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Web Letter

A brief suggestion for Mr. Levinson: Read the 1998 Report by the Staff of the Impeachment Inquiry from the House Judiciary Committee. In it, the overall conclusion is that grounds for impeachment do not need to be criminal in nature, and that impeachment in itself is a political tool.

If impeachment were in fact limited to criminal transgressions, then it would follow that the impeachment trial would carry criminal sentencing. It does not, however. Impeachment merely removes an individual from office. Because the Senate is not an impartial jury of peers, it cannot act as a regular trial court and issue sentences; therefore making the very use of the Senate as a trial body in exclusively criminal matters inplausible.

Patrick K. Hunt

Granville, OH

Apr 25 2007 - 1:55am

Web Letter

At the time the constitution was written, was the term "high crimes" synonymous with felonies? If so, why not just use the word 'crimes' and cover felonies and misdemeanors instead of the more cumbersome "high crimes and misdemeanors"?

On the other hand, could the word "high" modify both crimes and misdemeanors and refer to offences special to the business of state from acceptance of petty bribes to treason (and by extension to torture and not to lying about an affair)? I am not a constitutional scholar. I would like to hear the opinions of Mr. Lardner, the authors of your recent impeachment articles and anyone else who has thought about the question.

Tom Garvey, MD

Lexington, MA

Feb 14 2007 - 2:34pm

Web Letter

I couldn't disagree more with Professor Levinson about the impeachment power. I would go so far as to say he doesn't know what he's talking about when he said the Founders deliberately limited impeachment to criminal activity. They regarded impeachment as the way to remove a president, or other high officials such as Supreme Court justices, for misconduct. James Madison, for instance, said in the Virginia debates on ratification that a president who had come under "suspicion" could even be "suspended" pending impeachment. I think he was making it up as he went along in that debate, since there is nothing in the Constitution saying that, but Andrew Johnson was indeed worried that Congress not only could but would do that to him with a veto-proof majority and he was even talking about calling up the armed forces to prevent that.

In any case, Madison, who surely knew what the framers meant better than Levinson, said in a House speech on June 16, 1789, that a President could be removed from office just for firing good men. Unfortunately, the House, in debating Andrew Johnson's impeachment in late 1867, took the position that criminal activity was needed. But that's not what the framers thought. Abuse of power is what they had in mind. The bottom line is that an impeachable offense is, as Rep. Gerald Ford once argued, whatever Congress says it is.

In the 1789 debate, Madison was speaking of the dangers on the one hand of seeing bad men kept in office under a president whose duty it was to see the laws faithfully executed and on the other hand of seeing meritorious officers fired by that president. The greater danger, he argued, was in the ouster of good men. "[F]or if an unworthy man be continued in office by an unworthy president the house of representatives can at any time impeach him, and the Senate can remove him, whether the president chuses (sic) or not." On the other hand, Madison asked, what restraint was there on a president who might indulge in "such an abuse of his power" as to remove from office a man whose merits require that he should be continued in it? The answer, Madison said, was this: "the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."

To elaborate on my point about the Andrew Johnson impeachment, I am talking about the first impeachment effort when the House Judiciary Committee, on Nov. 25, 1867, accused Johnson of "corrupt abuse of the appointing, pardoning and veto powers," especially in granting pardons to qualify rebel officers for election to state offices when their popularity rested almost exclusively on their service in Confederate armies and "their known hostility to the government of the Union." The debate in the House then boiled down to the question of whether the impeachment power was broad enough to cover such actions or whether it required a showing of indictable crimes. The House voted 108 to 57 for a showing of indictable crimes. Months later, the Senate, confronted with a law with criminal provisions, but a law that many thought unconstitutional, refused to convict him by a single vote. A vote in the House months earlier to impeach the president for abuse of power would have been completely in accord with what the Framers had in mind.

It may be worth noting that there were no Federal crimes when the Framers adopted the "high crimes and misdemeanors" language. There were only 16 such crimes after adoption in 1790 of the federal Crimes Act, prohibiting treason, murder on the high seas, etc. It did not, of course, forbid bank robbery since there were no Federal banks. Is Professor Levinson saying, for instance, that bank robbery is an impeachable offense because it was a state crime long before it was a federal crime? Is he saying that state legislatures can define what is an "impeachable offense"? Or is he saying that that lying to an FBI agent in an unsworn interview, which is now a Federal crime, is an impeachable offense while leading the nation into war on a stack of lies is not? Professor Levinson has the tail wagging the dog. An impeachable offense is what Congress, at any point in time, says it is.

A last thought: The reason the framers didn't insist on Congress having a say in pardons is the impeachment clause. If the pardon power was misused, impeachment was the answer, as the framers meant it to be for any blatant abuse or misuse of presidential power. Levinson's argument that no president would survive if the clause weren't limited to criminal behavior is nonsense. Presidents survive their own mal-administration and deceptions because Congress usually doesn't have the votes, or the courage, to do something about them.

George Lardner

Washington, DC

Feb 8 2007 - 6:35pm