial court.

This picture changed in early January 1998, when a former law school classmate of one of the members of the group financing the Jones suit went to work for the independent counsel. Informed about the secret taping, the independent counsel authorized contact with the confidante and also sought approval from the DOJ and the panel that had appointed him to expand his jurisdiction on the grounds that a friend of the president, allegedly linked to the Whitewater investigation, had also attempted to help the intern find postgovernment employment. Starr’s deputy apparently falsely assured the deputy attorney general that there had been no contact with the Jones attorneys. When the expanded authorization was given, events quickened. Clinton was due to be questioned by Paula Jones’s attorneys just two days later, on January 17, and they now could ask him about the intern. The day before this deposition, the intern’s confidante led her into an ambush: FBI agents and three of the independent counsel’s deputies confronted her at a hotel in Arlington, Virginia. There seems little question that, as a postmortem by the Department of Justice later put it, lawyers for the independent counsel exercised poor judgment in negotiating with the former intern without her counsel present. Preventing her from informing her lawyer about the trap into which she had been lured, however, was essential to ensnaring the president. In a sworn deposition on January 17, 1998, Clinton denied having sexual relations with the intern; claimed he could not remember ever having been alone with her; and permitted his lawyer to state on the basis of an earlier, false deposition by the intern that there was no sex in any manner between the two. Starr concluded that Clinton had committed perjury and submitted his findings to Congress.

That report itself was without precedent and, especially in light of the ultimate resolution by the Senate, should not serve as a model for future reports by either independent counsels (authorized by statute) or special counsels appointed by the Department of Justice. Leon Jaworski, when he was a special prosecutor in the Watergate matter, scrupulously sent to the House only a few factual files on President Nixon, accompanied by no recommendations whatsoever. Starr, instead, urgently pressed the House to impeach Clinton, both in his report and in testimony to the House Judiciary Committee. The Judiciary Committee conducted few real hearings of its own, choosing instead to rely mostly on the independent counsel’s report as a basis for impeachment.

The full House considered four charges. The bases of these charges were that the president had (1) abused his office by using staff to facilitate sexual liaisons with other personnel, (2) used his office to buy silence by offering jobs or threatening to embarrass others, and (3) lied under oath and given false statements to the public to cover up his misconduct and thus to obstruct the pursuit of a lawful investigation and prosecution (which supported two of the charges). The House ultimately adopted two Articles of Impeachment: perjury to a grand jury, and obstruction of justice. Two other Articles failed: the second count of perjury in the Jones case, and one accusing Clinton of abuse of power. A trial in the US Senate began immediately after the seating of the 106th Congress. A vote of 67 senators was required to remove Clinton from office. In the event, 50 senators voted to convict the president on the obstruction of justice charge and 45 voted to uphold the perjury charge. No Democratic senator voted guilty on either charge. Thus Clinton, like Andrew Johnson, was acquitted on all charges.

In their summations, neither counsel for the president nor counsel for the House managers addressed the issue of whether the president had committed a constitutional crime: whether a nexus had been shown between his official duty to uphold the Constitution and a concerted effort by him to imperil the country through acts that undermined his unique duties as president.

It may well be that, two decades later, in the atmosphere of public outrage over sexual misconduct by powerful men, Bill Clinton would have been driven from office by his own party. Does that mean that the constitutional law of impeachment has changed? Does greater sensitivity to rather crass and manipulative sexual behavior elevate that behavior to a crime against the perpetuation of the order and ethos of the State, even accepting that such predations have enormous political and cultural consequences?

It is sometimes said nowadays that no corporate board member would hesitate to remove a CEO found guilty of the president’s behavior. The Senate, however, is not a board of directors, and it does not appoint the president. If we know little about how the Framers and ratifiers of Article II would answer this corporatist question, we know this: they decisively rejected removal of the president for simple maladministration, and they rejected also the subordination of the president to the Congress that such a power would imply. But do their intentions really matter when we have a new, perhaps more equitable consciousness? Or should that consciousness be reflected in elections rather than in prosecutions and trials conducted by the Congress? The aggressive change to more confrontational tactics between the branches of government initiated and championed by the Speaker of the House at the time of the Clinton impeachment is still with us, even to a heightened degree. The news media’s adversarial mode (I have in mind the New York Times as much as any cable news channel) was much in evidence in the Clinton catastrophe and is with us still. But the Democrats who rallied around the president then would be in a very different position today.

It is true that they protected the presidency from a fortuitous conspiracy that would have changed the balance of constitutional power between the branches. Starr even wanted to make the exercise of executive privilege an impeachable offense—as did the equally aggressive members of the Judiciary Committee during Watergate. Perhaps the Democrats were at fault for failing to find common ground with their Republican colleagues by forcing a resignation—as the Republicans did to Nixon—especially since there was a competent vice-president in the wings who had also been elected by the American people.

Ultimately, the Clinton impeachment carries very little doctrinal or precedential authority, because the House indictment was decisively rejected by the Senate and because of the indictment’s peculiar grounds. If the answer to the wrong question is not a wrong answer but no answer at all, then the questions put to the Senate by the prosecution established no rules for the future. There is a cautionary tale here, but its lessons are largely negative. They urge us not to repeat this disgraceful episode.

If, for example, the president were knowingly to make bombastic and false statements in public, or in private to his subordinates, that were neither crimes in themselves nor related to his performance in office, he should not be entrapped by federal officials asking him whether he knew the statements to be untrue or be forced to reiterate them in sworn testimony. Only if the false statement is part of a concerted effort to commit an impeachable offense—that is, a constitutional crime—can such deceits serve as the predicate for impeachment.

There are, however, less substantive issues as to which the Clinton impeachment did provide precedents. One was whether a Bill of Impeachment adopted by the House of one Congress is sufficient to trigger a trial in the Senate after a new Congress has convened—or whether a new bill must be voted by the House. In the ordinary course of legislation, if a bill passes only one house before a Congress ends, it must be reenacted by both houses of a new Congress in order to be sent to the president for signing. In the case of Andrew Johnson, the Bill of Impeachment was passed by the House and tried by the Senate during the same Congress. In the Clinton case, a new Congress might have made a difference, as the new House had more Democrats, and the second Article of Impeachment barely passed the old House—although in the event the new House continued to back the impeachment managers. But the Senate chose to rely on Thomas Jefferson’s Manual of Parliamentary Practice—written when Jefferson presided over the Senate as vice-president—and the precedents of judges impeached and tried by different Congresses. Because the Senate could have decided the other way, we may take the Clinton precedent to be that a House from one Congress can validly refer an impeachment to the Senate of another.

