There is an established genre of attacks on the Constitution arising from its failure to produce certain policies at a given moment.
Of all the objections to giving the power of impeachment its full proper constitutional scope, perhaps the most common — and probably the most specious — is that impeachment should not be allowed to “overturn the result of an election.”
I addressed two other objections last week to giving the impeachment power its full due: the specter of abuse, and the fear that a too-serious impeachment power might too closely resemble a parliamentary vote of “confidence” or “no confidence.” The “overturning-the-result-of-an-election” category of objection overlaps somewhat with these others, but has a distinct focus.
The argument, presented in various forms, is that impeachment is generally improper (or disfavored) where it would have the result of displacing the elected choice of the people through democratic constitutional processes. In a democratic republic, the argument goes, elections are the proper remedy for believed improper behavior or political misconduct by elected officeholders. Moreover, as to pre-office misconduct, a subsequent election of an officeholder whose questionable pre-office conduct or character was known and at public issue, in a sense validates — or could be construed as conferring the electorate’s implicit “consent” or at least acquiescence to — the office-holder’s supposed prior improper conduct. Thus, the results of elections should, in effect, shield or immunize the officeholder from impeachment based on conduct known by the electorate at the time of the election, or consistent with a candidate’s known character.
The Least Persuasive Objection
So the argument goes. But while the concern about impeachment “overturning an election” is a familiar one and reflects an understandable intuition, it is in the end perhaps the least persuasive objection to a broad understanding of the impeachment power. This is so for several reasons.
First, as a preliminary matter, it may be useful to respond to the logically antecedent question: whether pre-office conduct can provide a legitimate constitutional basis for impeachment at all — that is, whether instead the power of impeachment is limited to an officer’s misconduct in office. The short answer is that impeachment is limited to punishments directed at office holding and officeholders, but not necessarily to misconduct engaged in while holding office. The impeachment power thus reaches pre-office-holding misconduct of civil officers.
The textual, historical, and logical case for the impeachment power reaching pre-office-holding misconduct is strong. The text of Article II, section 4 is not limited to an officer’s misconduct specific to the holding of office, that is, for offences employing or making use of the powers of a civil office. As we have seen, the term “high Crimes and Misdemeanors” extends to so-called “political” offenses — misconduct specific to the exercise of power conferred by office. But it is not limited to wrongdoings of such a nature, but can include so-called “private capacity” crimes or misconduct. A simple example: first-degree murder. Can there be any doubt that, were a president or vice president to willfully and deliberately gun down a political adversary (or anyone else) in broad daylight (or at dawn), that such conduct would constitute an impeachable offense?
Likewise, the text does not itself limit impeachable offenses to those committed while in office. Imagine that it were discovered that a civil officer had committed first-degree intentional murder before assuming office, but that his guilt had not been detected at the time of his election or appointment to office. As far as the text is concerned, there is no reason he could not be impeached and removed for office for such an act.
The Constitutional Convention deliberations over impeachment confirm exactly this understanding. A classic illustration of impeachable pre-office misconduct, employed by several delegates to the Constitutional Convention, was a president’s having gained office through corrupt means, such as by bribing electors. Such conduct obviously would have occurred prior to holding office for the term in question. (For a non-incumbent, prospective office-holder, such misconduct could occur only before taking office. And the Framers’ illustration did not distinguish between incumbents and non-incumbents engaging in bribery.)
The “bribing electors” example seriously undermines the “impeachment-should-not-be-used-to-overturn-elections” argument. The whole point of impeachment on such ground would be to “overturn,” so to speak, the result of an election. Moreover, the illustration of bribing electors to gain office also serves to refute the badly mistaken notion that impeachment is limited to offenses specifically involving misuse of the powers of office. If impeachment rightly can reach pre-office conduct, such a restriction makes no logical sense.
Of Course Impeaching Elected Officials “Overturns” Elections
A second response to the impeachment-should-not-overturn-elections objection is even more direct: Impeachment was specifically intended as a procedure that would remove elected officials — notably and specifically, presidents and vice presidents. Since presidents are elected officials, impeaching a president will almost always displace the electorate’s choice and thus “overturn an election.” That is a simple consequence of the decision to make presidents and vice presidents impeachable. In a sense, “overturning the result of an election” — including a presidential election — was understood to be the ordinary, necessary, and intended result of the decision to make presidents and vice presidents impeachable in the first place.
Perhaps the “overturn elections” objection is nothing more than a repackaging of the objection that the impeachment power might be abused, used for insubstantial reasons, or employed purely for partisan or policy purposes — points I addressed last week. But to the extent the “overturn elections” objection purports to be anything more than that, it is either empty rhetoric or something utterly absurd: a claim that presidents cannot be impeached at all — because that would “overturn” their elections.
Aside from the case of President Andrew Johnson, who ascended to office from the vice presidency upon Lincoln’s assassination, the nation’s two major presidential impeachment efforts could fairly be said to have sought to “overturn” the results of elections. Indeed, they sought to upend rather substantial presidential electoral victories by the men involved. Richard Nixon, who resigned in 1974 rather than face likely impeachment and removal, had been reelected in 1972 in one of the largest electoral landslides in history. Bill Clinton, impeached in 1998 (and acquitted in 1999), also had won re-election decisively in 1996. While Andrew Johnson had not been elected president, that fact hardly refutes the general point: unelected presidents were expected to be the exception, not the rule; and in a sense, Johnson’s successful removal from office would have overturned the result of his election to be vice president.
