Article | Consitutional Law
You’re Fired: The Original Meaning of Presidential Impeachment
by James C. Phillips* & John C. Yoo†
From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1191 (2021)
Keywords: Impeachment, Mueller Report, Federalist
In 2020, for just the third time in its history, the Senate conducted an impeachment trial of the President. While the 2020 case of President Donald Trump presented different facts than those of President Andrew Johnson in 1868 or President Bill Clinton in 1998, the Senate rendered the same verdict of acquittal. Initial investigations had probed whether President Trump or his campaign had coordinated with Russia to influence the 2016 elections, and then pursued the possibility of obstruction of the investigations themselves. But when the Justice Department decided that it could not indict a sitting President, Congress focused its inquiry on whether President Trump had withheld foreign aid from Ukraine until its leaders launched an investigation into his opponent in the 2020 election, then-former Vice President and current President Joseph Biden.
Whether Congress could constitutionally remove President Trump through impeachment raises questions as old as the Republic and facts as new as social media. The Constitution uses language to define the grounds for impeachment, such as “high Crimes and Misdemeanors,” that remains a mystery today. Does impeachment require a federal crime, or can it include abuses of power and obstruction of Congress? How would Congress define these “high Crimes and Misdemeanors” in a neutral way that would not deter future Presidents from invoking their legitimate authority or unduly place the executive under legislative control? Can Congress remove the President because of a good-faith disagreement over the scope of executive power or the meaning of the Constitution itself? Even if impeachment included noncriminal acts, does the Constitution require that the offenses rise to a level of seriousness that justify removal? President Trump’s case raised the further question whether Congress could remove the President for actions that had a plausible public interest, or whether the legislature need only find that the President had pursued personal interests as well. The 2020 trial finally asked whether impeachment provides the only remedy for presidential misconduct, or whether the Constitution provides other remedies.
This Article seeks to answer these questions by examining the original understanding of presidential impeachment. We undertake this analysis both because the Framers’ work formed the central basis for both the prosecution and defense cases during the President Trump’s first impeachment and because other guides to constitutional meaning are lacking. As the Supreme Court has decided that impeachment qualifies as a “political question” outside Article III’s case or controversy requirement, these questions have no legal answers from traditional sources, such as judicial opinions. Practice also provides little help. The House of Representatives has impeached only two other Presidents in American history. In the wake of President Abraham Lincoln’s assassination, Republicans in Congress found their plans for a radical reconstruction of the South frustrated by the new President Andrew Johnson, a Southern Democrat who favored a more lenient peace. In 1868, the House impeached President Andrew Johnson for conducting himself in office in a disgraceful, yet not illegal, manner. President Johnson broke prevalent norms by speaking directly to the people to lobby for legislation and attacking Congress as “traitors.” Congress responded by including an article of impeachment for his unacceptable rhetoric. To strengthen their case, congressional Republicans made it a crime for the President to fire his cabinet officers without their consent—a law that the Supreme Court would later find an unconstitutional infringement of the President’s removal power.
Exactly 130 years later, the House flexed its impeachment powers for only the second time in its history, but over the sordid and banal rather than the high and mighty. Rather than the reconstruction of the nation after a terrible Civil War, the impeachment of President Bill Clinton asked whether the President had committed perjury about his affair with a White House intern, Monica Lewinsky. The President had committed a crime, but the independent counsel, Kenneth Starr, concluded that the Justice Department could not indict a sitting President, much as it would almost two decades later. Instead, Starr referred the case to Congress to decide whether to take action. While the House impeached along a party-line vote, the Senate refused to convict, also on a close party-line vote. It seemed that President Clinton’s argument that he had only lied about sex and had not committed any harm to the nation on a par with treason or bribery, seemed to carry the day. But the partisan nature of the vote also suggested that impeachment and removal would become a test of party discipline, in that Presidents would likely survive so long as they could maintain the support of thirty-four Senators of their party.
A third President, Richard Nixon, likely would have faced impeachment and removal had he not resigned on August 9, 1974. Both a special counsel and the House had launched probes into a burglary of Democratic Party offices at the Watergate Hotel during the President’s reelection campaign. After the Supreme Court ordered President Nixon to obey a subpoena for White House tapes of meetings where the President had allegedly ordered the cover-up of the break-ins, the Judiciary Committee reported three articles of impeachment to the full House. President Nixon resigned before the House could vote but only after he had met with delegations of Republican congressmen who told him that he would likely lose the votes in Congress. While the committee had considered a wide variety of charges, such as bombing Cambodia without congressional authorization and tax cheating, in the end it recommended impeachment only for obstruction of the special counsel investigation, impeding the House’s probe, and for violating the individual rights of his political enemies through misuse of the CIA, FBI, and IRS. Unlike the Johnson and Clinton examples, however, President Nixon’s case never came to a vote in the House, not to mention a full trial in the Senate. It is difficult to conclude, therefore, that President Nixon’s resignation creates some kind of precedent in the way that the 1868 and 1998 examples might.
