Ironies of an Impeachment

In moments of high political drama, it is no easy matter to preserve a sense of irony that, after all, may seem misplaced when so much is at stake. True, some facile ironies are already apparent in the current impeachment proceedings. We know that members of both parties will have to take positions diametrically opposite from the ones they adopted in 1974, when a Democratic Congress was hot on the trail of a Republican president. It was amusing but not surprising when Senate Majority Leader Trent Lott suggested that “bad conduct” might be an adequate definition of an impeachable offense. A quarter-century ago, as a young Republican on the House Judiciary Committee, he favored judging President Richard M. Nixon by a more rigorous standard, one that sounds suspiciously like the standard Democrats now say should be applied to President Bill Clinton.

So, too, Democrats, who then argued that the investigation of the Nixon White House had to precede the definition of impeachable offenses, now have a natural incentive to favor the opposite.

But this is not true irony. As much as we might like our officials to act with consistency when constitutional principles are at stake, that is not what the Constitution requires or its framers expected. James Madison put the crucial point in a famous passage of “The Federalist.” “Ambition must be made to counteract ambition,” he wrote in his brilliant explication of the American system of separated powers. “The interests of the man must be connected with the constitutional rights of the place.” The system was supposed to work, in other words, by encouraging officials to ground their constitutional ideas on their obligations to their offices, not by expecting them to adhere to the same principles regardless of the positions they occupied. Constitutional consistency is the hobgoblin of small political minds.

There are, however, other genuine ironies in our current imbroglio, and examining their sources and content may provide a perspective that our aroused passions sorely need. For if a sense of the ironies of constitutional history does not provide the famous consolations that philosophy promises, it may still enable us to appreciate our predicament more fully.

Here, then, are three ironies that run deeper than the predictable reversal of partisan positions since Watergate.

Irony No. 1: Looking for guidance in Merry Old England. To resolve the current uncertainty over the extent of the impeachment power and the precise meaning of “other high crimes and misdemeanors,” scholarly guns from both sides are scurrying to canvass relevant English precedents. They might not have to do so, had the framers of the Constitution been considerate enough to discuss these questions at length. But, in fact, the framers discussed the issue only twice, and during the first debate (July 20, 1787), they were still assuming the Supreme Court would try impeachments.

In the second debate, on Sept. 8, George Mason of Virginia proposed to add “maladministration” to the two other offenses, “treason” and “bribery,” for which a president could be impeached. When Madison objected that this would leave the president vulnerable to continual oversight by the Senate (now the trial court for impeachment), Mason substituted “other high crimes and misdemeanors,” and the convention quickly adopted his proposal. But neither Mason nor any other member explained what that meant.

Mason was deeply versed in English history, and for that reason the search for clues in English precedent and practice makes sense. Yet, it also entails some formidable risks. Though impeachment dates to the 14th century, its heyday came in the 17th century, an era of civil war, revolution, quasi-military rule, extensive corruption, recurring battles between Parliament and the Stuart crown, the execution of one king (Charles I) in 1649 and the deposition of another (James II) in 1689.

The use of impeachment by the House of Commons was one weapon in these struggles, as much a political threat as anything else. Its real purpose was to chastise officials for misbehavior or actions the Commons found insulting to its own standing. Few impeachments ended in convictions in the House of Lords, which was, and remains, the highest court in the realm. Unlike the emerging U.S. practice of impeachment, which was limited to public officials, the English practice knew no bounds. Citizens as well as officials were vulnerable, and when the House of Lords convicted, it also imposed criminal penalties, including execution.

Even this cursory summary suggests that the purposes and character of impeachment in the two countries, closely linked as they were, differed in significant ways. How much weight, then, should we place on English precedents and definitions? Would “high crimes and misdemeanors” mean the same thing in a republic, where the people regularly chose their governors, as it had in a monarchy where royal officials often lay beyond the effective reach of law, where a small and easily manipulated electorate had little effective influence, where Parliament sometimes went decades without a fresh election--or never met at all--or where opposition to government still led to execution? The key term obviously meant a great deal to Mason, but nine days after he introduced it, he refused to sign the Constitution, and subsequently opposed its ratification.

Irony No. 2: Our precarious presidency. One reason the framers did not discuss presidential impeachment adequately is that they were preoccupied with other, more important factors relating to the design of the presidency. Their principal concern was to create an executive independent of Congress, yet still responsible for sound administration. When it came to anticipating the political capacities of the president--the amount of influence he would acquire over Congress or the electorate--they were virtually clueless, since there were no useful precedents. As a result, they spent several cycles of debate (“tedious and reiterated discussions,” in Madison’s snappy phrase) wrangling over the mode of presidential election, term of office and eligibility for reelection. The issue of impeachment was a subsidiary element, a last recourse in case the system proved radically defective.

In fact, once the Constitution was ratified, it was the problem of capturing the presidency that gave the greatest incentive to form the interstate coalitions we now know (and once loved) as political parties. As framers, the political leaders of the 1780s had tried to insulate the executive from the vicissitudes of congressional politics; they sought to protect it against “encroachments” from “the impetuous vortex” of Congress. But as early as 1796, they were busily innovating, trying to make the election of a president into the means to control the government in general.

That party loyalties are relatively weak today goes without saying. But in this crisis, they are far weaker for the Democrats, split between two branches of government, than for the Republicans, militantly united within one. Far from owing great loyalty to Clinton, congressional Democrats have great reason to rue his leadership of their party. Not only did he move the party further toward the center than many of them would prefer; he failed to use his enormous (if flawed) political skills to help the Democrats recapture the House in 1996, and he has now doomed their chances in this election. Nothing better illustrates the ironic consequences of the framers’ desire to insulate the executive from Congress than the inability of as shrewd a politician as Clinton to command the genuine, as opposed to the calculated, loyalty of his own party.

Irony No. 3: What role for the people? “The Federalist” has been much cited in the current debate, but one salient passage has so far been ignored. In Federalist #49 and #50, Madison explained why constitutional disputes between the departments of government should never be submitted to the judgment of the people. Madison feared that the most likely sources of such disputes would arise from the ambitions of the House of Representatives; because the House was the branch of government that would have the greatest influence over the people, and be most responsive to their passions, it was naive to think that appeals to popular opinion would provide a reasoned resolution of politically charged disputes over the Constitution.

Alexander Hamilton explicitly echoed this reasoning in Federalist #65, the essay that bears most directly on the question of impeachment. Here, before defending the Constitution from the charge that the Senate was an improper body for the trial of impeachments, Hamilton paused to repeat Madison’s reasoning and echo his phrasing. “The prosecution of impeachments,” he warned, “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

In one sense, this seems a remarkably prescient description of our current condition, and it immediately leads to a troubling question. If the Republicans indeed manage to convert the pending congressional election into something they can call a mandate, the next question will then become: Will the other house of Congress act with the same “necessary impartiality” that Hamilton then proceeded to ascribe to the Senate?

But there is a deeper irony still to this reading of “The Federalist.” For if the pulse of the American public, as measured in the striking stability of opinion polls condemning impeachment, is to be believed, it is the people who wish to brake the impulses of passion and ambition that, beneath the rhetoric of constitutional duty and the “rule of law,” are palpably driving this controversy.

In this respect, Madison and Hamilton got the point wrong. With the GOP members of Congress eager to show that they have finally trapped the elusive Clinton, and their Democratic colleagues closely measuring the limits of political loyalty, it is the general tenor of public opinion that best understands the long-term danger to the Constitution that these proceedings portend.

And this carries us beyond the boundaries of constitutional irony to the specter of constitutional catastrophe.*