Monday, March 15, 2010

Domesticating Assassination

By Mike Dorf

A fascinating new article (to be published in the Minnesota Law Review) by my colleague (and my co-convener of the Cornell Constitutional Law & Theory Colloquium) Josh Chafetz propounds this provocative thesis: If you want to know whether a President is legitimately impeachable, ask whether, under classical theory, he would have been legitimately subject to assassination.

Much of the paper is a work of history, showing how a few paradigm cases--especially the assassinations of Julius Caesar and Charles I---would have necessarily informed the framers' thinking about what sorts of substantive behavior in a ruler constitute tyranny worthy of removal. Chafetz also explains, commonsensically enough, that the framers saw assassination as a procedurally defective mechanism. Another elegant part of the paper shows how John Wilkes Booth--son of Junius Brutus Booth, who was named for a classical assassin---was well aware of the classical standards for tyrannicide. Chafetz concludes (also sensibly) that Booth substantively misapplied those standards and, of course, acted illegitimately in assuming for himself the power to decide President Lincoln's fate.

Turning to examples of impeachments, Chafetz thinks that the Reconstruction Senate made the right call in not removing President Johnson, that Nixon was removable, and that Clinton was not. I agree with each of these assessments. As Chafetz puts it with respect to Clinton, under the classical standard, tyrants lost their lives for making too much of their office, but Clinton's tawdry behavior made it too little. In the words of his own critics, Clinton "diminished" the Presidency.

The illumination that Chafetz shines on the question of impeachability, and the inherently interesting nature of the thesis, make this paper well worth reading. Nonetheless, I think a puzzle remains about how to integrate the pre-Constitution traditions with the actual text adopted, which makes the President (and VP and other civil officers) impeachable for "treason, bribery, or other high crimes and misdemeanors." One who accepts bribes--imagine a President Blagojevich--hardly makes the office "too big." Yet he is plainly subject to impeachment and removal. And if one of the two express criteria for impeachment and removal is a crime of diminution of the office, it's not clear how much of the older tradition governing assassination was incorporated by the impeachment clause.

In the end, Chafetz would not much disagree. He is not offering a definitive guide for modern interpretation of the impeachment clause but instead some background that can aid in making sense of the provision. During the Clinton impeachment, the constitutional arguments of both sides about what comprises "other high crimes and misdemeanors" were largely self-serving. Should Congress some day have a serious debate about the subject, this historical context would be enlightening.