Impeachment

Noting that House impeachment is a check on executive abuse independent of any ultimate Senate conviction.

Surveying founding history of the Impeachment Clause and arguing that the Constitution’s impeachment framework broke from English tradition in embracing more purely political accountability for actual misconduct.

Arguing that presidential impeachment serves to “tame” an impulse toward the assassination of egregiously lawless executives, and that this connection sheds light on the meaning of “High Crimes and Misdemeanors.”

Discussing the Samuel Chase impeachment and surveying the history of impeachment in the founding period.

Discussing the expansion of legislative power reflected by the impeachment provisions and noting that even if other means of removing executive officers exist, the Impeachment Clause was necessary to vest in Congress the executive power to indict, prosecute, and try executive officers.

Discussing founding era arguments with regard to whether the “Decision of 1789” recognized a presidential removal power, and rejecting the contention that the explicit provision for removal in the Impeachment Clause foreclosed a power in the president.

Discussing the rationale for a supermajoritarian impeachment conviction rule, noting that “convicting wrongly on impeachment is more dangerous to the republic than mistakenly failing to convict because wrongful convictions could threaten the independence of the President and judiciary and lead to partisan, destabilizing cycles of reprisals.”

Arguing for the permissibility of “late impeachment,” or impeachment of former officeholders.

Analyzing the text and history of the Impeachment Clauses.

Noting that “[t]he primary way in which the Founders sought to tame the unruly political passions that an impeachment would likely unleash was to divide the process between the two great houses of the legislature, so that as the House was given the sole power to impeach, the Senate was given ‘the sole Power to try all Impeachments.’”

Describing the House impeachment (as opposed to Senate conviction) process as a deterrent to presidential wrongdoing and arguing that “[b]y articulating the grounds for impeachment, the House reaffirms the principle of governance by consent–a principle zealously grounded during the colonial period and expressly guaranteed in the constitutional period.”

Distinguishing function of House impeachment power—a check and deterrent on presidential misconduct, and the Senate trial of impeachment—a Madisonian mechanism for resolving factional disputes.

Arguing that impeachment and conviction must precede the criminal indictment of a sitting President.

Arguing that the Impeachment Clauses do not cabin the dismissal of inferior executive officers in light of the Constitution’s omission of “good behavior” tenure for such officers.

Arguing that “the relevant constitutional text, structure, and history do not support judicial review of the procedural aspects of the constitutionally recognized process for judicial removal.”

Surveying the impeachment literature; finding that literature lacking; and making recommendations based on history, constitutional structure, and respect for the political nature of impeachment.

Reviewing the founding history of impeachment and its implications for sanctions, the standard of proof, impeachable offenses, and judicial review.

Discussing, inter alia, impeachable offenses and whether impeachment must precede criminal indictment.