The Senate formulated an initial set of rules governing proceedings in the run-up to President Johnson’s impeachment, and that framework largely survived through the Clinton trial. In 1935, the Senate amended these rules to include what is now Rule XI, which provides:

That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine.

Charles Black disapproved of this measure, arguing that the text of Article I—“the Senate shall have the sole Power to try all impeachments”—left no scope for subgroups. His views were not rejected in United States v. Nixon so much as left open, when the Supreme Court accepted the argument that the Senate’s power to try impeachments included the nonreviewable discretion to determine how to conduct its trials. This is consistent with the court’s jurisprudence that it should avoid expressing opinions on matters delegated to other branches. During the Clinton impeachment trial, evidence was presented to the whole Senate, not to a Rule XI committee, and so it is probably correct to say that the constitutionality of such committees—at least where the presidency is at stake—remains untested. The Senate may well be the final determinant of its own rules, but its recent practice suggests some ambivalence about employing Rule XI procedures in a presidential impeachment.

The impeachment and acquittal of Bill Clinton in 1998-99 are the only comprehensive precedents for the impeachment process since the impeachment and acquittal of Andrew Johnson in 1868, which was itself the first impeachment of the president since the creation of the office of the presidency in 1789. Accordingly, the Clinton debacle, from which no one walked away unscathed, will shape the development of the impeachment clauses more than any other events to date, including the Nixon resignation. This development gives reason for concern, for it reflects the effects of concerted attempts to criminalize American politics, weaponizing our legal processes by evading or even discarding the constitutional bases of those processes. Clinton’s impeachment may be partly responsible for the contempt in which many Americans hold their political institutions.

D. Bush and the Iraq War

On February 19, 2008, the New Hampshire House of Representatives took up House Resolution 24, a bill to petition Congress to commence impeachment proceedings against President George W. Bush and his vice-president, on charges that included taking the United States to war against Iraq. The New Hampshire House had heard testimony supporting “a legal theory that a state legislature can in fact force the US House to begin impeachment proceedings.” This theory was based on “section 603 of Jefferson’s Manual of Parliamentary Practice [which] states that an impeachment may be set in motion by the United States House of Representatives by charges transmitted from the legislature of a state.”

The New Hampshire proceedings appear to have arisen from several embedded confusions. Jefferson’s Manual was created from materials he assembled and used as an aid when presiding over the US Senate. They included notes he took while a student at William and Mary College as well as his comments on British parliamentary procedure, and he augmented them throughout his tenure as vice president. He published them as a single work, intended for future vice-presidents, in 1801; a second edition with added material was printed in 1812. Although prepared for the US Senate, the Manual was formally incorporated by the House of Representatives into its rules in 1837.

The sponsors of the New Hampshire resolution calling for the impeachment of President Bush appeared to have relied on House commentary on Jefferson’s Manual, not as they claimed on his actual text. That text provides that “the Commons, as the grand inquest of the nation, becomes suitors for penal justice. The general course is to pass a resolution containing a criminal charge against the supposed delinquent, and then to direct some member to impeach them by oral accusation, at the bar of the House of Lords, in the name of the Commons.” The commentary adds that “in the House various events have been credited with setting an impeachment in motion: . . . A resolution introduced by a Member and referred to a committee . . . ; Charges transmitted from the legislature of a State or territory or from a grand jury; or facts developed and reported by an investigating committee of the House.”

There are several problems here: the text relied upon is not Jefferson’s Manual; even if it were, the Manual is an authority for the rules of the House only to the extent that these have not been modified by later precedents; and in any case the Manual was written for the Senate and is largely a commentary on British parliamentary practices of the time, which, with respect to the grounds for impeachment, are quite irrelevant. Furthermore, no rule of the House could possibly force the House to commence impeachment proceedings. House rules can always be changed or amended by the members, and more importantly, any compulsion is probably incompatible with the provision of Article I, section 2, clause 5 that the “House of Representatives shall have the sole Power of Impeachment.” Perhaps for these reasons, some commentators have mocked the New Hampshire resolution and its sponsors.

This would be a mistake. While it was an error to purport to rely on Jefferson’s Manual, the commentary on the Manual on which the authors of the resolution should have relied is, if anything, more relevant than the original provisions of the Manual. That commentary cites Volume 3 of Hinds’ Precedents of the House of Representatives of the United States, sections 2469 and 2319, which do indeed appear to offer precedents in which referrals from the legislature of a state or territory have served as the basis for Congressional consideration of an impeachment inquiry.

On February 20, 2008, the New Hampshire bill was ruled “Inexpedient to Legislate,” and it was tabled on April 16, never to be revived. But in an era in which the federalism of the US constitutional structure has empowered more assertive state legislatures, and as the US population continues to sort itself geographically by political and cultural preferences, this route to impeachment may someday be reactivated.

E. Obama and Executive Discretion

Two developments—the appearance of cities and states that refuse to cooperate with federal immigration officials, and the legalization of marijuana by many states despite federal narcotics laws criminalizing its use—are harbingers of a deeper change in the constitutional order of the American State, to which I alluded in the preceding section. The increasing polarization and paralysis of Congress only speeds this change. What if the president, unable to push his reform agenda through the Congress, simply refused to enforce the laws he could not get repealed? Would that constitute an impeachable offense?

One of the proposed charges drafted by the House Judiciary Committee at the time of the Nixon impeachment was the claim that the president had refused to spend appropriated funds for projects and operations to which he was opposed on grounds of policy but that had been passed over his opposition and sometimes his veto. This charge of “impoundment” turned on the president’s intent. It was not uncommon for presidents to decline to spend funds authorized by the Congress; Thomas Jefferson had done so in 1803, and the power was generally regarded as inherent in the executive. Jefferson’s case involved his refusal to spend money authorized for the acquisition of warships for the US Navy. He reported that “the favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of [the authorized funds] unnecessary.” Nixon, however, used impoundment to override congressional policies with which he disagreed. He had tried to impound funds for an environmental project that he had opposed and then vetoed, and to which his veto had been overridden. In the end, the Judiciary Committee refused to forward to the whole House the charge of impoundment as a separate impeachable offense. Later, in Train v. City of New York (1975), the Supreme Court held that the impoundment power cannot be used as a kind of irrefutable veto.

