High
Crimes and Misdemeanors: Presidential Impeachment
David C. Hanson, Virginia
Western Community College
The Politics of Impeachment
Article II, Section 4 of the Constitution states that any federal officer, including the president, "shall
be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors." The founding fathers were especially
concerned about the dangers of unchecked presidential power. By placing the power to
impeach the president in the hands of Congress instead of the Supreme Court, it seems
clear that they saw this as a political rather than judicial matter, but they did not
anticipate the emergence of rival factions in what soon became essentially a two-party
system of government. Herein lies the basis for the question of the extent to which
impeachment is used for partisan motives. Only twice in our nation's history has the
Senate held an impeachment trial to remove a president. Both times a Democratic
president--despised by Republican opponents in Congress--escaped conviction and
removal. One other time the threat of impeachment forced a Republican
president--hated by Democratic enemies in Congress--to resign. In each case there
were legitimate legal questions raised about the conduct of the president, and varying
degrees of bipartisan support for impeachment. The question of whether or not
impeachment and removal was constitutionally justified and/or politically motivated is a
matter of continuing historical debate.
Andrew Johnson and Reconstruction
In 1868 President Andrew Johnson came within one vote of being
convicted. Johnson's removal of the Secretary of War, in violation of the 1867
Tenure of Office Act, was the pretext for impeachment; but it was the bitter political
fight between Johnson (a Southern Democrat) and Republicans over Reconstruction that was
the real reason for his impeachment.
At the end of the Civil War the country was at peace, the
Union was preserved and slavery was abolished, but the North and South were still deeply
divided. The South's bid for independence from the United States had ended in bitter
failure with the defeat of the Confederacy, but resentment and hatred remained in both the
North and South. To make matters worse, much of the South was devastated. A
fourth of the men had been killed and much of the landscape lay in ruins. The
Southern economy was bankrupt. Social and political order was imposed by Union martial
law.
For President Abraham Lincoln and Congress, the
challenge was great: to restore social, political and economic order to a large geographic
area destroyed by war and literally turned upside down by the liberation of four million
black slaves. Lincoln had advocated forgiveness and promised a quick and easy
restoration of the Union. While Lincoln urged restraint, Congressional Republicans
favored revenge. Just as Lincoln began to formulate a plan for reconstruction he was
assassinated and Andrew Johnson became president.
Johnson was a Southern Democrat of humble origins. He resented the wealthy planters,
and cared even less for blacks, but sympathized with poor Southern whites. His terms
for re-entering the Union were generous: an oath of loyalty, an end to slavery, and
repudiation of Confederate debts. Johnson promised to remove federal troops and
recognize the newly elected Southern officials. Congressional Republicans were
outraged. They felt that Johnson was sanctioning a restoration of the South's old
order. They took note of the fact that many former Confederate leaders were back in
power, and that a series of state laws (called "black codes") stripped the
freedmen of much of their new rights. A showdown was inevitable.
Congress refused to seat the newly elected Southern
representatives and promptly passed a series of Reconstruction Acts designed to rebuild
the South while excluding ex-Confederates from power and protecting the rights of
freedmen. Johnson tried to frustrate Congressional Reconstruction policies first by
presidential veto, and then by executive order. To make matters worse, Johnson was
stubborn, inflexible and thin-skinned. He refused to compromise with the Radical
Republicans, calling his political enemies "traitors."
Infuriated by Johnson's actions and his hostile attitude,
Radical Republicans in the House of Representatives tried to indict the president in
January 1867 but the effort failed to reach the floor. Then Johnson handed his
opponents the excuse they were waiting for when he attempted to remove Secretary of War
Edwin Stanton. (In an act of defiance that today seems more comical than
melodramatic, Stanton refused to comply and barricaded himself in his office.) A
year earlier Congress had passed the Tenure of Office Act over Johnson's veto, requiring
Senate consent for the removal of all federal officials appointed with Senate
approval. The constitutionality of the Tenure of Office Act was highly questionable,
and Johnson's "crime" was actually political obstructionism. On a straight
party vote, the House voted to impeach Johnson on February 24, 1868. The trial in
the Senate lasted six weeks. (See:
Johnson Impeachment Articles.) Democrats and moderate Republicans argued that
Johnson's removal would have serious long-term political consequences, potentially
crippling the presidency. The final vote was 36 to 19, one vote short of the
two-thirds majority needed to convict Johnson.
