The power to impeach a president is a constitutional nuclear weapon and it should be used only in the gravest emergencies. It gives politicians the means to shatter the most fundamental principles of our constitutional structure, and we now know how easily that terrible power can be abused. A partisan group in the House, on a party-line vote, can annihilate the separation of powers and send a lawfully elected president of the opposite party to a drawn-out, humiliating, televised trial, a trial that would frighten markets, usurp the scarce resource of national attention for months, and damage presidential leadership and policies for even longer. Such a group can even, if it dominates the Senate as well, remove a president from office in spite of the fact that he is the only official in the nation who has been elected by all the people, and even if he still enjoys extensive support.
Nothing—nothing—can stop a party of politicians with enough votes and that ambition. They can, as Gerald Ford warned, declare anything they want a “high crime or misdemeanor.” They can ignore, as the House has ignored, the most fundamental provisions of due process and fair procedure. No court can review their proceedings, their declaration, or their verdict. No public outcry can stay their hand. Nothing can stop them but their own constitutional conscience: their own respect not just for the Constitution’s detailed text but for its deeper structure and philosophy.
The Republican House leadership claims that it has had that respect: it says that it has acted not with glee but out of a solemn sense of responsibility. We must examine that claim with the greatest care. They say that the President must not be above the law, that he must be treated like any other citizen. But the way to treat him like any other citizen is not to impeach him: in two years Bill Clinton will be a private citizen, and he can be prosecuted, by Kenneth Starr or any other appropriate officer, for anything, in a court of law where he will have the same rights of a criminal defendant that any other citizen has.
The leadership says that the President is guilty of the “high crimes and misdemeanors” that the Constitution requires for impeachment. What does that obscure phrase mean? The Founding Fathers thought that it meant a crime against the Constitution or the state: a president acting beyond his rightful authority or otherwise betraying the public trust. They repeatedly gave the example of a president who is in the pay of a foreign power. Even if we put history aside, and try to interpret the obscure phrase so that it makes good sense within the Constitution’s structure as a whole, we reach the same conclusion.
Trying a president, let alone removing him, is a seismic shock to the separation of powers that is the Constitution’s spine. When is that shock necessary—when is it not good enough to wait until the president’s term has ended?…
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