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.

11 comments:

Hank Morgan said...

Very interesting post. I must confess to some cynicism, however, when you suggest in the last sentence that a future Congress might have a "serious debate" about the criteria for Presidential impeachment and removal.

Because two parties dominate national politics, the President is always the leader of one party, and the other party always has an incentive to oppose the President. Thus, any debate about a Presidential impeachment is nearly certain to be dominated by self-serving statements. All the relevant actors, by definition, are interested in the outcome.

It appears that the framers did not realize that two-party contests would come to define American politics. If there were multiple parties, or a diverse array of "factions," in Madison's terms, it would be theoretically possible for there to be a consensus opinion of uninterested actors during a Presidential impeachment. But under the system as it actually works, any Presidential impeachment will almost certainly polarize along partisan lines.

The only exception would be a President who engages in behavior that so obviously meets the standard for impeachment that no one dares defend him/her. But such a case would offer little guidance as to the fine line between run-of-the-mill bad behavior and an impeachment-worthy offense.

Michael C. Dorf said...

Hank,

Your point about the framers is well taken. Here, as elsewhere, their failure to anticipate the rise of political parties made the system function quite differently from what they expected.

That said, I don't think it's inevitable that Senators will support a President of their own party, even in close cases. In an era of primaries and regional differences on ideological matters, Senators and Presidents do not necessarily have the same interests (as President Obama learned in the health-care debate even before Scott Brown's election). Suppose a President who is generally unpopular or has otherwise alienated some number of his own party, with a potentially popular VP waiting in the wings to make a fresh start. It's hardly fanciful to suppose in these circumstances that some critical mass of the President's party would see their political duty/advantage as unclear, and thus be moved by--and make--arguments of principle. And vice-versa with respect to the opposition party.

Michael C. Dorf said...

I should add that in my hypothetical, I am also assuming that the President stands accused of doing something that is arguably an impeachable offense.

michael a. livingston said...

OK but make sure no one takes your title too literally . . .

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