For my part, I believed at the time that impoundment could provide a strong predicate for impeachment when the president used his discretionary power over expenditures for the purpose of dismantling or crippling programs regularly enacted in lawful form. Charles Black, however, was careful to call this a “gray area.” The president might think that if cuts were needed to ensure fiscal stability, they ought to come where they might be least hurtful. Moreover, Black noted, many appropriation statutes authorize but do not mandate spending. Anticipating Train, he concluded that the president might believe that by impounding funds he was merely referring a doubtful matter to the courts.

The Obama presidency was criticized for a not dissimilar tactic: using its prosecutorial discretion to decline to enforce statutes with which the president disagreed. In 2009, the Department of Justice simply ceased enforcing federal narcotics laws against persons whose actions complied with “existing state laws providing for the medical use of marijuana.” But the most far-reaching of the administration’s actions in this vein was the president’s decision, announced on June 15, 2012, not to enforce the removal provisions of the Immigration and Nationality Act against an estimated 800,000 to 1.76 million persons who were illegally present in the United States.

The criteria used by the Obama administration tracked those proposed by the Development, Relief, and Education for Alien Minors Act (DREAM Act), first proposed in 2001, which Congress had repeatedly failed to adopt. The constitutional problem for such a presidential strategy arises from Article II, section 3, which provides that the president shall “take Care that the Laws be faithfully executed.” In the words of an early nineteenth-century commentator, William Rawle, “Every individual is bound to obey the law, however objectionable it may appear to him: the executive power is bound not only to obey, but to execute.” There seems to have been from the very beginning of our constitutional life a consensus that the Take Care Clause imposed a duty on the president to enforce laws whether or not he considered them wise as a matter of policy.

This view of the Take Care Clause is strengthened by the broad language of the Vesting Clause that puts in the hands of the president all “executive Power”—in contrast to the language of Article I, which gives the Congress only those “legislative Powers herein granted,” and the even more restricted judicial power of Article III. In light of Article II’s broad grant of power, the Take Care Clause can scarcely be an additional grant of authority, and instead is generally read to underscore the responsibility of the president to exercise his power to ensure that the laws of the United States are actually executed.

This construction is further strengthened by the Presidential Oath Clause, which prescribes the following: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States . . . ”

Finally, the history of the adoption of the Take Care Clause at Philadelphia further supports the view that this clause requires the president to enforce the laws adopted by Congress regardless of his view of their merits (excepting constitutionality). As the influential Framer James Wilson, who introduced and advocated the principal ideas of Article II, put it some years later, the clause established that the president has “authority, not to make, or alter, or dispense with the laws, but execute an act of the laws, which [are] established.”

None of this is to deny that an ineradicable element of the executive function is discretion and the prerogative to carry out the purpose of statutes as effectively as possible. As with impoundment, however, it is a matter of intent. If the president concludes that a lack of available personnel, or contradictory directions from Congress, or changed circumstances compel him to give priority to the enforcement of some provisions and not others, that is one thing. If his argument is not made in good faith, it follows almost ineluctably that the laws have not been “faithfully” executed. As two critics of the administration put it, “for if the president can refuse to enforce a federal law against the class of 800,000 to 1.76 million individuals, what discernible limits are there to prosecutorial discretion? . . . Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively suspend the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?”

F. Before and After

When Alexander Hamilton wrote in Federalist #65 that the jurisdiction of impeachment covers “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” did he mean that the actions for which an official can be impeached must take place while that person is in office? Presumably a private person—perhaps even one seeking office—is not yet a public person. On this line of thinking, an impeachable offense may be committed only by someone who can be impeached—just as the Code of Military Conduct can be violated only by someone who is or has been in the armed forces. There must be someone to whom the prohibition applies when the act occurs; and by this reasoning, the impeachment of a public official cannot be based on her acts before entering public life.

Supporting this view is the ordinary construction we give to the term “high” in the phrase “high Crimes and Misdemeanors.” Like the notorious High Sheriff of Nottingham, or the Lord High Executioner of Gilbert and Sullivan, this term here applies to government officials and their duties. Just as we must distinguish “high Crimes and Misdemeanors” from the ordinary crimes found in statute books, we must be equally careful in determining who precisely is subject to these prohibitions.

It should be noted that in the precedents of the Nixon and Clinton impeachments, the House Judiciary Committee took care to exclude Articles of Impeachment that arose from acts that occurred before their subjects took office.

Those who argue that acts prior to assuming the presidency are relevant to impeachment note that people seeking the office of president must submit to many legal restrictions as to how they run their campaigns, receive money, what their financial disclosures must report, and so forth. If not uncovered during the campaign, violations of such restrictions should be a matter for Congress, it is said, once the conspiracy is exposed. There’s something to this, but I don’t think that consideration necessarily lies in the role of Congress as the assessor of the legal culpability of the successful candidate—whose criminal conduct, at any rate, can always be prosecuted in the criminal system, even if this must wait until the end of his term.

Some also argue that offenses committed by the civilian, if they are serious enough, would if discovered render the office of the presidency nonviable. Of course that may be true, but this nonviability seems to be political rather than legal, and thus a matter for public judgment, not for trial by a coordinate branch of the government. A congressional judgment of nonviability would bring us perilously close to making maladministration a ground for impeachment—a basis that was decisively rejected at the Constitutional Convention. And finally it is urged that once in office a president can make investigation of his earlier offenses difficult and time-consuming even if the initial disclosure of these offenses has otherwise undermined his legitimacy. Invoking executive privilege and relying on his authority to control the work of the Department of Justice, a president could rescue an administration that is foundering and ought to be dispensed with. So it is argued that impeachment must be available as a remedy even though the original acts which now occasion such contempt occurred before the inauguration. However strong a motive the exposure of earlier misdeeds might provide for public impatience or even revulsion, it scarcely satisfies a legal standard for prosecution and conviction to say that a great many voters are experiencing buyer’s remorse. Our institutions, based on a respect for the rule of law, demand that mercurial judgments of approval are insufficient to overturn the constitutional mandate of a presidential election. Moreover, obstruction that was itself official misconduct could still provide a basis for impeachment even though the incident of the obstruction was not itself an official act, that is, occurred before the president assumed office.

