Thursday, June 08, 2017

Does Past Practice Matter When it Comes to Impeachment?

Deborah Pearlstein

While there are certainly grounds for distinguishing the conduct that led to President Nixon’s resignation in 1974 and the allegations leveled thus far against the current president, the effort by both presidents to get the FBI to back off ongoing criminal investigations is now inescapably similar.  Indeed, long after revelations of the actual criminal conduct surrounding the break in at the Watergate hotel, it was the audio tape of Nixon agreeing to seek the FBI’s disengagement that was viewed as the “smoking gun” after which impeachment became inevitable.  (It is of course true that the Democrats controlled Congress in 1974, but it was notably the Republican minority leaders in the House and Senate (along with Republican Senator Barry Goldwater) who played the essential role, telling Nixon that he faced certain impeachment in the House and conviction in the Senate, thus prompting his resignation .) As a matter of constitutional law, does the fact that Congress was poised to impeach one president (pre-conviction) for the conduct it now seems apparent was engaged in by this President mean Congress must begin an impeachment investigation here?

The short and strictly formal constitutional answer to such a question is surely no – impeachment is in the main a political remedy, committed to the discretion of a majority of the House and two-thirds of the members of the Senate, none of whom is bound in any formal (or even informal stare-decisis sort of way) by decisions past legislatures have made in past cases of impeachment. And while a congressional failure to address the situation with a parallel degree of seriousness would leave congressional Republicans here fairly open to charges of partisan, political hypocrisy, that criticism is plainly different from a charge that a failure to move against this president would be, in some sense, unconstitutional.

At the same time, it seems strange in this setting to imagine that past impeachment practice is constitutionally irrelevant.  It has been in precisely this kind of situation – in which the courts have had little or no occasion to interpret the import of a particular constitutional power – that the Court has relied on the practice of the political branches to illuminate the meaning of constitutional text. As Justice Frankfurter put it: “[I]t is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.”  Whether as evidence of the political branches’ own interpretation of the Constitution, or as an indication of a post-ratification political settlement that has been reached, practice has (for better or worse) often informed our understanding of constitutional meaning.  If presidential practice (and congressional acquiescence) may be treated as “as a gloss on the ‘executive Power’ vested in the President” under section 1 of Article II, why should not congressional practice (and presidential acquiescence) be treated as much the same kind of gloss on the meaning of, say, “high crimes and misdemeanors” under the same Article’s section 4?

Quibble if you like about the exactness of the analogy to cases like Youngstown Sheet & Tube or Dames & Moore, but I would like to think such arguments provide at least some grounds for dispensing with arguments that what this president has done should not count as a ‘high crime or misdemeanor,’ with or without formal conviction. Whatever the political likelihood of Congress acting, there should be scant doubt that it has ample constitutional grounds to proceed.

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