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A Special Supplement: Impeachment

Berger—after a lifetime in government and private practice—has had an extraordinary second career since his retirement. Zest for controversy and love of learning shine through the pages of his law review articles and books. Now, at seventy-two, he is writing a book on executive privilege, a topic of even more immediacy than impeachment, and one on which he has testified brilliantly before several congressional investigations.21

He strongly opposes the inflated claims of executive privilege made in recent years, notably by then Attorney General Rogers under Eisenhower. Berger is also a strong opponent of the expansion in presidential war powers, a subject on which he published a law review article of first importance last year.22 Those two studies and a major law review article on impeachment23 which is embodied in his new book seem to have drawn their motivation from opposition to the Indochina war.

Berger’s basic position might be described as that of a radical traditionalist, seeking to strip away false, distorted, or mythological precedents by a return to the Constitution, its sources, and its Framers, and fashion new conceptual weapons against current governmental usurpations. In this sense, he is like the late Justice Black and Senator Ervin a fundamentalist in constitutional law.

In two chapters of this new book on impeachment Berger considers the possibility of using impeachment to deal with the continuing Indochina war. In the first of these he discusses the impeachment of Andrew Johnson. “His impeachment,” Berger writes, “poses an issue which may again confront us: is the President impeachable for violating a statute for example, an act that prohibits the use of appropriated funds for maintenance of ground troops in Cambodia if in his judgment it violates his constitutional prerogatives?”

The restriction on ground troops in Cambodia was passed by Congress in 1971, and not openly flouted by the executive. But the question has again become urgent with passage by the Senate, and debate in the House, of the Eagleton amendment which would bar the use of any funds for continued bombing over Cambodia.

The parallel with the impeachment a century ago is this: The immediate precipitant of President Andrew Johnson’s trial was his attempt to remove Secretary of War Stanton in defiance of the newly passed Tenure of Office Act. Johnson claimed he had a right to ignore the act because he considered it an unconstitutional interference with the President’s right to remove his cabinet officers as he pleased. Nixon, similarly, has taken the position that a cutoff of war funds while combat of any kind is in progress would be an unconstitutional interference with his powers as Commander-in-Chief. Whether Nixon will dare cling to so extreme a position in a crunch, against the background noises of Watergate, remains to be seen.

Berger, who takes a rather conventional view of Johnson’s impeachment, believes such a constitutional crisis should be resolved by an appeal to the Supreme Court rather than by impeachment, as happened in Johnson’s case. But in his concluding chapter Berger advocates impeachment as a last resort when the President takes the country into war without congressional consent.

Berger ends his book with a plea that we not deduce from the failure—and the legal clumsiness—of the Johnson impeachment that impeachment has proven “its unfitness as an instrument of government.” But he favors its use only “as a last resort” and “with extreme caution.” The Framers, he writes,

foresaw that impeachment might be subject to superheated partisanship, that it might threaten presidential independence; but recalling Stuart oppression they chose what seemed the lesser of evils. In our time the impeachment of President Truman, apparently for his conduct of the Korean War, was suggested by its staff to the Republican high command. There have been reiterated demands for the impeachment of President Nixon arising out of dissatisfaction with his program for disengagement from the war in Vietnam…. Those who are unwilling to concede that the President, without a congressional declaration of war, may commit us to a full-scale war with all its ghastly consequences may yet turn to impeachment as a curb on such presidential adventures.

Benedict’s book on Johnson’s impeachment devotes itself to rebutting the conventional view that it was the work of a radical Republican minority. His exhaustive analysis of the events which precipitated impeachment and of key votes during the trial shows that in fact Johnson’s unwise and stubborn tactics drove the moderate Republicans into an alliance with the radicals though the former were lukewarm about any thorough Reconstruction of the South.

This is a useful corrective but it does not go far enough. The deeper issues were racial and class issues which disguised themselves in constitutional form. Basically the war was fought between contending white men; slavery was a moral and burning issue only for a minority of them. Otherwise the North would have imposed a thoroughgoing land reform on the South—as we did on a defeated Japan—and taken other basic steps to make a free landowning yeomanry of the blacks. To feel the agony of those issues for the newly emancipated and for great Republican radicals like Sumner and Stevens one must still go to the pages of DuBois’s Black Reconstruction however one feels about his political proposals. These deeper realities do not obtrude into Benedict’s useful but sedate pages.

But Benedict does touch in his conclusion on a basic constitutional point, though he writes in a mood of what may be premature defeatism. He tries to rebut those historians who have seen in the Johnson impeachment an attempt to convert the American presidential system into one of parliamentary supremacy:

But in fact it had not been Congress but the President who had been claiming broad new powers. It was Andrew Johnson who had appointed provisional governors of vast territories without the advice and consent of the Senate, who had nullified Congressional legislation, who claimed inherent quasi-legislative powers over Reconstruction. In many ways, Johnson was a very modern President, holding a view of presidential authority that has only recently been established [italics added]. Impeachment was Congress’s defensive weapon; it proved a dull blade, and the end result is that the only effective recourse against a President who ignores the will of Congress or exceeds his powers is democratic removal at the polls.

But what if the President uses his power to pervert the electoral process itself? What if he casts a pall on free discussion by setting up a secret network to buy and burglarize the opposition? These are new questions raised in the wake of Watergate.

