Impeachment is the constitutional process by which federal officials may be removed from office. Across four episodes of the Bob Zadek Show, guests Gene Healy of the Cato Institute and Timothy Sandefur examined its historical origins, its application to presidents and other civil officers, and proposals to reform its standards.
Historical origins and the scope of the power
Gene Healy told Bob Zadek that impeachment had a 400-year history before it made its way into the U.S. Constitution, dating from the 14th century in England, where Parliament considered it a guarantor of the rights of the people and the rights of Parliament. That history, Healy said, informed the framing of the Constitution and of impeachment provisions in the state constitutions. He cautioned that how broadly or narrowly one views the causes of impeachment and the extent of the power should not turn on what one thinks of any particular president, because he will not be the last president. Raising the bar to save a president one loves, or lowering it to target a president one hates, may lead to regretting the standard that was set when a different president comes along. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Healy noted that impeachment tends to become the subject of major discussion in the United States only when there is a president in the crosshairs. He observed that the bulk of the discussion at the Constitutional Convention about impeachment concerned the presidency, and that the longest debate in 1787 on the impeachment power, on July 20th, was entirely with reference to the impeachment of the president. James Madison argued at that debate that an impeachment remedy for the presidency was indispensable because the presidency is the one office headed up by one man; if a judge goes wrong, or if a congressman or two are corrupt, the multiplicity of members dilutes the damage any one of them can do, but incapacity or negligence or perfidy in the presidency could be fatal to the republic. Healy argued that this view becomes even more compelling when the office gains the vast new powers it has gained over more than a century. Which Impeachment Movie Are You Watching? (2019)
Impeachment of other civil officers
Bob Zadek observed that most of the impeachment discussion at the time of the founding was about the president, which he attributed to there having been few federal officials other than the House and Senate, and that each body runs itself. Healy responded that the Founders were envisioning a judiciary, and that Madison at least was not clear on the fact that impeachment does not apply to congressmen and senators. That question, Healy said, was decided pretty much in the first impeachment, in 1797, of Senator William Blount. In the Senate trial there was no vote of conviction, and it appears this was basically because the Senate said it did not have jurisdiction, since a senator is not one of the civil officers of the United States who could be impeached. Healy added that federal judges were certainly in the mix, and that impeachment was a remedy the Founders extended further than just the president. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Obstruction of Congress
Healy distinguished obstruction of justice in the criminal process sense from obstruction of Congress. Article I of the Nixon impeachment or near-impeachment and Article II of the Clinton impeachment concerned obstruction of justice, whereas the second article of impeachment that the House passed against Trump was obstruction of Congress. That article, Healy said, was based on an article of impeachment that the House Judiciary Committee passed against Nixon in 1974—the third article against Nixon, also obstruction of Congress. It rested on the idea that in an impeachment inquiry, the House’s entitlement to information from the president is at its highest and the president cannot just decide for himself what he will provide. Healy noted that this was the most controversial of the three articles the Judiciary Committee passed against Nixon, receiving the fewest votes, only one Republican vote. He added that Trump’s behavior was more sweeping and categorical than Nixon’s: Nixon partially complied, releasing edited transcripts of the tapes Congress wanted and trying to do as little as possible, and not until the very end did he say he was not cooperating at all, whereas Trump from the very beginning of the impeachment inquiries said he thought the investigators were biased and the process illegitimate and that he was not giving them anything. Healy said he thought the Trump article was pretty well grounded. Which Impeachment Movie Are You Watching? (2019)
The “indispensable remedy” and the case against hysteria
Healy’s book is titled Impeachment: The Indispensable Remedy, and Bob Zadek noted that the phrase itself has a rich constitutional history. Healy’s later article, which Zadek summarized as “Don’t freak out about impeachment,” argued that the hysteria over impeachment on both sides of the aisle is unwarranted. He pointed to Nancy Pelosi’s caucus wearing black and to Republicans acting as though the sky would fall, and said that on the rare occasions when there is a serious debate about impeachment—the last time being over 20 years ago—people agonize over the process as though it were a Doomsday device wired into the Constitution. Looking at the historical experience with presidential impeachment, Healy said, none of the scare stories turn out to be true: it is not that disruptive, it does not paralyze government, it does not wreck the economy, and it is not a national trauma. It has rarely done any serious harm and on at least one occasion, in 1974, it did a lot of good. He argued that treating impeachment as a world-historical, earth-shaking, emotional event is itself a reflection of the cult of the presidency and the outsized importance placed on that office. Which Impeachment Movie Are You Watching? (2019)
A proposal to amend the standard
Timothy Sandefur told Zadek that he and his co-authors believed the Constitution as originally written and intended was perfectly fine on impeachment, but that so many misconceptions had grown up around how it operates that it needed to be clarified. Their view, he said, was that there should be a heck of a lot more impeachment than there has ever been in American history, not just of presidents but of judges and others as well. Writing during the impeachment of Donald Trump, they addressed the question of whether a president could be impeached for something other than a crime, or simply for being an unfit president. Many people think impeaching a president simply because his behavior renders him unfit for office would be inappropriate, Sandefur said, when of course it is not—it is perfectly legitimate and should be done more often. Their proposed amendment would use the original language that the president, vice president, and all civil officers shall be removed on impeachment and conviction of treason, bribery, or other high crimes and misdemeanors, and add “or other behavior that renders them unfit for office.” Sandefur illustrated the problem with the existing standard by positing a president who left the country, moved to Sweden, and refused to answer his telephone: under the theory that a crime is required, he could not be impeached, which Sandefur called ludicrous. Asked by Zadek whether the behavior would have to occur while president or could be pre-election behavior, Sandefur said pre-election behavior is a perfectly legitimate target and their language would allow a president to be impeached for it. Zadek asked whether a president could take the oath and then have impeachment proceedings start on the way off the platform, and Sandefur replied that he thought it would be a healthier nation if that were done. Timothy Sandefur on The Libertarian Constitution (2021)
Across episodes: the same questions, argued twice
Impeachment recurs across the excerpts with Gene Healy in 2014, 2018, and 2019, and with Timothy Sandefur in 2021. The treatment shifts in emphasis rather than in doctrine. In the 2014 episode Healy discusses the Blount precedent and the scope of impeachment beyond the president; in the 2018 episode he lays out the English origins and the warning against calibrating the standard to a particular president; in the 2019 episode he applies the framework to the Trump articles of impeachment and argues against hysteria. Sandefur in 2021 advances a distinct proposal—amending the Constitution to add unfitness as a ground—that Healy’s episodes do not address. The excerpts show no direct exchange between the two guests and no development of a shared argument between them.
What the sources do not cover
The excerpts do not state the full text of the impeachment clause, the outcome of any Senate trial other than Blount’s, or the specific conduct underlying the Trump articles beyond obstruction of Congress. They do not give the names of the federal judges impeached in American history, the date or holding of any case on impeachment, or the amendment number on which any case turned. Sandefur’s proposed amendment is described only in the terms quoted; the excerpts do not say whether it was published in a book, an article, or a model constitution, nor what became of it.