During his impeachment trial Johnson had promised to enforce
the Reconstruction Acts, and he remained true to his word as Congress passed several
stronger laws designed to restructure the South. Five military districts were
established and martial law was imposed. Former Confederate officials were barred
from holding office; freedmen were guaranteed due process (through the Fourteenth
Amendment) and voting rights (through the Fifteenth Amendment); and Congress extended the
life of the Freedmen's Bureau, which provided food, clothing, shelter, medical care,
transportation, employment assistance and education.
Many of these measures were short-lived, however. It
was only a matter of time until Northern Republicans turned away from the internal affairs
of the Southern states, federal troops were withdrawn, and Democratic
"redeemers" wrestled political control back into the hands of powerful Southern
whites. The sharecropping system restored much of the Southern agricultural system
but did little to advance productivity or economic development. Although freed from
bondage, Southern blacks still had very little opportunity for a better life. Many
migrated to the West or North, but most stayed and tried to make the best of their new
situation, still on the "bottom rail."
Richard Nixon and Watergate
A little over a century after Andrew Johnson's impeachment
trial, in the summer of 1974, Richard Nixon became the only president to resign from
office. Impeachment by the House of Representatives seemed likely, and Nixon said he
did not want to put the country through that ordeal. As in the case of Johnson,
Nixon waged and ultimately lost a bitter struggle for power. Unlike Johnson,
however, Nixon was engaged in a series of unlawful actions for which he could not escape
responsibility nor protect his presidency from self-destruction.
The most infamous "dirty trick" of the Nixon
administration, though one of the least serious crimes, was the break-in, burglary and
bugging of the Democratic National Committee headquarters at the Watergate building in the
summer of 1972. At 2:30 a.m. on June 17, Washington police arrested five burglars at
the Watergate. A series of Washington Post articles by two investigative reporters,
Bob Woodward and Carl Bernstein, connected the burglars to Nixon's re-election committee
and high-level White House officials. But the Watergate scandal had little if any
effect on the election. In August of 1972 Nixon announced that "no one in the
White House staff . . . was involved in [the Watergate burglary], ironically adding that
"what really hurts in matters of this sort is not the fact that they occur . . .
[but] if you try to cover up." In November he was elected to a second term by a
landslide.
Evidence subsequently revealed that Nixon was personally
involved in a secret and illegal campaign aimed at discrediting his political enemies and
a subsequent cover-up. The latter consisted of an effort to block the investigations
of Judge John Sirica, a committee headed by Senator Sam Ervin, and special prosecutor
Archibald Cox. Televised Senate hearings during the summer of 1973 produced a trail
of evidence eventually leading straight to the president. After fighting a losing
battle with Congress and the Supreme Court over tapes made in the Oval Office, Nixon
reluctantly released incriminating evidence that sealed his fate. On one tape Nixon
advised White House counsel John Dean to "take care of the jackasses who are in
jail." Nixon talked about getting a million dollars in hush money to shut them
up. As for avoiding perjury, Nixon told Dean to just say, "I don't
remember."
In July of 1974, the House Judiciary Committee voted to
recommend three Articles of
Impeachment, charging Nixon with obstruction of justice and
abuse of presidential power. It is not known how the trial would have gone in the
Senate, but Nixon's supporters in Congress advised him that "they have the
votes" for impeachment in the House. Before the House could vote on
impeachment, Nixon resigned on August 8, 1974. Four cabinet officers, including
Attorney General John Mitchell, were convicted of crimes and sentenced to prison
terms. (Vice President Spiro Agnew had previously resigned and been convicted of an
unrelated crime.) Nixon's appointed successor, Gerald Ford, had reassured Congress
during his confirmation hearings that a pardon would be politically unacceptable; but on
September 8, 1974, he did just that. Ford's pardon of Nixon was intended to
"restore tranquility" and put an end to the Watergate controversy.
