Is He Too Popular to Impeach?

In 1868, President Andrew Johnson was impeached in one of the most outrageous legislative acts in history. Johnson was a grossly unpopular president: a Southern politician who succeeded an assassinated president after the Civil War. Johnson protected his native South from harsh retribution by the so-called Radical Republicans and was widely reviled by the public as pro-Southern. Radical Republicans called for his removal and used his unpopularity to distract the House from its constitutional obligations.

The Johnson case came to mind during the opening defense statements for President Clinton in the impeachment hearings. The White House has adopted a new defense to impeachment: President Clinton is simply too popular to impeach. This presents Congress with the inverse of the Johnson case, in which the House voted to impeach an unpopular but innocent president. In the current case, Congress must vote on a popular but guilty president. The question is whether the underlying moral choice is any different.

The White House argument is straightforward. Since Democrats control almost half of the votes in the Senate and the president remains popular despite his apparent crimes in office, removal by the Senate is extremely unlikely. Where it is unlikely that the Senate would convict, the White House insists that impeachment is both unconstitutional and unethical. In fact, various law professors called forth by the White House have argued that, even if House members decide Clinton has committed high crimes and misdemeanors, members should still vote against impeachment.

The White House argument suggests that there is some central moral or constitutional difference between the Johnson and Clinton arguments, when both are examples of politics overcoming principle. There is none.

In reality, the Clinton vote may actually set more dangerous precedent than the abuses in the Johnson case. There are many crimes that are popular, either because of the popularity of the defendant or because of the unpopularity of his victim. Moreover, it would be entirely possible for a guilty president to head a party in total control of the Senate. Should the House refuse impeachment because of the impossibility of conviction in such cases?

While the White House has cloaked this argument in the words of the framers, the argument is better suited to a John Gotti than a John Adams. The argument ignores the fact that impeachment serves a purpose beyond removal.

Impeachment and removal are distinct issues given to distinct houses of Congress. Impeachment simply means the referral of accusations to the Senate, which is given the sole authority to try such issues. Thus, the House does not convict but merely accuses. In performing this accusatory function, the House plays an important role in deterring presidential misconduct. Framer James Iredell spoke of the importance of the House impeachment authority as a deterrent. Iredell explained that while a president “may be a man of no principle, the very terror of punishment will perhaps deter him.” Impeachment is the process by which presidential misconduct is detected and defined within the constitutional system.

Regardless of whether a president is removed, the House plays a critical role in maintaining the line for presidential misconduct. Articles of impeachment serve to define certain conduct as incompatible with a president’s office and for which a president may (but not necessarily must) be removed. The framers anticipated that many impeachments would not result in removal. They created procedures to weigh against removal in the Senate and expected few impeachments to succeed.

It is one thing for the Senate to decide not to remove in the national interests. It is an entirely different matter for the House to decide that certain crimes are not impeachable. It is for this reason that the quotes used by the White House to suggest that the framers viewed impeachment as “political” are entirely directed to the Senate, not the House. The Senate can decide to retain a president, but only after the president has been called to account for his conduct.

Yet even if impeachment were only about removal, the White House argument would still fail any moral or historical test. The White House has argued that no ethical prosecutor would prosecute a case that she knew would fail before a jury. I hope that this is not the case. If a prosecutor were convinced that an individual was guilty of a serious crime, it should not matter if the popularity of the defendant or the popularity of the crime would make conviction unlikely.

Imagine if a grand jury (which performs a role similar to the House) refused to indict a defendant based on the likely outcome of the case. In the South, many prosecutors used this amoral argument to explain why they would not prosecute cases involving black victims and white killers. Prosecutors simply argued that a jury would not convict and therefore there was no point to bringing a case. Yet it was a greater loss to the system not to force the question, not to call those responsible to the bar of justice. Otherwise, only those felons who are unpopular are brought to justice in a system of pure moral relativism.

In some ways, the most recent argument is quintessentially Clintonesque. Clinton has long defined morality by its consequences. Apparently, the same relativism can now be applied to impeachable offenses: It is no longer whether a high crime or misdemeanor was committed, but by whom.