Wednesday, January 29, 2020

When It is All Over Amend the Impeachment Clauses

By Eric Segall

The United States Constitution is one of the most difficult Constitutions in the world to amend. It takes supermajorities in both the Congress and the states to formally change the document. Yet, it has happened 27 times in our history, and it needs to happen again with regard to the impeachment procedures for the President of the United States.

Constitutional amendments are especially needed and appropriate for the Impeachment Clauses because the Supreme Court has appropriately said that judicial review of impeachments present non-justiciable political questions, so judicial review is unlikely to resolve many unanswered questions.

Article 2, Section 4 provides that "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Article 1, Section 2, Clause 5 of the Constitution provides that the "House of Representatives ...shall have the sole Power of Impeachment.

Article 1, Section 3, Clauses 6 and 7 provide that the "Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present."

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law."

The Trump impeachment has raised many difficult issues that have no clear answers and should be the subject of a constitutional amendment.

What does it mean to say the Chief Justice shall "preside?" What real authority, if any, does he have? What does the word "misdemeanor" mean, and is the commission of a crime necessary for impeachment? Is Impeachment the sole remedy for a President who breaks the law until he leaves office or can a President be indicted while in office?

These open questions should be answered before the country goes through another debacle involving the impeachment of a President. Here are my preliminary takes.

The Chief Justice should not preside. Our nomination and confirmation process for Supreme Court Justices is political all the way down, and most Justices have clear partisan loyalties. In addition, as current events clearly show, the Chief Justice should neither be an ornament nor in charge of an inherently political process.

There are many ways to fix these problems but one might be something like this: "When the President of the United States is tried, the Senate Majority and Minority Leaders shall chose a retired federal judge to preside over the Impeachment. Such a selection shall occur within 10 days after the Articles of Impeachment are transmitted from the House to the Senate. If no agreement is reached within those 10 days, the Chief Justice of the Supreme Court shall designate a retired federal judge to preside."

The word "preside" is highly problematic and defining the term raises difficult and sensitive issues. I think a healthy compromise among many competing concerns might go something like this: "The Judge who presides over the President's Impeachment has authority to rule on motions, requests for witnesses, and documents. Any such ruling is subject to reversal by a vote of 2/3 of the Senators present."

Notwithstanding the claims of the president's defenders, there has been essentially universal agreement that a statutory crime is not necessary for conduct to count as a "high crime" within the meaning of the impeachment clause, but the language itself is hardly pellucid and would benefit from clarification.The Constitution should be amended to explicitly state that "no crime punishable by law is a prerequisite to Impeachment," and that "no President may be indicted for any state or federal crime while in Office but shall be subject to all applicable criminal penalties once out of Office. Any applicable statute of limitations shall be tolled while the President is in Office."

Additionally, I would change Article 2, Section 4 to read as follows:  "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of substantial abuse of Office or the commission of any state or federal crime punishable as a felony." I understand "substantial abuse of office" is imprecise and I'm more than happy to accept friendly amendments to better define impeachable offenses.

There are of course many other ways to bring more clarity and transparency to the impeachment process but we should not be relying on ambiguous text written in 1787 to guide us. We also shouldn't wait until another impeachment to make these changes. It is time to move impeachment of the President into the 21st century.


Joe said...

I'm not sure really how much this really will come up though once you amend the Constitution to address it, perhaps it will come up more. At the end of the day, impeachment is a suspect way in general -- if Trump being removed is so remote, perhaps we are really just rearranging the deck chairs. Impeachment itself should be the real target. Note, e.g., how the lower courts already have set up a mechanism to penalize judges outside of the impeachment process itself.

The Chief Justice presiding is problematic and the federal judge option makes sense. I think history has shown that "preside" here is basically ministerial as is the case when people preside over the Senate generally with the Senate having the power (per its control of its proceedings) to add more teeth. The suggested amendment is okay but I don't know how necessary it really is.