In one respect, which would be crucial in any attempt to impeach Nixon, the events of Watergate, and its aftermath, have dated both books. To understand this change one must begin by observing that until now the central issue in impeachment has revolved around a famous phrase in the Constitution. Article II, which deals with the Presidency, says in its final section 4, that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

What are high crimes and misdemeanors? This question has embroiled every impeachment trial in American history whether of a President or of judges. No phrase in the Constitution is more Delphic. A glance at its history is necessary to understand its ambiguities.

In the framing of the Constitution, Madison thought it “indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the Chief Executive.” The impeachment clause, as reported out for debate by the Special Committee, provided for the President’s removal from office by conviction on impeachment only for “treason or bribery,” though an earlier version included “or corruption.”24

The Framers had already written special clauses on treason into the new Constitution to narrow its meaning and regulate its mode of proof and trial. Their purpose was to avoid the abuse of the treason charge in English law and in English impeachments. All kinds of retrospective and “constructive,” i.e, inferential, treasons were used to suppress opposition and restrict fundamental liberties in both common law prosecutions and in impeachments by Parliament.25

So in the debate on the impeachment clause, as reported in Madison’s notes, Colonel Mason wanted to know why this was limited “to treason and bribery only.” He said, “Treason as defined in the Constitution will not reach many great and dangerous offenses.” He added, “Attempts to subvert the Constitution may not be treason as above defined.” He therefore proposed to add “or maladministration.” Madison objected, “So vague a term will be equivalent to a tenure during pleasure of the Senate,” which sits as a court to judge a bill of impeachment when brought by the House. So Colonel Mason withdrew “maladministration” and substituted “other high crimes and misdemeanors.”

But just what are “high crimes and misdemeanors”? If the Framers were thinking of the Warren Hastings trial which had just begun in London when they wrote the phrase into the Constitution, the confusion was further confounded by that trial. The phrase may have been used in the bill of impeachment26 as an over-all rubric, but no less an authority than the magisterial English legal historian Holdsworth tells us that the specific charges against Hastings were “serious breaches of the criminal law” and that in his trial the House of Lords rejected the view that it was not bound by the ordinary rules of evidence,27 as might well be the case in the trial of a nonindictable offense. This seems to demonstrate that by the time our Constitution was being written, English usage had already turned “high crimes and misdemeanors” into an empty phrase, making impeachable crimes no different from indictable crimes.

Is this what the Framers intended? What are impeachable offenses under this clause in the American Constitution? Unfortunately this question has never been conclusively answered. The standard authority for the House of Representatives, Hinds’ Precedents, devotes thirty-eight closely printed pages to the question without arriving at any definite answer.28 “The meaning of the phrase, ‘high crimes and misdemeanors,’ ” says Cooley in a footnote to Blackstone, “underwent much discussion in the case of President Johnson, who was tried on articles of impeachment in 1868, but the result of the case was not such that any authoritative rule can be derived from it.”29

The answer lies somewhere in a murky area bounded by two definitions, one usually put forward by those who desire to impeach, the other by the defenders of those whose impeachment is being sought.

The first definition was bluntly expressed in the aborted effort by the Republicans to impeach Mr. Justice Douglas, the most recent attempt at impeachment. This began April 15, 1970, in a speech in the House by Republican Leader Gerald Ford. “The only honest answer,” he said, sounding like a Jacobin, “is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history [and]…conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.”30 These are constitutional opinions he must regret as the possibility of a Nixon impeachment looms up. They embody exactly the same view taken by those who impeached President Andrew Johnson, but failed in the Senate by one vote of the two thirds required to convict.

  1. 21

    His two-part study, “Executive Privilege v. Congressional Inquiry,” in the UCLA Law Review in 1965 (referred to above), is already indispensable for serious consideration of the problem.

  2. 22

    War Making by the President” in The University of Pennsylvania Law Review, November, 1972.

  3. 23

    Impeachment for ‘High Crimes and Misdemeanors,’ ” Southern California Law Review, XLIV (1971), already cited in Benedict’s book on Johnson.

  4. 24

    The Making of the Constitution, by Charles Warren (Barnes & Noble, 1967), pp. 660-661.

  5. 25

    Indeed Hamilton in the Federalist Papers (No. LXXIV), answering the objection that the new Constitution as first presented contained no Bill of Rights, pointed to the treason clause as evidence of the Framers’ concern for civil liberty. And Madison in No. XLIII explained that the purpose of the clause was to outlaw those “newfangled and artificial treasons…by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other.”

    It is again timely to recall that the Framers, in dealing with treason, the greatest danger to national security, were concerned with protecting the individual from the abuse of this charge by the state, and therefore made its prosecution more difficult than that of ordinary crimes. They did not provide that, where national security was involved, normal constitutional and legal safeguards might be suspended. The Constitution does not, in this as in many other respects, embody the jurisprudence of Richard Nixon or of the late Joseph McCarthy.

  6. 26

    The Encyclopaedia Britannica (14th ed.) in its article on Hastings says he was tried for “high crimes and misdemeanors.”

  7. 27

    Holdsworth’s History of English Law (London, 7th ed., 1956), vol. 1, p. 384.

  8. 28

    See Sections 2008 to 2023, Precedents of the House of Representatives, Asher C. Hinds, ed. (Government Printing Office, 1907), vol. 3, pp. 321-359.

  9. 29

    Quoted in the American and English Encyclopaedia of Law (New York and London, 1900), vol. 8, p. 249, citing 4 Cooley’s Blackstone 5, note.

  10. 30

    Associate Justice William O. Douglas, Final Report by the Special Subcommittee on H. Res. 920 of the Committee of the Judiciary House of Representatives, 91st Congress, 2nd Session, September 17, 1970, p. 36.

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