Before offering what I believe to be the best rule to resolve the before/after dilemma, let us look at an actual historical case rather than a series of hypotheticals: the incident of the so-called Chennault Affair that received renewed attention in 2017.

In the autumn of 1968, encouraged by Soviet channels, President Lyndon Johnson decided to offer Hanoi a complete cessation of US bombing in Vietnam, believing that, for the first time, the North Vietnamese were willing to agree to the basic framework the Johnson administration insisted was a precondition for American withdrawal. Having made his decision, he discovered that the Nixon campaign was sending messages to the South Vietnamese ambassador via a prominent Asian-American Republican activist, Anna Chennault. These messages encouraged the Saigon government to refuse to participate in the peace talks then under way by promising that a Nixon administration would take a harder line against Hanoi. Johnson ordered government surveillance of Chennault, the South Vietnamese embassy in Washington, and the president of South Vietnam’s offices in Saigon.

The LBJ Presidential Library has made available tapes of conversations between Johnson and Senator Richard Russell that disclose Johnson’s awareness of Nixon’s conspiracy. Johnson received FBI surveillance reports detailing contacts between Chennault and the South Vietnamese ambassador in which she advised him she had received a message from Nixon saying, “Hold on. We are going to win . . . . Please tell your boss [the South Vietnamese president] to hold on.” LBJ is also recorded telling Everett Dirksen, the Republican leader of the Senate, “I’m reading their hand, Everett. This is treason,” to which Dirksen replied, “I know.”

Although the election was only days away, Johnson refused to take these revelations to the public. Perhaps he feared that the administration’s surveillance of an ally and a candidate for the presidency would poison his successor’s presidency, whoever won the election. Without conclusive proof of Nixon’s knowledge or collusion that he could make public, Johnson spoke to Nixon directly. “I would never do anything to encourage [Saigon] not to come to the table,” Nixon told Johnson. In a famous interview, he later elaborated: “I did not authorize [Chennault] and I had no knowledge of any contact with the South Vietnamese at that point . . . . I couldn’t have done that in conscience.” But notes taken by H. R. Haldeman, Nixon’s chief of staff, suggest that Nixon was in fact the mastermind behind the conspiracy. These notes record Nixon’s direction to Haldeman on October 19 that the South Vietnamese president was feeling “tremendous pressure” from Johnson and that the South Vietnamese wanted the Republicans to determine what the “quid pro quo” would be for their cooperation in stalling the peace talks. Nixon said, “Keep Anna Chennault working on South Vietnam.”

What might have happened in the war, or in the election, if this conspiracy had been exposed, one cannot say.

The Chennault Affair contains many strands that my brief account necessarily ignores, but let us assume that the charge against Nixon is accurate: while running for the presidency in 1968, he persuaded a foreign government to delay peace negotiations in order to advance his candidacy. This gives us a paradigm case, because it involves an attempt to pervert the course of an election. Does it matter whether Nixon would have lost the election had his schemes been unsuccessful, or whether he actually swayed the South Vietnamese? Is it enough that he believed the election was in the balance and that his conspiracy might make the difference in a very close race (which it was)? In such a case, the before/after distinction seems beside the point. The constitutionally significant elements in the conspiracy are not confined to Nixon’s subsequent acts in public office but clearly include the effects on a public event of great constitutional significance—a presidential election. Perverting the course of an election—or attempting to do so—either by illicit means, such as stealing documents in an effort to embarrass an opponent (as in Watergate), or improper means, such as torpedoing peace negotiations by the existing government, cries out for a clear rule. During the 1787 Philadelphia Convention, Virginia delegate George Mason asked, “Shall the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” What rule do we apply if we don’t know whether the office was in fact successfully procured by corrupt means? Suppose Nixon would have won anyway? Suppose his collaborators in Saigon didn’t need any further incentives to frustrate the Johnson peace talks?

The sensible rule ought to be that when a substantial attempt is made by a candidate to procure the presidency by corrupt means, we may presume that he at least thought this would make a difference in the outcome, and thus we should resolve any doubts as to the effects of his efforts against him. Yet we must confine the operation of such a rule to truly substantial constitutional crimes, lest we ensnare every successful campaign in an unending postmortem in search of nonconstitutional misdeeds.

On this rule, the president could not be impeached for insider trading in securities, or for a narcotics violation if these occurred before he entered the White House. Doubtless there are middle cases that may or may not provide grounds for impeachment, such as a conspiracy to disturb the course of justice by promising pardons to win political support of their beneficiaries (which may amount to bribery) or concocting tax fraud schemes. These crimes would affect government operations, but unless the president takes some official act once he is in office, they do not in themselves amount to the constitutional crimes envisaged by our Framers and ratifiers.

This rule of construction also avoids an otherwise absurd conundrum: conspiracy with agents of a foreign state is not a problem before an election because there is no crime of electoral collusion on the federal statute books, but the obstruction of an investigation after an election also poses no problem for the conspirator because although it is a crime, a sitting president cannot be prosecuted and could thus serve out his term.

II. chapter eight: seven fallacies

Though much has changed in the practices of the US government and in the expectations of the public since 1974, much abides. From the very beginning of our life as a republic under a constitution ratified by our people, there have been six fundamental methods taken from English common law by means of which the Constitution has been applied. These six forms of argument—history, text, structure, doctrine, prudence, and ethos—are sometimes called “modalities,” the philosophical term for the ways in which a proposition is determined to be true. In the constitutional law of the Unites States these six modalities determine whether a proposition of constitutional law is deemed to be true—whether the assertion of a particular constitutional principle accurately states the law. Together these six archetypal forms of argument compose the standard model by which judges, lawyers, officials, and citizens determine the law of the Constitution. Indeed, that is the point of this book: impeachment is a matter of constitutional law and for this reason Charles Black’s analysis remains as potent today as when it was written, despite the changes in American political society. One of these modalities—doctrine, or precedent—is applied according to the rule that the latest in time by the most authoritative source is dispositive. Thus the increased aggressiveness shown by the House in 1999 is now part of our law as to what the House may lawfully deem an impeachable offense. Another of the modalities—prudence, or the calculation of cost and benefits—also applies to a present context that is constantly shifting as the country’s social, political, and economic situation changes. The public’s demand for influence on events, effectuated by polling or social media, for example, and the media’s demand for greater transparency in government, reflected in the deplorable anonymous release of confidential grand jury information, are as much the drivers of this change as they are its manifestations.