Even Trump's defenders, an extreme bunch. were forced to admit "crime-like" things can be impeached and that too seems of limited necessity. As noted, the replacement is vague too. Basically, the original approach hit a basic truth -- impeachable offenses are an open-ended category (like what "speech" is) and no magic words will stop the debates in the hard cases.

I also don't think there is a need to say the President will not be indicted and that might even give aid to the idea that they cannot even be investigated. I also am not convinced as an absolute rule (the standard murder hypos etc.) that is a good idea. Not enough to put it in black ink like that. The tolling provision is appropriate though can simply be applied by normal legislation. Since the amendment would have to pass out of Congress anyhow, that would seem quite possible.

I question the compelling need -- to the extent amendments require so much effort -- to address this matter per amendment but if it was, I'd probably offer a more substantive amendment to deal with things such as handling judges etc.

James said...

The fundamental question is whether impeachment and conviction is a viable means of removing a president in mid-term. The founders, recognizing that a democracy that cannot remove a chief executive between elections will not long remain a democracy, equipped the constitution with the impeachment clauses. Experience proves the founders recognized the problem but provided a cure that, because of the mischiefs of faction, cannot be administered and therefore does not, and cannot, serve as a deterrent to presidential misconduct. I doubt that clarifying the impeachment clauses would make impeachment a viable remedy for mid-term misbehavior.

I'm beginning to think the only remedy is having the House of Representatives choose the president, and giving the house the power to remove a president in mid-term. That's the parliamentary model, and its wisdom has withstood the test of time. We should adopt it. In the meantime, our only protection from a president gone rogue, from devolving into a de facto dictatorship, is the good character of president. We now know that's no protection.

Joe said...

I think James is likely correct & it is notable that the one big active impeachment going on in England at the time of the Founding (a friend of Jane Austin's family) was not removed, even though Edmund Burke thought he was a serious threat.

Impeachment is not even too often used for judges, though the small number removed (under 20) is a bit misleading since many more resigned before or in the process of impeachment.

Frank Willa said...

Yes, it is time to amend the impeachment clauses. As was understood by having an amendment process; ours is an ongoing quest for a more perfect union. We have always had to adapt to changes and to make laws that address novel circumstances. Many of the suggestions are good and would seem to be effective. I do hope there is the follow through by Congress to benefit the country in the long run; and might even hope changes clarifying the wrongs that will get an impeachment will be an effective deterrent.
In the short term my view is that the prohibition of prosecution of a sitting President should be eliminated. If you murder someone on 5th Avenue, you should be indicted and prosecuted- no one should be above the law, and all citizens should be treated equally under the law. What justifies treating one citizen differently? (the VP is there to assume the office and was part of the ticket that represents the outcome of the election, and begs the question would they vote the same knowing a murder would be committed mid-term?)
Also, make changes to Federal Election Law. Clarify in Subtitle III, Chapter 301, Section 30121, (a)(2) such that solicit is more extensively defined, benefit- as an "in kind"-including opposition research- contribution, and what constitutes interference. Next, in Section 30107(e) make violation a federal felony punishable by up to imprisonment and removal from office, and or disqualification to hold office.
I am sure that my suggestions are not "perfect"(irony intended). But, it is to illustrate that some things may be done with less time and political resistance to try to improve where we find our country now. And because the solutions do address what are an "open-ended category"( as noted by Joe)the product may not be perfect, but better to learn as we go and amend as we go. It may take amendment to stand up to review; but yes now is the time to begin.

Tom said...

When drafting specifications or regulations, I have to look at how well the new rule works in the extreme cases. Trump has become an extreme case- of so much that our country was founded against. The biggest problem is that the Senate (really the GOP) has been his enabler.

So it doesn't matter how well the Constitution explains what is to be done- when you have a large group of renegades who redefine what was in the minds of the founding fathers. IMO, that is what is happening here. This case is being tried in the media- not the Senate. It is a case of who can shout loudest and those with the most followers on Twitter will win.

Frank said...

This Republican Senate would have acquitted regardless of what the Constitution said. In other words, I agree with Tom.