Is Impeachment Mandatory?

The distinguished Harvard Law professor Cass Sunstein has recently argued, in a widely published opinion piece, that if a US president has committed “Treason, Bribery, or other high Crimes and Misdemeanors” then Congress is obligated to impeach. https://news.yahoo.com/impeachment-mandatory-130024433.html.  The “support and defend the Constitution” clause of their oath of office imposes the duty on upon each and every member of the House of Representatives to vote to impeach if the constitutional predicate is satisfied. 

Sunstein is laboring uphill in that the constitutional language gives the House only the “Power of Impeachment.” There words of obligation in or around the provision. On other matters, the framers of the Constitution were not at all shy in explicitly setting out mandatory requirements. There were nearly 200 “shall”s in the original document, and, although a few of these were only vehicles of the future tense, most of them expressed obligation, direct or indirect.

Sunstein concedes that impeachment by the House has similarities to the prosecutor’s decision to charge, which is discretionary. He might have added that the parallel is even better for the grand jury, a vote taking, deliberative body. Famously the right is left with the jurors, as the conscience of the community, to vote no true bill even when they conclude that there is probable cause supporting the charge.

In the face of all this, Sunstein seeks to move us towards his conclusion by focusing on the most serious of impeachable offenses. “Imagine that he has betrayed his country, in a way that constitutes treason, or that he has killed or imprisoned journalists and political enemies.”    “Treason” is a word promiscuously hurled about these days, but it is an exceptionally serious offense, and, as Sunstein knows, a rare one. It has been charged fewer than 30 times in the history of the country, and not once since WW II. (There is even a respectable argument that the “Enemies” of the Constitutional definition, “levying War against [the United States], or adhering to their Enemies, giving them Aid and Comfort” should be read in light of the declaration of war clause. If so, there having been no congressional declaration of war since WW II, there can be no Aid and Comfort treason.)

Surely Sunstein is right that each congressperson has a duty to vote impeachment in the extreme cases.  But, then, each prosecutor also has a duty to charge serial murderers.  The prosecutor is not obligated by law to bring the charge, but the charge is required by morality, by justice, by her relation of trust to her fellow citizens.  For much the same reason, a negative vote on impeachment in a clear and extreme case would be not simply immoral but antithetical to any reasonable theory of the duties of a representative in a just state.  That does not, however, mean it would be unconstitutional.

In cases closer to the borderlines of impeachable offenses Sunstein concedes that reasonable people may differ, some, in all good constitutional conscience, voting to impeach and some not. In this, again, he is surely right. He is also right, I say with a little less confidence, in contending that purely partisan politics ought never be involved in the decision whether or not to impeach.

(At this moment in history, Sunstein’s anti-partisan-consideration thesis is especially salient. The Republicans have a strong partisan interest in voting against impeachment so long as Trump’s base remains north of 20%.  If the president were impeached and convicted with significant Republican support, the best the GOP could hope would be that Trump voters would sit out an election cycle or two – costing that party the presidency, and likely both houses of Congress.  The worst for the Republicans would be if the Trumpists formed a third party or completed the banishment of non-Trumpists from the GOP, effectively ending its career as a national party. An impeachment without significant Republican support would automatically lead to acquittal in the Senate, and might well lead to significant Democratic losses in the next election. The temptation to vote on partisan considerations may, therefore, be almost irresistible on one or both sides of the aisle, depending on how the facts unfold.)

 

At this point you may entertain the suspicion that I may have no real disagreement with Sunstein. I agree with him that there is an obligation of some sort to vote to impeach in the extreme cases, and that representatives, on either Sunstein’s theory or mine, may, in good faith, divide on cases near the borderlines. I provisionally agree also in condemning partisan considerations. Do I offer, then, anything more than an alternative way of saying what Sunstein says?

Yes. There is a real difference. It is a matter of more than “merely verbal” or “only semantic” importance. (Those who are fond of the phrase “just a matter of semantics” must be woefully ignorant of the depth and difficulty of semantic theory, but that is a topic for another time.) It will make a difference in real world practice whether an obligation to vote impeachment is a constitutional obligation or another sort of obligation.

It seems to be whole point of Sunstein’s piece that if an obligation is constitutional, it cannot be overridden. For him, there is a non-overridable duty to vote impeachment if one believes (presumably after appropriate investigation collects appropriate evidence) that the office holder has committed treason, bribery, or high crimes and misdemeanors.  I take it that there is a symmetrical duty to vote against impeachment if, under the same conditions, one believes that there has been no such offense.

The duty, as I read Sunstein, is no less stringent in a close case because, e.g., not a very important instance of bribe taking. Yet, there must be a bribe (or quasi-bribe) too insignificant, too indirect, or of a type too long accepted to support impeachment. Once the bribe is just large enough, direct enough, or not-previously-accepted enough, however, the obligation to vote impeachment becomes absolute. Of course, not all the members of Congress, even diligent, good faith members, should be expected to reach the same conclusion in these close cases. On Sunstein’s theory, however, one side or the other will be violating their constitutional obligations in every case – even if it is not entirely clear who it is that is in the wrong.

If, by contrast, the obligation is not constitutional, then, as Sunstein implies and I agree, other considerations might override it. Suppose, for example, you were in Congress in 1945, and had concluded that Roosevelt had crossed the bribery line, if barely and with little public notice, in his interaction with the appointee to ambassadorship to Bolivia. On Sunstein’s view as I understand it, you would have had to vote to impeach, and if no impeachment proceedings were pending, it would be your strict duty to initiate them. Any damage to the upcoming Yalta Conference be damned! Duty is duty! My own view is that it would have been proper for you to have considered wider issues of domestic and international politics in deciding how to respond to Roosevelt’s low-grade impeachable offense.

In addition to the president and vice president, impeachment can be used to remove “all civil Officers of the United States.” It has chiefly been used against Article III judges (who have lifetime tenure). There are currently over 800 Article III judges. Cabinet officers and other high administration officials are also impeachable, and middle level officials likely are as well. Could there really be a constitutional obligation to initiate impeachment proceedings against every judge and official who just barely crosses the line?

Grand jurors do not act unlawfully or contrary to their oath if they do not indict the repeatedly abused wife who used slightly more than necessary force in defending herself against her spouse’s latest violence. This is not a matter of husbanding law enforcement resources; it is the right thing to do. Other matters are sometimes more important than the punishment of a particular offense. Surely this may be true even for offenses falling within the meaning of “Treason, Bribery, or other high Crimes and Misdemeanors.”

 

For more on the comparison to criminal prosecution practice on the decision to initiate an impeachment investigation and the decision to impeach see https://lawrencecrocker.blogspot.com/2019/06/impeachment-investigation-impeachment.html