Case law and political calculation, however, are not the only forms of legitimate constitutional argument. Thus there are counter pressures to recent developments to be found in the Federalist Papers (history); in Black’s lucid technical mastery of the ways in which the terms of a legal document are construed, like the rule of eiusdem generis (text); in the basic, though always contested, relations between a Congress that may not remove the president merely because a majority of its members have lost confidence in the administration, and the president who may not abuse his powers simply because he is unable to work the machinery of legislation effectively (structure); and in the tradition of the rule of law that is supreme over politics where constitutional rules are to be applied (ethos). These modalities are just as potent as doctrine and prudence, perhaps even more so when we are searching for firmer ground as the earth moves beneath our feet.

Moreover, even recent doctrine by an authoritative tribunal like the US Supreme Court can be wrong because the court’s reasoning is found to be flawed. As a doctrinal matter, the limitation of Bush v. Gore to its own facts is a fatal admission of its vacuity as a precedent, and the Supreme Court has never relied on the case since it was handed down. Or the decision may remain contested because the various modalities point to different holdings. Even the unanimous holding in Clinton v. Jones will not save it from ridicule because of its prudentially naïve dismissal of the impact of a civil suit on the presidency. These observations may sound like technical matters, or subjects more fit for a treatise on jurisprudence than a handbook on the methods of impeachment, but they go to the heart of Black’s book: impeachment is a matter of decision according to law, and there are some decisions we can make—according to the law of the Constitution—that will guide us even in terrain where the law is currently undecided. There are also some propositions of constitutional law that are demonstrably false and can be shown to be so. It might be well to dispose of them before we proceed to the application of constitutional law to our contemporary predicaments.

I’ve chosen seven of the most seductive of these fallacies (some constitutional scholars call them “myths” ). Clearing them away will help us see the matter of impeachment more perspicuously. That some are widely and tenaciously held does not validate them, but is rather an implicit criticism of law professors and journalists whose job it is to inform and educate the public. That many people believe them is, while troubling, not dispositive; as the saying goes, ten times zero is still zero.

These fallacies are:

Impeachment is a political question, not a legal one. The grounds for impeachment are whatever the House of Representatives determines them to be by voting a Bill of Impeachment and sending it to the Senate. A criminal act by the president is an essential predicate to impeachment. Any serious criminal act by the president is grounds for impeachment. Congress cannot remove a president via impeachment for exercising or declining to exercise authorities that are constitutionally committed to the president’s discretion. Acts authorized by Congress cannot provide a predicate for the impeachment of the president who carries out these acts. What constitutes a “high Crime or Misdemeanor” does not vary with the office of the person being impeached.

Sometimes these fallacies interlock. A person who thinks impeachment is a political, not a legal, matter may be inclined to believe that customary legal determinations like the assessment of motive or state of mind have no place in an impeachment inquiry, and therefore she may also accept the fallacy that a president cannot be impeached for his discretionary acts, whatever his purposes. Similarly, believing that impeachment is a political rather than a legal act gives grounds for concluding that an impeachable offense is whatever the House claims it is.

One fallacy may also share an erroneous assumption with another. If you think impeachment is fundamentally a response to the commission of an ordinary crime, not a constitutional crime, you may be more likely to conclude that impeachable offenses must be found in Title 18, “Crimes and Criminal Procedure,” of the United States Code, and that Title 18 offenses provide a sufficient basis for impeachment.

The reason these fallacies endure is simply that their perpetrators haven’t bothered to apply the legal methods to correctly assess them, perhaps because they don’t ultimately believe impeachment is a matter of law and indeed may not believe that there is anything we can call “law” that is not politics. To someone taking this position, it may be unpersuasive to retort that that belief is incompatible with the US Constitution, which places law above political action in Article VI (among other places), because to such a skeptic the Constitution itself was little more than a snare for the gullible. But if that is the case, why bother with impeachment? Why not just march to the White House and arrest the president? And why should the president, who actually has armed forces at his command, sit still for an impeachment proceeding if not out of deference to the rule of law? Such views lead inevitably to violence and authoritarianism. Once law has been swept away, there remains no restraint on the competition for power. That these views are often urged by the advocates for the people who would be most vulnerable in the face of such violence is merely an irony.

A. Fallacy 1: Impeachment Is a Political Question, not a Legal One

John Tyler, a former Democrat from Virginia, was added to the Whig ticket headed by William Henry Harrison in 1839. After succeeding to the presidency upon Harrison’s death in 1841, he surprised many Whigs when he vetoed two important groups of Whig legislation on policy grounds (as opposed to constitutional grounds, which had hitherto generally been the basis for presidential vetoes). On July 12, 1842, an impeachment resolution was introduced in the House and a House select committee, headed by former president John Quincy Adams, was formed to consider the issue. Though Adams was a harsh critic of Tyler’s and appears to have been persuaded of the necessity of eventual impeachment, he refused to press for the adoption of an impeachment resolution on the grounds that it would have been defeated in the Senate. This is the first example of an impeachment attempt against a president, and it appears to have been resolved on political rather than legal grounds. What constitutional support is there for such a resolution, that is, the decision on political grounds not to go forward with an otherwise valid case for impeachment?

First, the determinations to indict and to convict are made by two political bodies, not by the courts. Second, as a matter of recent precedent, there is ample evidence that most commentators in the Congress and the media today assume that the impeachment question is “more political than legal,” though the basis for this belief is rarely stated. Third, the passage of the Seventeenth Amendment, which took the selection of senators out of the hands of state legislatures and gave it directly to the voters, has suggested to some that for the Senate to resolve an impeachment indictment by the House on legal rather than political grounds would create a “countermajoritarian difficulty”—meaning that it would risk thwarting the will of the popular majority. Fourth, and possibly most influential, is the idea that law is just politics anyway, and appeals to constitutional legal standards are little more than a charade, a cover for the reliance on political calculation. As a prominent constitutional lawyer put it in the New York Times in 2013,

Law is just politics by a different name, and most Supreme Court justices are result-oriented, and choose legal theories (originalism, judicial activism and the like) as window dressing while they go where they want to go. Although these illusory labels can be treated as serious methodologies and may be of interest to law professors, the American legal system [is] just another part of government neither higher nor lower than the other two branches, and one that must be muscled.

