Is impeachment primarily a political process, as President Clinton's defenders are now arguing? Or is it primarily legal, as Jonathan Turley argued in his Sept. 14 Rule of Law column? Christopher L. Eisgruber's Sept. 21 Letter to the editor takes Mr. Turley to task for claiming "that 'political' arguments against impeachment are inappropriate." Mr. Turley's analogy of impeachment to a criminal trial — with the House serving as a "grand jury," the Senate as a "trial jury" — is "without foundation in the Constitution," Mr. Eisgruber says. Instead, "[i]ndictment is a legal process, overseen by the courts, which punishes people for legal delicts. Impeachment is a political process, overseen by Congress, which removes an official from office" (emphasis added).
Not quite. Indictment does not punish people; it simply sets the stage for a trial, from which punishment may follow. Nor does impeachment remove officials from office; here too it simply sets the stage for trial by the Senate, from which removal may follow. More to the point, impeachment, properly understood and conducted, is no more "political" than indictment. It is a process for determining whether there is sufficient evidence to move to trial. And that, as Mr. Turley correctly argues, is no place for "politics." As he put it: "The House cannot simply proclaim, as is popular in current commentary, that any criminal acts are negated by a good economy.'"
Not unlike the man he defends, Mr. Eisgruber goes wrong through misrepresentation. He has Alexander Hamilton saying that "impeachment applies only to behavior that involves 'the abuse or violation of some public trust,' and which accordingly 'relate[s] chiefly to injuries done to the society itself'." (emphasis added). Thus, the judgment about whether a crime or misdemeanor is "high," Mr. Eisgruber concludes, "is political, not legal."
Here's the full Hamilton: "The subjects of [impeachment] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself" (emphasis added). Nothing there suggests that impeachment is solely or even primarily a political judgment. On the contrary, it is the "misconduct" that is the predicate of any impeachment inquiry. Such "offenses," by "public men," may indeed constitute "the abuse or violation of some public trust" — and be denominated "political" — but that hardly makes the judgment about whether misconduct has occurred — more precisely, the judgment about whether there is sufficient evidence to believe that misconduct has occurred political. As Mr. Turley says, "[i]t would be outrageous for a defendant to answer a criminal charge with a list of popular acts taken outside his criminal conduct."
But Mr. Eisgruber's misrepresentation does not end there. For in criticizing Mr. Turley for supposing that the House is "obliged" to impeach if it determines that high crimes have been committed, he notes that "no such rule appears in the Constitution. It says only that the president and other officers 'shall be removed from office on impeachment.' If impeached, the president must leave office; it does not follow that the president must be impeached" (original emphasis).
Here, again, is the full text: "The President ... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors" (emphasis added). In his haste to criticize Mr. Turley over what the House is "obliged" to do, Mr. Eisgruber has conflated the two proceedings — impeachment in the House, trial in the Senate — and drawn the wrong result from the first proceeding. To be sure, the House is not compelled to impeach, however compelling the evidence may be. But Mr. Turley was not talking about constitutional imperative. He was talking about moral and legal principle: "On the facts now before us, it is difficult to see how House members can vote on principle against submitting this matter to the Senate." Once the matter is in the Senate, however, there is no discretion if guilt is found; for upon conviction, the president "shall" be removed from office. Thus, Mr. Turley himself is mistaken to say that "[i]t is only after determining guilt that the Senate can consider issues of character and service as relevant to the final question of removal." To the contrary, after determining guilt, removal "shall" follow.
Indeed, it is only in the largest sense that impeachment is "political." It is provided by the Constitution not to punish misconduct — that can follow removal — but to remove from office an official who, by his misconduct, has proven himself unfit to hold the trust the public once placed in him. And that is why the current talk about a "deal," with accompanying "sanction," is utterly misplaced. That would leave us in the worst of all worlds — with a sanctioned and thus crippled president, who still could not claim our trust. Fortunately, the founders provided a mechanism to avoid that untenable result. It is there to be used when needed, if only we understand it properly.