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High Crimes and Misdemeanors · Donald Trump · Constitutional Law
Background
Impeachment is the constitutional process for removing the president, vice president, and other civil officers of the United States from office. Across multiple episodes of The Bob Zadek Show, guests Gene Healy and Timothy Sandefur examined the historical origins, constitutional text, and practical application of the impeachment power, disagreeing on how frequently it should be used but agreeing that it is poorly understood.
Historical Origins and Scope
Gene Healy, speaking on the show, traced impeachment to a 400-year history before it entered the U.S. Constitution, dating from the 14th century in England, where Parliament considered it a guarantor of the rights of the people and of Parliament itself. That history, he said, informed the framing of the Constitution and of impeachment provisions in state constitutions. He noted that impeachment tends to become a subject of major discussion in the United States only when there is a president in the crosshairs, but argued that one’s view of how broad or narrow the causes of impeachment should be ought not to turn on what one thinks of any particular president, because he will not be the last. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Healy also addressed the question of which officials are subject to impeachment. He observed that the bulk of discussion at the Constitutional Convention concerned the presidency, and that James Madison at least was not clear on whether impeachment applied to congressmen and senators. That question, Healy said, was decided pretty much in the first impeachment, in 1797, that of Senator William Blount. In the Senate trial there was no vote of conviction, apparently because the Senate concluded it lacked jurisdiction, a senator not being 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 the remedy was extended further than just the president. Which Impeachment Movie Are You Watching? (2019)
Grounds for Impeachment
The constitutional standard of “treason, bribery, or other high crimes and misdemeanors” was a recurring subject. Bob Zadek, in his introduction to a 2018 episode, said the Constitution gives only a few words of guidance on impeachment and perhaps very little guidance at that. Healy, in response, emphasized that how broadly or narrowly one views the causes of impeachment should not depend on one’s opinion of the sitting president, warning that raising the bar to save a loved president or lowering it to target a hated one may lead to regret when a different president comes along. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Timothy Sandefur, discussing a libertarian constitution, argued that the original Constitution was perfectly fine on impeachment but that misconceptions had grown up around how it operates. His view was that there should be a heck of a lot more impeachment than has ever occurred in American history, not just of presidents but of judges and others as well. He said it is perfectly legitimate, and should be done more often, to impeach a president simply because his behavior renders him unfit for office. To that end, he proposed amending the Constitution to add, after “treason, bribery, or other high crimes and misdemeanors,” the phrase “or other behavior that renders them unfit for office.” He offered the hypothetical that under the theory that a crime is required, a president could leave the country, move to Sweden, and refuse to answer his telephone, and then could not be impeached because he had committed no crime—a result he called ludicrous. Asked whether the behavior must occur while in office, Sandefur said pre-election behavior is a perfectly legitimate target and that his proposed language would allow impeachment for it. Timothy Sandefur on The Libertarian Constitution (2021)
Obstruction of Congress
Healy discussed the article of impeachment known as obstruction of Congress, a phrase Bob Zadek said he had never really heard before. Healy explained that Article I of the Nixon impeachment and Article II of the Clinton impeachment concerned obstruction of justice in the criminal process sense, whereas the second article the House passed against Trump was obstruction of Congress. That article, Healy said, was based on an article of impeachment 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 decide for himself what he will provide. Healy noted this was the most controversial of the three articles 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 did not say he would not cooperate at all until the very end, whereas Trump from the beginning of the impeachment inquiries said he thought the investigators were biased and the process illegitimate and that he would not give them anything. Which Impeachment Movie Are You Watching? (2019)
The Indispensable Remedy
Healy’s book Impeachment: The Indispensable Remedy and his article “Don’t Freak Out” framed much of the discussion. In the 2019 episode, Healy said he wanted to throw cold water on the hysteria over impeachment, which he saw on both sides of the aisle. He argued that historical experience with presidential impeachment shows the scare stories do not come true: it is not that disruptive, does not paralyze government, does not wreck the economy, and is not a national trauma. It has rarely done serious harm and on at least one occasion, in 1974, did a lot of good. He suggested that treating impeachment as a world-historical, earth-shaking, emotional event is itself a reflection of the cult of the presidency. Which Impeachment Movie Are You Watching? (2019)
Healy also addressed the Founders’ view of presidential power. He said the bulk of 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 impeaching the president. Madison, he said, argued that impeachment was indispensable partly because the presidency is the one office headed up by one man; if a judge goes wrong or a congressman or two are corrupt, the multiplicity of members dilutes the damage, but incapacity, negligence, or perfidy in the presidency could be fatal to the republic. Healy argued that this view becomes more compelling as the office gains vast new powers, and that the argument that too much depends on the presidency to remove its occupant cuts the other way: the one official with nuclear weapons and control of federal law enforcement, if unfit, is a continuing danger. Which Impeachment Movie Are You Watching? (2019)
Across episodes
The episodes show a consistent treatment of impeachment across episodes, with Gene Healy appearing in 2014, 2018, and 2019 and Timothy Sandefur in 2021. Healy’s position remained that impeachment is an indispensable remedy that should be viewed with less hysteria, while Sandefur advanced a distinct proposal to expand the grounds to include behavior rendering an official unfit for office.