Well, if that is true of the judicial system, what hope is there for the Congress when its members are called upon to act as judges and jurors? Finally, there is the Clinton precedent, which suggests that the acquittal of the president, on charges whose legal grounds were admittedly slight, was ultimately determined by his popularity with the public, which itself was based on factors that could scarcely be called legal.

Against the view that impeachment is principally or wholly a political matter is an important exchange at the Constitutional Convention—even though this exchange is frequently misconstrued to provide support for the claim that impeachment is not a legal matter. This exchange occurred when George Mason objected to limiting the grounds for impeachment to bribery and treason—the original formulation. He proposed adding the term “maladministration” which appeared in six of the thirteen state constitutions as a ground for impeachment, including that of Mason’s own state of Virginia. After James Madison objected to the vagueness of “maladministration,” Mason substituted “high Crimes and Misdemeanors.” This phrase is defined in Blackstone’s Commentaries on the Laws of England—a book the Framers knew well—as including, among other things, maladministration, and so quite a few persons have concluded that, at least to this extent, there is a permissible political basis for impeachment. In fact, the reason Madison gave for his objection to this term was that it would make the presidency equivalent to “a tenure during the pleasure of the Senate.” But if the House may not impeach a president on grounds so general that they amount to his service at the mere consent of the Senate (as, for example, a prime minister can be removed by failing to win a vote of confidence in Parliament), then mere political grounds for impeachment cannot be the mandate of the Constitution.

Moreover, if the language is in some contexts open to competing constructions, there is one thing the text does not provide. As Akhil Amar has astringently noted, “The Constitution does not say that a president may be ousted when half the House and two-thirds of the Senate want him out.”

In addition to these historical and textual arguments, there is the powerful precedent that since 1789, only nineteen federal officials have been impeached by the House, and of these only eight have been convicted by the Senate. Of the eight persons impeached and convicted, all were judges, and none were indicted on political grounds. In the same period, only two presidents—Andrew Johnson and Bill Clinton—were tried by the Senate, and neither was found guilty. As Jane Chong observes, for “35 percent of our history, a US president has coexisted with a House controlled by the opposing party (that’s 80 of the past 228 years since the start of the Washington administration) . . . . [O]nly two presidents have suffered the disgrace of impeachment. Those two . . . were Democrats who were each ultimately acquitted by a Republican-controlled Senate.” If the grounds for impeachment were political, one would expect it to be used more often for partisan reasons.

Finally, a passage from the Federalist Papers, often quoted out of context, appears to support the conclusion that impeachment is a political matter but actually does no such thing. This is the observation by Alexander Hamilton in Federalist #65 that “the subjects of [impeachments] are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

Read in context, however, Hamilton’s reflection has the opposite import to that for which it is so often cited. In #65, Hamilton is at pains to show that the Senate can act in “their judicial character as a court for the trial of impeachments.” Indeed he introduces the paper by saying that he will conclude his discussion “with a view of the judicial character of the Senate.” A bit defensively, he continues,

[A]well constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective . . . . The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community and to divide into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.

The entire essay is an attempt to show that the Senate can overcome its political nature as an elected body—chosen at the time by the members of the state legislatures—and act as a proper “court for the trial of impeachments.” That is why Hamilton goes to great lengths to show that the Supreme Court is an inappropriate alternative—since it could be involved in subsequent criminal proceedings against the impeached president—and thus cannot substitute for the Senate.

Yet Justice Samuel Chase and President Andrew Johnson were impeached on political grounds—and they were cases of “first impression,” that is, they were without precedent. What are we to make of this?

I think the resolution lies in differentiating the roles of the House and Senate. While the grounds for impeachment must be legal in nature, the decision whether to bring a Bill of Impeachment lies within the political discretion of the House, as John Quincy Adams urged. This is an extension of the analogy of the House proceedings to those of a grand jury, before which prosecutors have considerable leeway in determining what charges to press and which to decline to prosecute. The Senate, by contrast, sits as a law court: its proceedings are convened and presided over by the chief justice of the Supreme Court. More importantly, unlike the members of the House, senators take a special oath in addition to the oath of office that commands their fidelity to the Constitution. This second oath binds each member of the Senate to swear to “do impartial justice, according to the Constitution and laws: So help me God.”

B. Fallacy 2: The Grounds for Impeachment Are Whatever the House Determines Them to Be

In 1968, President Lyndon Johnson nominated an associate justice to be chief justice of the Supreme Court to fill the vacancy created by the retirement of Earl Warren. In an effort to block this appointment, ethical charges were made against the nominee, Abe Fortas, that were sufficient to hold over the vacancy until after the election of Richard Nixon. This maneuver set in train a series of events, including the nomination and rejection of a capable appeals court judge, Clement Haynsworth, and then the rejection of his replacement, Harold Carswell, on grounds that infuriated partisans of the nominees. In the maelstrom of those confirmation fights, the Republican minority leader of the House, Gerald Ford, bruited the idea of impeaching the most liberal member of the court, William O. Douglas. It has been suggested that Ford thought a threatened impeachment could be a bargaining chip to be traded to the Democrats to get them to abandon their opposition to the Nixon nominees.

To preempt the creation of a select committee, which would divert jurisdiction from the Judiciary Committee, the Democratic chairman of that committee contrived to have a resolution of impeachment introduced against Douglas for “[h]igh crimes and misdemeanors and misbehavior in office.” Ford, perhaps in frustration at this maneuver, spoke on April 15, 1970, to demand action by the Judiciary Committee. As to whether Douglas’s alleged wrongs provided a sufficient basis for impeachment, Ford stated that “the only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history.”

In his speech, Ford leveled five major charges against Douglas:

· Douglas had improperly failed to disqualify himself from the obscenity cases of a publisher who had paid him $350 for an article on folk singing that appeared in one of the publisher’s magazines;

· Douglas’s book, Points of Rebellion, violated standards of good behavior and was “an inflammatory volume”;

· Evergreen magazine, which had published an excerpt from Points of Rebellion, also printed pornography;

· Douglas had a relationship with a private foundation that had paid him a director’s fee (a similar arrangement with a nonprofit foundation had been the basis for charges against Fortas);

· the Center for the Study of Democratic Institutions, of which Douglas was chairman, was a “leftish” organization and a focal point for militant student unrest.

