Impeach Michael Brown. Impeach Him Now.

Mark Tushnet

The argument is simple: (1) "[C]ivil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of . . . high Crimes and Misdemeanors." U.S. Constitution, article II, section 4. (2) Michael Brown is a civil officer of the United States. (3) Gross incompetence in the performance of the job of an important but "inferior" civil officer -- by which I mean someone other than the President and Vice-President -- is a "high . . . Misdemeanor." (4) The last element of the argument needs no statement.

The only point worth elaborating here is Step (3). The drafting history of the impeachment provisions indicates pretty clearly that the provision does not authorize the removal of a President for (mere) "maladministration." The reason, though, goes specifically to the office of the presidency. Authorizing presidential removal for maladministration would make the President subservient to Congress, and so would make the U.S. system more like a parliamentary system in which the chief executive's tenure depends on retaining political support in the legislature. Control over maladminstration in the U.S. system is exercised by the people at the next election.

The concern that impeachment for maladminstration makes a system too parliamentary is absent in the case of an inferior civil officer. Indeed, we might well want some mechanism to control cronyism that results in incompetent performance. And impeachment can certainly do that. This is particularly true because the United States has not developed a robust tradition of resignation, or forced resignation, because of incompetent performance.

One possible objection should be noted: Can a single term -- "high Misdemeanors" -- mean one thing with respect to inferior civil officers and something narrower with respect to the President and Vice-President? I don't see why not, particularly given the plural form of the noun. (A somewhat similar question arises in connection with the First Amendment's two religion clauses, which use the single term "religion" to do quite different things, to the point where Laurence Tribe once suggested that the term has to mean different things as well. He later retreated from that position, but I'm not sure that the retreat was necessary.)

[In a more academic treatment, I'd address a couple of other minor points -- the possible impact (none, I believe) that the two-term limit imposed on the President by the Twenty-Second Amendment should affect the possibility of impeaching a second-term President for maladministration, the reason that not cronyism alone but cronyism that results in incompetent performance is a problem, why toleration of such performance by a crony is not itself an impeachable offense -- but this is not the venue for doing so.]
Posted 8:51 AM by Mark Tushnet [link]