It is not even clear that the Nixon case or even the Johnson and Clinton impeachments should create any precedent, in a judicial sense, for Congress. In both the Johnson and Clinton cases, the Senate refused to convict. It could have found that the House had not “proved” its facts, though in both cases the facts seemed fairly clear. President Johnson had indeed fired his Secretary of War without the consent of Congress; President Clinton had lied to prosecutors in a deposition recorded on video. If the facts were proven, then the Senate must have acquitted because they did not amount to high crimes and misdemeanors as defined by the Constitution. But the Senate leaves behind no written opinion to explain its decision because it acts much as a jury in a criminal trial to solely determine conviction. Therefore, we can draw no firm legal precedents from these earlier impeachments.
A previous Senate, moreover, could not bind a future Senate to its interpretation of the constitutional standards on impeachment. One Congress generally cannot bind a future Congress; as with all three branches of government, Congress can simply undo any action by a past Congress by passing a repealing law or rule. The Senate that tried President Andrew Johnson may well have concluded that it should not remove a President for exercising the executive power to fire cabinet officers. It could have believed that the exercise of constitutional power could not qualify as a high crime or misdemeanor, or it could have thought the President had to actually violate federal criminal law. But the Reconstruction Senate never took a vote, issued an opinion, or enacted an internal rule that interpreted the standard for impeachment. Even if it had, a contemporary Senate could change any rule or opinion by majority vote, just as the Senate changed the filibuster rule to exclude judicial and cabinet appointments. Senators who wanted to follow the Johnson or Clinton impeachments as some sort of precedent would have to appeal to tradition, rather than any legal rule, to govern a Trump impeachment.
Without any legal precedents, or even any system of binding practice, the original understanding of the Constitution becomes magnified in importance. The Constitution does not provide for the trial or punishment of a sitting President by prosecutors or a regular court. Instead, the Impeachment Clause creates a means to remove “the President, Vice President, and all civil Officers of the United States.” It vests the power to impeach in the House and specifies no vote requirement, so we have always assumed it occurs by majority vote. Impeachment amounts to an indictment in a criminal case, in which prosecutors decide they have enough evidence to bring a prosecution before a jury. Vesting the power in the House, rather than prosecutors or judges, could suggest that impeachment will not fall solely within the preserve of law, but will involve politics as well. Without any reading of the Impeachment Clauses based on legal authorities, Congress might allow politics to overwhelm law in its indictment and trial of Presidents. Then-House Minority Leader Gerald Ford, for example, defended the impeachment of Justice Douglas because “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Our analysis reveals new sources of materials that make the first Trump impeachment more complex than presented in the trial, debates, and media commentary. Contrary to the claims of President Trump’s defense, we find that the Framers understood “high Crimes and Misdemeanors” to include conduct that went beyond the violation of federal criminal law. Such offenses could include abuse of power; but we also conclude that these acts had to inflict serious harm upon the nation. A President could commit a crime, but it would not impose sufficient injury upon the public to justify removal (as with the Clinton example). A President could also commit no crime, but his misconduct or negligence could so harm the nation as to justify removal from office. We also find that the Framers were so worried that Congress would turn impeachment toward partisan political purposes that they erected the two-thirds requirement for conviction to preserve executive independence. Instead of impeachment, the Framers expected that elections would provide the primary check on presidential misconduct.
This Article proceeds in three parts. Part I reviews the investigations into President Trump, his first impeachment and trial, and his acquittal. Part II uses both new and old techniques to recover the history of the drafting and ratification of the Constitution. We use computerized textual analysis—corpus linguistics—of British materials pre-dating the Constitution’s framing to analyze what those of the founding generation would have believed the phrase “high Crimes and Misdemeanors” meant. We then examine the drafting and ratification of the Constitution to understand how the Founders expected the Impeachment Clauses to work. Part III draws forth lessons from this history and applies them to the issues raised by the Trump impeachment.
* Assistant Professor of Law, Dale E. Fowler School of Law, Chapman University. We received helpful comments from Jesse Choper, who has now witnessed seventy-five percent of all presidential impeachments. The authors wish to thank Francis Adams, Min Soo Kim, Darwin Peng, David Song, and the research librarians at Chapman University’s Fowler School of Law for research assistance.
† Emanuel S. Heller Professor of Law, University of California at Berkeley Law School; Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution, Stanford University. Professor Yoo thanks the Thomas W. Smith Foundation for support.
. Nixon v. United States, 506 U.S. 224, 253 (1993).
. See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 87 (1973).
. Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229, 232 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009).
. Myers v. United States, 272 U.S. 52, 176 (1926).
 U.S. Const. art. II, § 4.
. Kenneth C. Davis, The History of American Impeachment, Smithsonian Mag. (June 12, 2017), https://www.smithsonianmag.com/history/what-you-need-know-about-impeachment-180963645 [https://perma.cc/56EW-YKLU].