The Convention’s Rejection of the Objection
The debates of the Constitutional Convention confirm this conclusion, too. The delegates specifically considered — seriously debated — the proposition that the president should not be subject to impeachment because regular elections would serve as a sufficient check against misconduct. At the Constitutional Convention, Gouverneur Morris and Rufus King vigorously advanced this view, at least initially. The Convention explicitly rejected this position. It did so on the ground, first, that a president might engage in serious misconduct requiring his removal from office while much of his four-year term remained. Further, if a president could only be removed by an election he might engage in extreme misconduct to assure his re-election and resulting immunity from removal. Put bluntly: elections were thought not to be a sufficient check in some cases, and might backfire dramatically in others if that were the only constitutional way to remove a president. Impeachment was therefore needed as an additional safeguard.
These rejoinders persuaded even some who had initially thought elections a sufficient remedy for misconduct. Gouverneur Morris declared that his mind had been changed as a result of his colleague’s arguments. (Imagine that: a political actor actually changing his mind in response to reasoned argument!) In fact, Morris ended up supporting a broad standard for impeachment of the president, extending to “treachery,” “incapacity” and “[c]orrupting his electors.” The Framers thus unequivocally rejected arguments that impeachment would be improper because it would tend to interfere with the power of the people or the results of elections.
In addition — while not specifically mentioned in the Convention debates — there is the further rejoinder that elections are no remedy at all for a miscreant president who is not running for reelection: you can’t vote out someone who isn’t trying to stay in. One reason this concern was not raised more prominently in the Constitutional Convention debates probably was that under the original Constitution the president was perpetually re-electable. The Twenty-Second Amendment, limiting the president to two terms, was not adopted until 1951.
A Preposterous Proposition
Third, the “impeachment-should-not-overturn-election-results” argument is not only wrong, but has matters exactly backwards. The Constitution is the supreme law of the land. Its provisions prevail over any other source of authority. The Constitution’s allocations of rights and powers cannot be overturned by any act of any branch or level of government, nor can they be limited or set aside as the result of any election. Plainly, then, the constitutional power of impeachment cannot be overturned, waived, or limited by the outcome of any election. Election results do not alter the scope of the constitutional power; elections no more repeal, rescind, or revise constitutional grants of power to Congress than they can overturn or eliminate constitutional rights. Whatever the scope of the constitutional power of impeachment is, it is. An election cannot alter it.
It follows that whatever offenses are constitutionally impeachable remain constitutionally impeachable notwithstanding the result of even seeming electoral approval. If an officer’s conduct otherwise falls within the range of impeachable “high Crimes and Misdemeanors,” electoral support for or approval of such conduct or popular support of the official does not negate the constitutional power of impeachment. Elections do not constitute popular grants of “immunity” from impeachment, superseding the Constitution itself.
Nor does it seem proper for congressional judgment in the exercise of this constitutional power to turn on the result of an election. If a president (or other official) has engaged in serious conduct otherwise warranting his impeachment and removal, the fact that he won the last election simply should not matter any more than any other raw, low-political consideration should matter.
The suggestion that an election victory somehow immunizes or excuses the elected official’s wrongdoing is actually downright ludicrous, if one gives it the slightest thought. A simple and by now familiar hypothetical illustrates: Imagine a president who was elected notwithstanding that it was known that he had committed multiple intentional homicides. Perhaps the public, or some segment thereof, actually liked a man who had shot and intentionally killed several innocent people in broad daylight, on a street corner of a major American city. Maybe they liked his chutzpah and thought it a useful, admirable trait in a U.S. president. Or, equally horrifying, imagine a president who was elected notwithstanding that it was known — perhaps he had even boasted — that he had committed multiple sexual assaults.
Would this really mean that that person, if elected, could not constitutionally be impeached for that conduct or that the impeachment power is not properly exercised in such an instance because the public has “waived” its objection or implicitly “ratified” such conduct? The proposition that the murderer or sexual predator is constitutionally unimpeachable, or that he ought not be impeached — that his election has somehow “immunized” him from impeachment on such ground, even if otherwise proper — is, I submit, preposterous.
Impeachment as a Check on Elections
The point can be put more strongly yet, exactly reversing the objection: The power of impeachment is not only not overturned by an election, but one might say precisely the opposite: that the constitutional power of impeachment legitimately operates as a constitutional check on an improvident election. If the people’s electors elect a crook, whether knowingly or unwittingly, the constitutional power of impeachment properly may be employed to check — to remove — the people’s chosen crook.
This is as it should be. It is merely the proper exercise of a constitutional power, intended as a vital part of our constitutional system.
To object that the use of this power is “anti-democratic” is to miss the point. Ours is a constitutional republic: the provisions of our written constitution exist as limitations on — constraints that channel and qualify — the results of democracy. Where the Constitution checks democracy, those checks must be given effect as a fundamental part of our system. It is no more “anti-democratic” to use, legitimately, the power of impeachment to remove a popularly elected official than it is “anti-democratic” to use, legitimately, the power of judicial review to overturn an unconstitutional statute adopted by representatives of the people.
Democracy yields to the Constitution, not the other way around.