Separation Of Powers, Checks & Balances And Impeachment: Presidents Andrew Johnson, Richard Nixon, Bill Clinton – Guest Essayist: Andrew Langer

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“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” – The US Constitution, Article II, Section 4

In this 90-Day series on the Constitution, many scholars, myself included, have talked about the diffusion of power as a check on sovereign authority.  The power to wage war, for instance, is divided between Congress (with the power to declare war) and the Executive Branch (wherein the President serves as Commander-in-Chief).

But because of the enormous power of the Executive Branch (and of the President as Chief Executive), the founders knew it would be necessary to create a mechanism by which a President could be removed from office.  Benjamin Franklin is noted to have quipped at the Constitutional Convention that prior to the existence of the United States, national leaders who had earned enmity with their peoples had been removed from power via assassination (or execution), and that it would be more preferable to have a proceduralized legal process by which such a leader would be removed in the United States.

Mirroring criminal legal proceedings, when it comes to federal impeachment, the House of Representatives engages in the process of “impeachment” which is akin to a grand jury’s indictment process.  Should the President be “impeached” (i.e., indicted), the case then goes to the U.S. Senate for trial—with the Chief Justice of the United States Supreme Court presiding.  To date, two Presidents have been impeached:  President Andrew Johnson and President Bill Clinton.  Neither were convicted in the Senate.

President Richard Nixon resigned from office before the House could vote on his impeachment—but it was expected that the House would impeach him, and that the Senate would most-likely find him guilty, and thus make him the first President to be removed from office under the Constitution’s guidance.

The fact that no President has been so-removed is a testament to the founders’ brilliance.  As I have written elsewhere regarding federalism and the separation of powers, the founders wanted the people of the United States to have a deliberative legislative branch—and the deliberative nature of the impeachment process hedges against a legislature that wishes to punish a President over politics.

This could certainly be argued with regards to Andrew Johnson.  Johnson, who assumed office after President Lincoln’s assassination, was grappling with a Congress essentially-ignoring Lincoln’s Reconstruction wishes (“malice towards none, charity towards all”), putting the southern readmission process into the Union under the management of military commanders.

There were legitimate questions as to whether this was Constitutional, but President Johnson attempted to use his power as Commander-in-Chief to mitigate the use of the military in this regard.  In response, Congress passed the “Tenure in Office Act”, which sharply constrained the ability of the President to remove Executive Branch officials[1] when the Senate was out of session (which, at the time, was quite frequent, given the part-time nature of our federal legislature prior to the invention and installation of modern air conditioning in the U.S. Capitol and office buildings).

Johnson asserted his authority as chief executive, and Congress pushed forward to impeach him under Article II.

It is important to note that the concepts of “high crimes and misdemeanors” has never been authoritatively defined—and so it has become a ubiquitous “catch all” for a President’s opponents to bandy about when calling for a President to be impeached on non-specific offenses.

In the case of Johnson, the process worked.  Yes, he was impeached by the House, but when the case went to the Senate he was acquitted.

In the case of President Clinton, the “high crimes and misdemeanors” arose from allegations of perjury and obstruction of justice with regards to the Independent Counsel investigation of the President, and statements he made, under oath, with regards to a personal relationship the President had with a White House intern.  Once again, the House of Representatives impeached the President, while the Senate trial resulted in an acquittal.

That President Nixon resigned from office before he could be removed is further proof that the system, and the concerns underscored by Benjamin Franklin, works as intended.  Our founders had great faith in the rationality of American leaders—but they also recognized that men were fallible.  As James Madison wrote in Federalist #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

There was an expectation that thoughtful leaders, when presented with the stark reality of their removal, would accept resignation rather than removal.

Which brings us to the present administration, and the great political divide in America today.  The founders were aware that political tensions could run high—and that politicians might try to remove a President for political reasons.  It is in environments like today that the deliberative process is of such paramount importance.

The thorough process creates a bar that insists that our representatives (in both the House and Senate) give great thought to their actions vis-a-vis removing the chief executive.  In that deliberative thought process, the founders knew, rationality would rise to the top.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

[1] It is important to note that the Tenure in Office Act was sharply reformed when Ulysses S. Grant took office, and ultimately repealed by Congress two decades after it’s package.  When a similar law was passed in 1926 and challenged for its constitutionality, the Supreme Court commented on the Tenure in Office Act as having been potentially unconstitutional (had it been challenged).

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