Impeachment Isn’t a Popularity Contest

Now that President Clinton has admitted he “misled” us regarding his relationship with Monica Lewinsky, the pundits and experts are telling us that his fate is now before the “jury” of the American people. As Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, said a few weeks ago, the “American people . . . might be willing to allow him to stay on as president.” Yet all the experts know that the only way to remove a president from office is for a majority of House of Representatives to impeach him for “treason, bribery, or other high crimes and misdemeanors,” and two-thirds of the Senate to convict him. Hatch’s presumption, apparently widely shared, is that Congress on this momentous issue will simply defer to the public judgment, measured, one would guess, by public opinion polls.

We would do well here to recall lessons from the only time in our history when an impeachment proceeding against a president reached the stage of trial, which was a few years after the end of the Civil War. There is every reason to believe that had the Senate of 1868 deferred to public opinion, the immensely unpopular Andrew Johnson, a Democrat who came to office after Abraham Lincoln was assassinated, would have been removed. This might have permanently crippled the constitutional balance between the legislative and executive branches by allowing a partisan Congress to oust a president merely because of policy conflicts.

In “Profiles in Courage,” Sen. John F. Kennedy devoted a chapter to extolling the virtues of seven Republican senators who defied their party and their constituents, despite unrelenting pressure and venomous personal attacks, to vote against Johnson’s conviction. If just one had voted otherwise, Johnson would have been ousted. So unpopular were the actions of these senators that none was ever returned to the Senate by the voters. This was the ultimate political sacrifice--and without the eventual fame that sometimes accrues to those who act heroically. How many Americans could identify even one of them: William Pitt Fessenden of Maine, Joseph Smith Fowler of Tennessee, James W. Grimes of Iowa, John B. Henderson of Missouri, Edmund G. Ross of Kansas, Lyman Trumball of Illinois and Peter Van Winkle of West Virginia?

So heated were the public passions on Johnson’s impeachment that the day of the crucial vote in the Senate, the crowd in the gallery, thinking incorrectly that Sen. Grimes had died--he had suffered a paralyzing stroke just two days before--and knowing him to be opposed to conviction, broke out in song cheering his death. But with the help of four friends, Grimes made his way into the Senate chamber and, as Kennedy reports, “struggled to his feet and in a surprisingly firm voice called out ‘not guilty.’ ” For this act of moral and physical courage, Grimes was “burned in effigy, accused in the press of ‘idiocy and impotency’ and repudiated by his state and friends.”

Why had this senator, a bitter political foe of the president, sacrificed so much to keep his political enemy in office? Before he died, Grimes told a friend that he thanked God for giving him “the courage to be true to my oath and my conscience. . . no power could force me to decide on such a case contrary to my convictions.”

The oath to which Grimes referred is required by the Constitution in an impeachment trial, although the words are not specified. When the 54 members of the Senate sat as the jury in the trial of Johnson, Chief Justice Salmon P. Chase, the presiding officer, swore them all “to do impartial justice.”

Needless to say, “impartial justice” and public sentiments do not always coincide. If an immensely unpopular president has not committed “high crimes and misdemeanors,” then he should not be removed from office, despite his unpopularity. Conversely, if a popular president has indeed committed such offenses, then he should be removed, despite his popularity. For the members of Congress to throw this issue onto the lap of the American people is to abrogate perhaps their highest constitutional duty and, in the process, to play directly into the hands of those who have mastered the craft of shaping public sentiments--what Alexander Hamilton called in another context “the little arts of popularity.”