Ultimately, the Judiciary Committee refused to support Douglas’s removal, and the midterm elections, in which the Democrats gained seats, and Ford’s own lack of enthusiasm for the project caused the impeachment effort to fade away. But Ford’s off-the-cuff remark that the grounds for impeachment are “whatever a majority of the House . . . considers [it] to be at a given moment” is apparently imperishable. What support is there for this widely held view?

There seems to be only one argument in support of Ford’s claim. Because the decision to impeach is not reviewable by a court, any vote to impeach must go unexamined—it is argued—even if it is based on political or even personal animus. A Bill of Impeachment that dispensed with valid legal charges altogether would nevertheless be referred to the Senate for a trial, if the bill was approved by a House majority.

Perhaps nowhere than in reply to this insidious argument is there greater salience to Charles Black’s words in this book that “we have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts.” A corollary to this widely credited but nonetheless destructive misconception seems to be that outside the process of litigation in the courts, no government actor is bound by law. On the contrary, using the modalities of constitutional argument I have described earlier, it is possible for government officials—and the public and the media that assess their actions—to determine the legality of those acts and their constitutionality. In fact I would go further: it is incumbent upon the office holders and citizens of a democratic republic to do so.

Consider for a moment some of the objections to Congressman Ford’s maxim. If it were true, then the House could impeach a federal official on account of her religious beliefs, despite the explicit provision of Article VI that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Moreover, members of the judiciary would hold their posts at the pleasure of the Congress, in defiance of the system of sequenced and linked powers of the tripartite structure of the federal government. And as we have seen, Ford’s rule would contradict the intention of the Framers and ratifiers that the basis for impeachment and removal from office be founded on evidence of bribery, treason, or similar offenses against the constitutional viability of the State.

What could possibly be meant by the requirement that Congress is bound by its oath to uphold the Constitution, if this applies only in adjudicated cases? Could the House attach a bill of attainder (a legislative act declaring a specific person guilty without trial) to the impeachment resolution forwarded to the Senate? Could it violate the prohibition on ex post facto laws by inventing a new high crime and misdemeanor—such as serving on the board of a “leftish” think tank—that few reasonable people would have anticipated would constitute grounds for removal by impeachment?

These points are so obvious that I must assume that they have not been overlooked by the advocates for Ford’s dictum. Perhaps what these advocates really believe is that a majority of the members of the House of Representatives are prepared to lie about the true basis of their votes. But even if this were the case, it is not as damaging as Ford’s claim that they needn’t bother to do so.

C. Fallacy 3: A Criminal Act by the President Is an Essential Predicate to His Impeachment

Since 1936, virtually all successful judicial impeachments have involved criminal behavior, but that is hardly dispositive of the question whether the same standard should be applied to the president. Although the text is identical, the standards for impeachment of the president might well be unique because the constitutional crimes that can be committed by a president are unique. Moreover, the removal of the president reverses a national election (in most cases) and thus is a far graver step in a democracy than the removal of a single member of the judiciary.

Ironically, it may be this fact of uniqueness, the sense that a grave, historic step is being taken, that has intimidated members of the House, who may then wish to defend themselves against charges of having acted arbitrarily by relying on the explicit certainties of federal or state criminal codes. For example, one of the most constitutionally consequential charges against Richard Nixon was his use of the impoundment power—or “rescission”—as a super veto that could not be overridden. Instead of rescinding expenditures of funds appropriated and authorized by Congress owing to changed circumstances, as had been the practice since Jefferson, Nixon simply refused to spend the funds when appropriations were passed by the Congress over his veto. This is a constitutional crime that only the president can commit; it is unlikely to be in the statute books. Not only does it defy the Supreme Court’s holding in the line item veto case, it takes that maneuver one step further by creating a veto that cannot be overridden. Had succeeding presidents emulated Nixon, impoundment would have unilaterally changed the allocation of powers created by Articles I and II. Nevertheless, all of the charges against Nixon adopted by the House were also common crimes. The House managers of the case against Bill Clinton were also anxious to stress the criminal aspect of the perjury charges leveled against him; they refused to include the abuse of power allegations recommended to them by the independent counsel.

The erroneous assumption that commission of a crime is an essential predicate for impeachment altered the course of the select committee to investigate the Iran-Contra affair. Democrats in the House who were anxious to impeach President Reagan felt compelled to demonstrate that he had been aware of the transfer of funds from the sale of missiles by Israel to Iran into accounts used to fund the Contra insurgency in Nicaragua, and thus that he had committed the common crime of misappropriation. Given President Reagan’s management style, this was a difficult assignment, but, far more importantly, the effort to do so diverted the investigation away from the more consequential constitutional crime committed by the president when he set up a private covert action agency, run by the government but funded from private funds, including those from foreign countries.

Yet requiring investigators to show that a common crime has been committed may be useful as a check on hyperpartisanship in the impeachment process. Charles Black wrote that we “feel more comfortable when dealing with conduct clearly criminal in the ordinary sense, for as one gets further from that area it becomes progressively more difficult to be certain, as to any particular offense, that it is impeachable.” But if this clarity and avoidance of partisan behavior provide prudential reasons for such a requirement, the Clinton impeachment does not support this surmise. All of the charges forwarded to the Senate alleged crimes, but the actual vote in the House fell almost strictly along partisan lines.

One need only consider a few hypothetical cases to realize how inadequate such a requirement would be for impeachment. What if the president required that all cabinet members affirm their belief in the divinity of Christ? Or that he devolved to his personal financial adviser classified intelligence about upcoming decisions of the Federal Reserve? Because the president can declassify any material he wishes, there is nothing per se illegal about this. What if the president announced that under no circumstances would he respond to the invocation of NATO’s Article 5, which calls upon the signatories to the North Atlantic Treaty to aid each other when they are attacked? Or suspended habeas corpus after Congress had refused to do so and while Congress was in session? Suppose a candidate for the presidency conspired with foreign intelligence agencies to provide him with sophisticated data analytics in order that they could more effectively assist his campaign. This may or may not be a crime, depending on whether information from a foreign government amounts to the “contribution or donation of money or other thing of value” to the campaign, but it can scarcely be doubted that it is a high crime in the circumstances of a presidential election. As Black wrote after giving his own hypotheticals, “the limitation of impeachable offenses to those offenses made generally criminal by statute is unwarranted—even absurd.”

