Obama: Is Impeachment a Viable Option?

On the internet, there has been considerable talk about impeaching Obama. Though surely an attractive solution to the “Obama Problem”, impeachment simply isn't as easily accomplished as many of us would like to believe it is.

And when the likes of former Rep. Dennis Kucinich (D-OH) condemns Obama for his UN-sanctioned Libyan military intervention without having secured Congressional approval beforehand, one is apt to believe that impeachment might well be that much closer to reality. Well, that's simply not so. Have you noticed how congressional talk of impeachment has all but disappeared?

Over the past several years in particular, an increasingly imperious executive has rapidly transformed the Office of the President into something only remotely resembling the executive office described in Art II of the Constitution. Though this transformation has been developing for some time now--aided and abetted by Congress, of course--the unseemly growth in presidential power appears to have been on an especially rapid ascent since Obama's inauguration.

Short of Congress's faithfully restoring the separation of powers between the Executive and Legislative branches, what is the constitutional solution to what many might describe as Obama's misconduct? Impeachment? Well, let's take a look.

Article II, Sec 4 of the Constitution states that “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

First off, it is important to understand that impeachment is NOT a legal process. It is a political process; thus, though the Founders' words “high crimes and misdemeanors” were intentionally broad to encompass nearly any misconduct or misbehavior while in office, in the final analysis impeachment remains a political matter. Essentially, where there is congressional will and consensus, there will be impeachment.

As Pres. Ford so aptly asserted when asked what an impeachable offense was, he replied that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” And, of course, impeachment is only part of the story. Conviction and removal from office still requires the approval of 2/3 of the Senate. No small feat, especially if the Senate is dominated by a party politically sympathetic to the President.

That said, to better clarify the meaning of Art II, Sec 4, let's briefly examine some definitions as well as what the Constitution's framers and ratifiers understood those words to have meant.

Based on English common law, “impeach” means to indict a person for misconduct while in office, and in the case of the United States indictment for purposes of impeachment falls solely within the purview of the House of Representatives.

Drawing on England's Treason Act of 1351, the framers limited treason to “levying War (declared or undeclared) against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” The word “comfort” meant “support” or “assistance”. As required in Article III Sec 3 for a person to be convicted of treason, two witnesses to the act or a confession in open court was needed.

Again based on English law, it is important to note that “high crimes and misdemeanors” is not synonymous with an indictable “crime” or “misdemeanor”. Also, “high” connotes misbehavior or a breach of fiduciary duty, aka breach of public trust, while in office.

In his Commentaries on the Laws of England (1757), which was a primary reference for American legal scholars in the 18^th century, Sir Wm Blackstone asserted that “the first and principal [high misdemeanor] is the mal-administration of such high officers, as are in the public trust and employments. This is usually punished by the method of parliamentary impeachment.” In other words, while mal-administration may not be in and of itself an indictable crime, within the context of the Constitution, mal-administration is an impeachable offense. Blackstone further elaborated on the meaning of “neglect”, or misprision, by pointing out that “THE principal misprision is the mal-administration of such high officers, as are in public trust and employments”.

Wm. Petyt's Jus Parliamentarium (1740) enumerated examples of conduct justifying impeachment on the grounds of breaches in public trust, those being self-dealing, neglect, misdirection of funds, and the misuse of the pardon powers.

John Comyn's Digest of the Laws of England (1780) also defined “high crimes and misdemeanors” as violations of public trust, among those being violations of criminal law, acting outside authority, issuing unlawful and irregular orders, self-dealing, other disloyal conduct such as recommending a prejudicial peace, and negligence.

In the Institutes (1765) by Edward Coke, another primary legal source of our framers, examples of breaches of fiduciary trust were variously described as self-dealing, neglect of duty, misdirection of funds, and, interestingly, misuse of pardon power. Among other breaches included violations of criminal law, such as encouraging piracy and bribery, acting outside authority, as by ratifying a peace not approved by the parties, using the Great Seal w/o permission, issuing unlawful and irregular orders, attempting to undermine religion, delaying court proceedings, refusing to carry out one's duties, violating fiduciary duty to account.

Among our Founders, James Madison argued that “an impeachment procedure for the President was necessary because it was indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate...He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”

George Mason believed impeachment was appropriate in instances of “corruption”, and Charles Pinkney believed it should be relied upon when public officers “behave amiss or betray their public trust.”

William Rawles, an early 19th century constitutional scholar, considered “the inordinate extension of power, the influence of party and of prejudice” and attempts to “infringe the rights of the people” as grounds for impeachment.

Also, Alexander Hamilton, though a fervent proponent of a strong Executive, observed that “from the very circumstance of his being alone, the President will be more narrowly watched and more readily suspected.” He believed impeachment should be relied upon in cases of "negligence and perfidy", the latter meaning faithlessness or treachery. Thus, the standard of conduct for the President was intended to be much higher for the Chief Executive than for officers in the legislative or judicial branches of government.

