Caleb Brown: This is the Cato Daily Podcast for Tuesday, July 25th, 2017. I am Caleb Brown. Impeachment has occurred only twice, three times if you count Richard Nixon, but should Congress use it more? After all, as Cato’s Gene Healy points out, abuses of office that rise to that level happen on a fairly regularly basis. We spoke last week.

Why don’t we impeach presidents very often?

Gene Healy: Well, we seem to be scared of the process. You actually hear people refer to it as the I word, as if it is somehow fundamentally profane or blasphemous. You know, we don’t call it the V word when the president is about to veto a bill, but this is a – for some reason we go to the constitutional equivalent of H‑E-double L hockey sticks when we are talking about impeachment. And it really is, whatever you think of Donald Trump and the calls for his impeachment, that shouldn’t determine what you think about impeachment in general. And it seems to me that the fact that we have only managed two impeachments in 230 years of constitutional history, Nixon technically got out before the hammer fell, so he technically wasn’t impeached, but let’s call it three. Given the number of crooks and clowns and abusers of power we have been saddled with through the course of over two centuries of American constitutional history, you’d think we’d have managed the job more often.

Caleb Brown: So, the process of impeachment requires what are called high crimes and misdemeanors…

Gene Healy: Yeah.

Caleb Brown: …but what does that mean in context?

Gene Healy: I think there is a lot of confusion about that phrase. I mean, if you take it in modern language it looks like it says you know, egregious felonies and also lesser offenses. So, it’s hard to tell what it means just from a plain language standpoint, if you are using contemporary language. But the phrase high crimes and misdemeanors was in use in British impeachments for about four centuries before the framers adopted it in the Constitution. And there, in British practice, it stood for a wide range of offenses. The sorts of heinous abuses of power that people tend to associate the phrase with, but also maladministration, giving back advice to the king, screwing things up. And the evidence is that it was broadly understood in the first few generations after ratification of the Constitution. But it is not the case that, despite conventional wisdom and particularly the line that the legal academy pushed when they were trying to save Bill Clinton’s bacon, it is not the case that impeachment is some kind of constitutional doomsday device, that you only break the glass in case of an existential threat. It is more like a constitutional safety valve. You don’t use it for the ordinary bad behavior, politics, and general incompetence we see in too many of our presidents, but you do use it when the president or another federal official’s conduct in office demonstrates that that person can no longer be trusted with the powers and responsibilities of that office.

Caleb Brown: That seems like just a showing of cause.

Gene Healy: Yeah. I think it would be more useful, instead of thinking of this as a constitutional nuclear weapon or a criminal punishment, because, of course, criminal punishment doesn’t attach to impeachment, the only remedy is removal from office and possible disqualification for future office. I think it would be more useful to think of it as firing an employee for cause. And you don’t enumerate all of the possible, things that, in the employee handbook, that you can be fired for. You know, a board of directors doesn’t enumerate all the possible things that a CEO can be removed for. It is you know, it would be broader than could possibly be predicted, but it’s a remedy that needs to be there, that the framers considered indispensable for protecting the community.

Caleb Brown: Ultimately, of course, impeachment is something that must cross a political smell test before it is undertaken. And that seems to be actually more of a constraint on its use than the specifics of what would constitute clear-cut high crimes and misdemeanors.

Gene Healy: Right. Impeachments are unavoidably political. You know, Hamilton predicted in The Federalist that they seldom fail to agitate the passions of the whole community and cause preexisting factions to line up on one side or the other, so we shouldn’t worry that they are political. That is sort of unavoidable.

Caleb Brown: But I guess what I mean is that the rarity with which they are used are because it seems to be a fairly high threshold of either dislike for a president or egregiousness of what they have done.

Gene Healy: Well, I think we are making it harder than it is. I mean harder than it was intended to be. You know, James Madison said it was the remedy for incapacity, negligence, or perfidy of the Chief Magistrate, and we seem to have only concentrated on the last element there, you know, egregious abuses of power. But, I think, you know, if you talk about incapacity, inability to do the job, negligence, bad administration, when you get to a situation where the president has demonstrated conduct that is incompatible with the nature of the office and that can make reasonable, say reasonable people, worry about his access to nuclear weapons, I think impeachment should be less feared than it is.