This conclusion accords with James Wilson’s observation that “our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment.” It is also consistent with Justice Joseph Story’s conclusion that the harms to be reached by impeachment are those “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.”

D. Fallacy 4: Any Serious Criminal Act by the President Is Grounds for His Impeachment

Perhaps because bribery and treason are crimes, some have inferred that any crime could serve as the basis for impeachment of the president. This view is inconsistent, however, with the notion of a “high crime.” Bribing a maître d’ to get a good table at a restaurant might excite an overzealous prosecutor, but it could scarcely serve as a predicate for action by the House to remove a president. Like treason, the impeachable offense of bribery—like other impeachable offenses that are also common crimes—must be an act that actually threatens the constitutional stability and security of the State.

Here we have, fortunately, an important precedent, though not one decided by a court. As Chief Justice Rehnquist wrote in his own study of impeachment, Grand Inquests: the impeachment acquittals of Justice Chase and President Johnson were cases “decided not by the courts but by the United States Senate.”

Aaron Burr, vice-president during Jefferson’s first term, killed Alexander Hamilton in a duel on July 11, 1804. There is some dispute as to whether Hamilton fired into the air before being shot in the spleen and liver by Burr, but there is no doubt that dueling was illegal both in New York, where both men were residents and where Hamilton was taken to die, and in New Jersey, where the duel took place. For the killing, Burr was indicted in both jurisdictions. (In New York, dueling was a capital offense.)

Yet after first fleeing to South Carolina, Burr returned to Washington to complete his term as vice-president. Not only was he not impeached by a Congress controlled by the president, who despised him, but in his role as vice-president, he subsequently presided over the first impeachment, against the Federalist judge Samuel Chase, and was given high marks for his judicial temperament and impartiality.

When construing the Constitution on the grounds of historical argument, we give great weight to the actions of the first few Congresses and presidents because they were familiar with the understandings on the basis of which our people ratified the governing document. It is obviously true, with respect to judges, that any serious crime is a sufficient predicate for bringing a Bill of Impeachment; as we have seen, nine members of the judiciary have been impeached, mainly on the basis of having committed common crimes. But what about Burr? Whether we say that the vice-president stands with the president, perhaps because he too is elected by the entire nation, or whether we place him on some lesser pedestal nearer the judges, the fact that Burr was not impeached suggests that at the very least a president cannot be lawfully impeached for the commission of an ordinary crime—even murder. Charles Black found it inconceivable that “a president who had committed murder could not be removed by impeachment.” He came to this conclusion because such a crime “would so stain a president as to make his continuance in office dangerous to public order . . . . We could punish a traitorous or corrupt president after his term expired; we remove him principally because we fear he . . . is not thinkable as a national leader.”

What looks like a paradoxical precedent can actually be harmonized with the standards we have thus far derived. An impeachable offense is one that puts the Constitution in jeopardy. This act might also be a common crime, but the reason we impeach is not to punish common crimes. In the Burr case, the insignificant role of the vice-president in that period, the nearness of his term’s end, perhaps even the alienation between Burr and Jefferson all militated against impeachment.

This analysis also explains Congress’s rough treatment of the judges. It wasn’t simply because they had committed common crimes that they were impeached and removed from office. Rather it was because having committed a common crime, they had undermined their own ability to serve in the judiciary where they must assess and render judgment on the common crimes of others.

Perhaps this is the place to reaffirm Black’s position that a serving president must be impeached before he or she can be indicted and tried for an ordinary crime. This point is made repeatedly in the Federalist Papers. In #65, Hamilton observes that

the punishment, which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to perpetual ostracism from the esteem and confidence, and honors and emoluments of his country; he will still be liable to prosecution and punishment in the ordinary course of law.

This point is made again in Papers #69 and #77, which assert that the president could not be prosecuted as a criminal until he had left office, a point confirmed in the first Congress by both Oliver Ellsworth and Vice-President John Adams.

Moreover, as a prudential matter this surely cannot be an open question. Does anyone really think, in a country where common crimes are usually brought before state grand juries by state prosecutors, that it is feasible to subject the president—and thus the country—to every district attorney with a reckless mania for self-promotion? Have we forgotten Jim Garrison already?

Thus the question, which I will take up in the next chapter, whether a president’s obstruction of the operations of the Department of Justice must track the requirements of the criminal statutes that prohibit the obstruction of justice in order to serve as the basis for impeachment, misses the point. As Black observed, the constitutional significance of the fact that an impeachable offense may share elements with a common crime is only that judges and executive officials are put on notice of the impropriety of certain acts.

In any case, we no longer have to make this choice because the Twenty-Fifth Amendment allows us a way out. If a crime is sufficiently shaming as to make the president “not thinkable as a national leader,” we may presume that the vice-president and a majority of the principal officers of the executive branch (or some other body that Congress has designated) have grounds to declare that the president is unable to discharge the powers and duties of his office. Should the president resist, Congress must determine whether the president is fit to continue in office. It may transfer his powers to the vice-president by a two-thirds vote of both houses.

E. Fallacy 5: Congress Cannot Remove a President for Exercising Authorities that Are Constitutionally Committed to His Discretion

Certain authorities are granted by Congress to the president, for instance by the Authorization for the Use of Military Force after 9/11. In the next chapter I will discuss whether Congress can impeach a president who acts pursuant to such powers in the absence of countervailing statutes. But other powers are granted directly to the president by the Constitution, including those accorded to him as head of the executive departments and thus as chief law enforcement officer, the pardon power, and authority over the armed forces as commander in chief. Can Congress impeach a president for acts committed pursuant to power that is exclusively his?

Interestingly, in light of the importance of the early Congresses, the House in the first session of the first Congress discussed impeachment extensively. The issue was whether the president had to return to the Congress for permission to remove the head of an executive department appointed by him and confirmed by the Senate. If a cabinet appointment required the participation of the Senate, did dismissal also require Senate action?

On the floor of the Ho