The Wounded Constitution

How well has the Constitution survived the impeachment ordeal? In the end, neither of the two articles of impeachment that the House had adopted, in a party-line vote, was endorsed even by a majority of senators, let alone by the two thirds necessary to convict the President and remove him from office. Many commentators saw this result as a demonstration of the Constitution’s wisdom and power. The New York Times declared that “Congress has just demonstrated that an impeachment based solely on partisanship cannot succeed under a process that, like the Presidency itself, is founded on so steadfast a rock.” Professor Laurence Tribe of the Harvard Law School said, in the same newspaper, that “the impeachment drama will have yielded few heroes—except the Constitution’s Framers, whose wisdom that drama will again have vindicated.”

We must hope that history justifies this optimism, but it seems premature now. The long, disgraceful story revealed a dangerous threat to the separation of powers that is the Constitution’s structural heart. If the politicians who control Congress are numerous enough, and partisan or zealous or angry enough, they can remove a democratically elected president they dislike simply by finding some misdeed that they can label a “high crime.” No other body can review their declaration. The only check on Congress’s impeachment power, as I argued in an earlier article in this journal,* would be a broad understanding, shared across parties and ideologies, that impeachment is a last resort, that it should be used only in an emergency when it would be evidently dangerous to the Constitution and to the nation to allow the president to continue in office. “High crimes and misdemeanors” must be taken to mean wrongful conduct so threatening to those institutions that we must endure a grave shock to the balance of powers in order to escape the danger.

Did the impeachment and acquittal of President Clinton reflect or establish that broad understanding? The Republicans in the House put the nation through months of hearings, debate, and trial, weakening the presidency, preoccupying Congress, and monopolizing public attention, on grounds that did not remotely approach the standard I described. Half the members of the Senate voted to remove the President on those grounds, and many—it is impossible to say how many—of the other half voted to acquit, not because they deemed those grounds inadequate, but because they thought that the “House managers” who presented the case against the President in the Senate had failed to prove the charges. Senator Byrd, for example, a Democrat who is often hailed as the custodian of Senate traditions, voted for acquittal, but said he had no doubt at all that the charges, if proved, would meet the constitutional standard, and Senator Specter, one of the five Republicans who voted for acquittal on both charges, said he was voting for the “Scottish verdict” that the charges were “not proven.”

Clinton’s continuing political popularity was plainly, moreover, a crucial ingredient in his ultimate escape. Would the result have been…

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