Caleb Brown: What would it mean if we had impeached oh, any number of presidents in the past we would be on president 55 or 65, maybe. What do we get out of that?

Gene Healy: Well, in the past it has been fairly beneficial. You know, Jerry Ford famously said, “Our long national nightmare is over” after Richard Nixon resigned. The real nightmare is what Nixon and presidents before him had gotten away with. You know, we found out in the 70s, through a series of congressional investigations that it was worse than Watergate and went beyond Watergate and his predecessors had been involved in many of the same abuses of power and political corruption as Nixon was. And, after Nixon was impeached, you know, we made some strides towards reforms like FISA, the Foreign Intelligence Surveillance Act, putting the president’s surveillance powers back under law. And, when Clinton was impeached, he wasn’t removed, but the notion that the Clinton impeachment was some kind of national turmoil that weakened the country doesn’t bear up to scrutiny. The stock market churned on with barely a blip and you know, we learned some important lessons about the presidency and Congress during that time. So, I don’t think this notion that impeachment is going to cause a constitutional crisis should really be taken seriously.

Caleb Brown: It is interesting how the same people who would argue that it is very important that Americans have respect for the office of the presidency are among the people who may very well be the least amenable to using impeachment on a semiregular basis.

Gene Healy: Well, this is, more than anything else, more than anything else I can think of, you know, including the judicial filibuster, this is a provision and a debate that turns everyone into a hypocrite. I mean, everyone switches sides and engages in situational constitutionalism depending on whether they like or dislike the president that is a target of impeachment. You know, right now MoveOn​.org was literally founded to get Congress to move on from the Clinton impeachment is now leading the drive to impeach Trump. Meanwhile The American Spectator, the magazine that put itself on the map with you know, Troopergate and stories leading up to the Clinton impeachment, The American Spectator thinks impeachment will be just too divisive and unsettling for the country. So very few people, you know, have held to a consistent standard about whether they think impeachment is a good idea and how far they think the impeachment remedy extends. But I think it is important that, you know, we look beyond Donald Trump, because unless things go really badly, he is not going to be our last president. And it is important that we get the nature of the impeachment remedy and what it is supposed to be used for, it is important that we get that right.

Caleb Brown: Is part of the fear of using impeachment or the I word, as it is called, that exactly what happened with Bill Clinton would be revealed to be a regular thing and that, you know, the stock market would be fine, the economy would hum along, and that, maybe, people would lose regard for the importance of political actors?

Gene Healy: I don’t know if I would go that far. I don’t think it is that self-conscious. What happens, I think, as Hamilton predicted, is people see red or see blue, as it were. They put their partisan goggles on and they defend their guy and or, you know, go on the attack. And one of the things that I think is interesting, though, is that it is odd that so much partisan you know, effort, is invested in the defense of a president of the same party. If Bill Clinton had resigned, done the right thing and resigned, or you know, had been removed from office, Al Gore would have been constitutionally eligible for, depending on when it happened, to run for two additional terms. He could have been president until 2008. And you know, would have gone into the 2000 election as an incumbent. Similarly, you know, you have a lot of Conservatives calling the calls for Trump’s impeachment, comparing them to a coup. Well, it’s some coup where the president’s handpicked successor takes over after it is done. And, you know, maybe Conservatives should be thinking about, if this does heat up, if we have a serious impeachment effort, you know, the Democrats, say the Democrats take the House in the next election and this starts going, they might think about maybe throwing the fight in the late rounds because they might be doing better with Mike Pence who, whatever you can say about him, doesn’t seem as reckless and erratic and immature as Donald Trump, they might be doing better with him in office. So, I think there is a lot of myopia that surrounds these impeachment fights. And, you know, I don’t think we should treat it as a constitutional nuclear exchange, we should treat it as what it was intended to be, a remedy for evicting a federal officer that has shown that they are not up to the job.

Caleb Brown: Gene Healy is a vice president at the Cato Institute. Subscribe to and rate the Cato Daily Podcast at iTunes and Google Play, and follow us on Twitter, @CatoPodcast.