Document Type

Article

Publication Title

Hastings Constitutional Law Quarterly

Publication Date

Winter 2007

Abstract

Since 1969, some elements in the Republican Party have been willing to use impeachment - the procedure through which the House of Representatives accuses and then prosecutes a federal official in the Senate with the aim of removing him or her from office - as a partisan political weapon. In 1969, Republican President Richard Nixon's administration built an impeachment case against Justice Abe Fortas and threatened to submit it to the House of Representatives, which Fortas prevented by resigning. In 1970, Nixon's administration tried to do the same thing to Justice William O. Douglas, but was outmaneuvered in the House. In 1998, Republicans in the House impeached Bill Clinton. And since then, impeachment talk has been surprisingly common among Republicans, particularly directed at the Ninth Circuit, the judges who did not order reinsertion of Terri Schiavo's feeding tube, and Justice Anthony Kennedy. And the Republican view of impeachment as a partisan political weapon is well supported by precedent in American history.

Partisan impeachment - in which one branch of government attacks another - played a central role in three of the four great confrontations between or among branches of the federal government. The first was the struggle, in the first decade of the nineteenth century, between the Federalist-dominated judiciary on one hand and the Jefferson administration and Jeffersonian Congress on the other. The second was the confrontation from 1865 to 1869 over the nature of the post-Civil War reconstruction of the South between President Andrew Johnson and a Congress run by Radical Republicans. The third (and the only one in which impeachment did not play a role) was the conflict that reached a peak in 1937 between the administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down New Deal legislation as unconstitutional. The fourth is the struggle - which began in 1968 and has continued intermittently since - in and between the two elected branches on several issues but most particularly over the composition of the Supreme Court.

This article compares the role of impeachment in each of these confrontations as well as other, nonpartisan uses of impeachment. The article explains how, from the first impeachment in 1797 through the trial of Andrew Johnson in 1868, impeachments were based on reasoning and rhetoric very much like those expressed and acted upon by Republicans since the Fortas episode in 1969. The article also explains how, after 1868, a parallel tradition of impeachment evolved through mundane procedures, nonpartisan and bipartisan, for separating corrupt judges from their constitutional lifetime tenure. The article concludes that, despite its superficial strategic appeal, partisan political impeachment for the most part fails to produce the results its advocates seek.

Some of what occurred during earlier eras of partisan impeachment will seem familiar to us today. For example, during the Adams and Jefferson administrations, attack politics like those we experience now - including accusing political opponents of treason and near-treason - dominated the political culture, and partisan impeachments were an inherent part of that culture (Part III(A) and (B)). Some historical figures, on the other hand, behaved in surprising ways. Chief Justice John Marshall, for example, feared impeachment by Thomas Jefferson's party in Congress, and Marshall routinely behaved in ways that would violate modern judicial ethics and would have been required, under modern conflicts-of-interest law, to recuse himself from some of the foundational cases in constitutional law (Part III(B)). Jefferson's letters to his subordinates during the most partisan disputes of his presidency reveal obsessions on his part similar to those expressed by President Nixon on the White House Watergate tapes, though without Nixon's dishonesty, vulgarity, and lack of imagination (Part III(B)). And during the trials of Aaron Burr, Jefferson invented transactional immunity by plea bargaining directly with some potential witnesses and by providing the prosecutor with blank signed presidential pardons to be given to any witness the prosecutor wished separately to immunize (Part III(B)). Several decades later, immediately before President Andrew Johnson was impeached, he tried to form a large army unit that would answerable personally to him, bypassing the ordinary chain of command, and that he could use against his political opponents if he wished (Part III(D)).

Some aspects of the Clinton impeachment have not commonly been understood. For example, the procedural safeguards observed by the House Judiciary Committee and the special prosecutors to prevent partisanship in the impeachment of President Nixon were ignored during the Clinton impeachment (Parts III(E)(5), III(F)(2), and IV(B)). The evidence of a right-wing campaign to destroy the Clinton presidency - beginning almost immediately after his inauguration in 1993 and culminating in impeachment in 1998 - is abundant, much of it becoming available after Clinton left office (Part III(F)(2)). And the evidence that Justice Clarence Thomas committed perjury during his confirmation hearings compares favorably with the perjury case against Clinton (Parts III(F)(2) and IV(A)).

Compared with the past, the political context in which we live today is not quite what it appears to be. Although the Republicans have been in control of both houses of Congress almost continually since 1995, they have done so through margins that are razor-thin by historical standards - thinner by far than those of any other party during any period of comparable length in American history, measured by seats and popular vote (Part IV(C)). For example, in the elections that produced the Senate that confirmed the nominations of Chief Justice John Roberts and Justice Samuel Alito, more votes were cast for Democratic candidates than for Republican candidates, and the public thus voted for a Democratic Senate but got a Republican one (Part IV(C)). Party insecurity produced by situations like this has a substantial role in encouraging partisan impeachments. The Jeffersonians who impeached Justice Chase, the Radical Republicans who impeached Andrew Johnson, and the Republicans who impeached Clinton were all new to power, insecure about their ability to hold onto it, and driven to use what power they had while they had it - unlike the Democrats in the constitutional confrontation of 1937, who had some of the most massive Congressional majorities in American history and could therefore look toward the future with confidence that problems could be solved without assaults on individual judges.

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