Since 1789, Congress has initiated 64 impeachment proceedings, the most recent being against Judge Porteous, US District Court for the Eastern District of Louisiana, who was convicted in 2010. Also, as a federal judge, Rep. Alcee Hastings (D-FL) was impeached and convicted for bribery in 1989, but since Congress did not prohibit his holding public office despite conviction, he currently serves in Congress as a representative of Florida.

Among the Presidents, Wm Clinton and Andrew Johnson were impeached but not convicted. (Nixon resigned before the articles of impeachment drawn up in the House against him could be acted upon by House members.)

As Robert Natelson summarized in The Original Constitution, “the Constitution's grounds for impeachment may be summarized as (1) treason, (2) bribery, or (3) other breaches of public trust—such as serious violations of law, disloyalty, self-dealing, abuse of power, failing to account for funds, and negligence in performance of duty. That negligence was a ground for impeachment demonstrates that an official might be removed for failure to act properly as well as for acting wrongfully.”

In The Lessons of Impeachment History (1999), Prof. M. Gerhardt, College of Wm. & Mary Law School, presented a cogent and careful examination of impeachment, and it is well worth reading. In his exposition, he noted that “the founders did not regard political crimes to be the functional equivalent of indictable crimes nor all indictable crimes to constitute impeachable offenses.” He explained that impeachable offenses require “a serious injury to the political order or to the constitutional system” and “involve the serious misuse of office or official prerogatives or breaches of the public trusts held.” Thus, as a practical matter, the legitimacy of an impeachment procedure is contingent upon public opinion and, by extension therefore, Congress's disposition. Thus, it more clearly appears that Pres. Ford's terse opinion on what constitutes an impeachable offense is not only succinct, but entirely accurate.

As said, the precise meaning of “high crimes and misdemeanors” was never clearly defined by the founders which appeared to have been intentional. During the Constitutional Convention in 1787, the framers described “mal-” and “corrupt administration” as well as “neglect of duty”, “malversation” (improper behavior in office), and “misconduct in office” as impeachable offenses.

Notably, framer James Iredell acknowledged how difficult it was to precisely define the scope of impeachable offenses, asserting that such would “involve serious injustices to the federal government"--subjective to be sure and requiring congressional consensus that said offenses were, in fact, impeachable.

Among specific impeachable Presidential offenses delineated by Iredell were 1) providing “false information to the Senate”, and 2) “accepting a bribe or acting from a corrupt nature.” However, he cautioned against punishing a President for “want of judgment”, but considered it appropriate to hold the President accountable for being a “villain” and “willfully abusing his trust”.

Interestingly, James Madison suggested that an impeachable offense on the part of the President is if he has “suspicious connections with others.” Again, this is subjective and requires congressional consensus as to what may, in fact, constitute "suspicious connections". 

Regarding the words "high" and "misdeameanor", framer James Wilson defined them as simply “political” and "misconduct" respectively.

Of special importance to me is Prof. Gerhardt's understanding that impeachable acts must be “malicious in nature” and “intended to expand one's powers beyond constitutional limits.”

Again, it appears that the founders deliberately left the definition of “high crimes and misdemeanors”-- which connote political crimes to the exclusion of indictable criminal acts--to the sole interpretation and discretion of Congress, the electorate and the judgment of history, the latter which most congresspersons would likely carefully consider when assessing whether or not an act was impeachable. The framers assumed that no legislator would want to invite the opprobrium of future historians by their recklessness or lack of judiciousness.

Prof. Gerhardt explained that to the founders the character of an office holder was also of supreme importance. As he observed, while prevaricating about a non-official activity (as in the Monica Lewinsky affair) may not equate to an office holder's violating public trust, merely the commission of such an act might very well impact how the public and Congress might view an office holder's overall suitability, trust worthiness, “moral authority” and, of course, his impeachability. Thus, for the pundits and Clinton supporters of his day to suggest that Clinton's lying under oath did not "rise to the level of impeachable offense" was not not only inaccurate, it was also deceptive and misleading, for in the final analysis only Congress can determine whether a President's misconduct is impeachable, and only Congress can remove a President from office.

Prof. Gerhardt concluded that the founders' views as well as our historical impeachment experience itself suggest that the founders believed that Congress must always strive never to impeach purely for partisan reasons. In short, Congress must always eschew “retaliation” or “punishment” simply as an expression of opposition to the President's “opinions, policy differences, or innocent errors of judgment” He studiously observes that impeachment should be carefully restricted to “misconduct that has caused serious injury to the Republic or to the constitutional system.”

With these definitions and the framers' explanations in mind, and fully understanding that congressional consensus is controlling, one should be able to more readily discern what conduct exhibited by our Chief Magistrate at any given time is most likely an impeachable offense. And if we are convinced a particular act is impeachable, it is, in turn, incumbent upon us to influence our congressional representatives to adopt the same view.

Last but not least, the political affiliation of the party in control of Congress is THE determining factor as to whether or not an impeachment or conviction is feasible. And unless a President's actions are especilly egregious and offensive to both parties or at least to a majority in the House and a 2/3 majority in the Senate, only the ballot box--or rebellion--can effectively remove him from office.