Friday, October 19, 2018

Impeachment: An American History

Impeachment: An American History (Modern Library Random House, 2018), a collaborative effort by four authors, Jeffrey Engel, John Meacham, Timothy Naftali, and Peter Baker, is the latest big-name contribution to this growing genre of books about one of the most seldom used but so much more talked about constitutional provisions, the impeachment of a president. (The book focuses exclusively on this and on the three relevant historical cases, and does not, for example, examine the somewhat more common impeachments of federal judges.)

The fact that impeachment is being so widely discussed again - 20 years after the Republicans so famously misused it in a partisan attack against a popular Democratic President - reflects the inflamed partisan passions of the present. As Alexander Hamilton observed, impeachments "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly to the accused." (Today perhaps the order is reversed. It is the agitated passions of a partisanly divided country that may cause, rather than be caused by, impeachments.)

The first chapter, "The Constitution," by Jeffrey Engel retells the familiar  story of the founders' efforts to forge a constitutional structure strong enough to  hold the 13 fractious states together in an effective union, while sufficiently containing federal power to preserve liberty. He emphasizes how George Washington was the model for the framers. (Washington was the founders' Cincinnatus-like alternative to the more threatening historical precedents of Julius Caesar and Oliver Cromwell.) For "none had ever seen him put his own needs above the nation's. Consequently any future chief executive who demonstrated the opposite ... would be so unlike the president they envisioned as to warrant removal and dishonor."

Impeachment was familiar from British law as a vehicle for removing problematic officeholders (but not, of course, the king). What the founders did was extend its scope to the chief executive as well. Again, the framers were preoccupied with balance - with holding a president accountable  for malpractice but not compromising the authority of the office by making him an easy target for political foes to remove at whim. In addition to treason and bribery, one could be impeached for "high crimes and misdemeanors," a phrase from English law that Blackstone in 1792 argued  referred to "public wrongs" that "area breach and violation of the public rights and duties, due to the whole community." At the time, Hamilton stressed that they were, by nature, "political" offenses.

The first presidential impeachment was that of Andrew Johnson, who has inherited the White House after Lincoln's assassination in 1865. Fellow Tennessean Jon Meacham recounts that infamous story. When I was in school, we were taught to take Johnson's side against the radical Republican Congress - a view reinforced byJohn F. Kennedy's account in Profiles in Courage. The view that the Senate had spared us (by one courageous vote) the tragedy of a presidential eviction from the White House, became, i believe, one of the major psychological obstacles to subsequent impeachments - a hurdle that was overcome in the 1970s. Meacham corrects that false image of Johnson as an agent of Lincoln's goal of national reconciliation by recalling the reality of Johnson, the racist Democrat out to thwart Congressional Reconstruction of the South. "For his obstructionism Johnson was eventually impeached (but not convicted) by a Republican majority in Congress ths thad come to see him as an impediment to the work of the nation." Johnson's story shows "how impeachment is a weapon of politics - and that any era can find itself amid a crisis over the removal of a president if the passions of the hour are ferocious enough." When Senator Edmund Ross of Kansas cast the deciding vote to acquit, a precedent was set, Meacham suggests, that the House could "act emotionally," but "the Senate would be expected to act rationally, giving future generations a precedent hat was more daunting than inviting."

The Johnson acquittal preserved the independence of the executive and prevented Congress from creating a de facto parliamentary system. Fast forward a century to the infinitely more powerful presidential office occupied by Richard Nixon, impeachment was still "s discredited constitutional remedy," according to Timothy Naftali's retelling of the familiar Watergate story, the crisis that threatened to upend that "prevailing view." Naftali highlights the critical part played by Peter Rodino (the House Judiciary Committee Chair) in ensuring that the process was as bipartisan as possible - deliberately "exorcising the ghost of Andrew Johnson's partisan impeachment." This strategy "made swaying the undecideds possible." This the subpoena resolution passed 33-3, and the first and second articles of impeachment passed the committee 27-11 and 28-10.

Peter Baker recounts the third case - the hyper-partisan impeachment of Bill Clinton 25 years later. "It exposed and deepened the corrosive, media-saturated partisanship of a new era." It "was not so much a search for facts or even a debate about what this generation of Americans believed constituted high crimes and misdemeanors than it was another political contest to be won or lost." Meanwhile, Clinton's popularity only increased during the scandal. "The public delivered its own verdict." The "almost pornographic precision" of the independent counsel's report "was a public humiliation but a political boon" for Clinton, helping him to "portray it as an illegitimate and offensive exercise." Whereas an incumbent president's party typically loses seats in a president's sixth year, in 1998 the Democrats won seats in the House (the first time since 1822).

In the final chapter, Jeffrey Engel brings the story into the present, in which impeachment talk seems to have become routine, as "more Americans than ever have become sore losers, willing to kick over the playing board rather than play out a poor hand." Comparing the three cases, Engel argues that a president impeached for purely personal transgressions is least likely to be convicted in a Senate in which no party has a supermajority. But, if as with Nixon, the transgressions are more tied to misuse of presidential power, then - assuming the evidence is widely accepted - he faces a real risk. Engel adds that such a consensus is less likely today. Finally, there is the Johnson-like situation in which the circumstances prompt Senators to break with their party - a situation unlikely to occur today. "It would require a genuine constitutional crisis of the sort Johnson's opponents generated, couples with a clear train of irrefutable evidence agreed upon by all sides such as sunk Nixon, and then frosted by a president's wild unpopularity, the very opposite of Clinton, for his judges in any impeachment trial to make their vote anything more than a referendum on the prior election's results."

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