Instead, it created a firestorm of criticism.
Some historians argue that "perhaps Watergate should be
regarded merely as one of the periodic scandals that embarrass administrations--like
Teapot Dome of the twenties or the Credit Mobilizer frauds of the Grant
administration" (Davidson and Lytle, After the Fact). A common,
cynical commentary is that Nixon merely did what other presidents before and after did, he
just got caught. Regardless of what other presidents may have gotten away with,
Nixon did get caught. In the aftermath of Watergate there was "renewed public
cynicism toward government" but also "a silver lining in . . . the vigor and
resiliency of the institutions that had brought [Nixon] down" (Tindall & Shi, America).
Bill Clinton and Monica Lewinsky*
In October of 1998 the House of Representatives voted to
start a formal impeachment inquiry into charges brought by independent counsel Kenneth
Starr alleging that President William Jefferson Clinton committed impeachable offenses,
including perjury and obstruction of justice. The charges stemmed from an
investigation of Clinton's efforts to conceal an extramarital affair with a White House
intern named Monica Lewinsky. Incredibly, Congress released the Starr report and
published it on the Internet, with all its explicit details about the affair, for all the
world to see. Public reaction to the scandal was like that of witnesses to a train
wreck; shocked and repulsed, yet fascinated.
In a petition to the nation, more than 400 leading historians
decried the Congressional investigation as unwarranted and "extremely ominous for the
future of our political institutions." Such action would leave the presidency
"permanently disfigured and diminished." Nonetheless, despite Clinton's
sustained popularity and the unlikelihood of a conviction in the Senate, the Republican
majority in the House voted for two
Articles of Impeachment on December 19, 1998. After a brief and
anticlimactic trial in the Senate, Clinton was acquitted by a comfortable margin on
February 12, 1999. The majority of Senators, reflecting the sentiments of the
American people (according to most public opinion polls), determined that Clinton had
disgraced himself and his office, but his personal misconduct in private, and subsequent
public deceptions in an effort to save face, did not rise to the level of impeachable
offenses. The whole sordid scandal not only left a stain on the Clinton Presidency,
it also raised troubling questions about "the politics of personal destruction,"
the responsibility of the media, and the wisdom of the independent counsel law passed in
the wake of Watergate.
To Impeach or Not to Impeach?--That is the Question
In the case of Andrew Johnson, partisan political differences
led to an impeachment trial that was, I believe, a gross misuse of Congressional
power. Frustrated by Johnson's efforts to undermine their Reconstruction policies,
Radical Republicans tried to vote him out of office, a prerogative reserved to the
electorate. In the case of Richard Nixon, partisan politics may have played a role
in the investigation by Congress, but the fact remains that Nixon's misuse of presidential
power involved serious crimes that warranted impeachment. In other words, Johnson's
impeachment threatened the balance of power established in the Constitution, whereas
Nixon's resignation under the threat of impeachment restored the balance of power.
As for Clinton, clearly there was no constitutional crisis through an abuse of presidential
power; just a sordid affair, exploited by the political opposition to weaken his
presidency, and a classic example of the adage that the denial is often worse than the
offense [see Grover Cleveland, Election Scandal of
1884].
Impeachment should never be considered because of political
differences between the president and Congress--as was the case with Andrew Johnson--nor
merely because of unpopularity, stupidity, or misbehavior. Only when the President is guilty of serious
"high crimes" involving his or her actions while in office--as
clearly was the case with
Richard Nixon--should impeachment be considered. [Where Bill Clinton
falls on the continuum of impeachable misconduct--somewhere between Johnson
and Nixon perhaps--is open to debate.] The framers of the constitution saw
impeachment as a political check, serving as the ultimate defense against executive
tyranny. It is a power which should be reserved for situations where the president's
removal merits careful, dispassionate and nonpartisan consideration to preserve our
constitutional democracy.
*As a rule, I believe in the "twenty year rule"
of history; it takes a distance of at least two decades for sufficient objectivity and
research before recent events can be treated as history. Thus it is with trepidation
that I have updated this essay, originally written in 1997, to include the impeachment of
Bill Clinton.
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