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criminal. Of the thirteen impeachments voted by the House since 1789, at least ten involved one or more allegations that did not charge a violation of criminal law. 14
Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process—removal from Office and possible disqualification from holding future office. The purpose of impeachment is not personal punishment; 15 its function is primarily to maintain constitutional government. Furthermore, the Constitution itself provides that impeachment is no substitute for the ordinary process of criminal law since its specifies that impeachment does not immunize the officer from criminal liability for his wrongdoing. 16
The general applicability of the criminal law also makes it inappropriate as the standard for a process applicable to a highly specific situation such as removal of a President. The criminal law sets a general standard of conduct that all must follow. It does not address itself to the abuses of presidential power. In an impeachment proceeding a President is called to account for abusing powers that only a President possesses.
Other characteristics of the criminal law make criminality inappropriate as an essential element of impeachable conduct. While the failure to act may be a crime, the traditional focus of criminal law is prohibitory. Impeachable conduct, on the other hand, may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.
To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as not to reach conduct that might adversely affect the system of government. Some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.
14 See Part II.C. supra, pp. 13-17.
15 It has been argued that “[i]mpeachment is a special form of punishment for crime," but that gross
and willful neglect of duty would be a violation of the oath of office and "[s]uch violation, by criminal acts of commission or omission, is the only nonin dictable offense for which the President, Vice President, judges or other civil officers can be impeached.". I. Brant, Impeachment, Trials and Errors 13, 20, 23 (1972). While this approach might in particular instances lead to the same results as the approach to impeachment as a constitutional remedy for action incompatible with constitutional government and the duties of constitutional office, it is, for the reasons stated in this memorandum, the latter approach that best reflects the intent of the framers and the constitutional function of impeachment. At the time the Constitution was adopted, "crime" and “punishment for crime" were terms used far more broadly than today. The seventh edition of Samuel Johnson's dictionary, published in 1785, defines "crime" as "an act contrary to right, an offense; a great fault; an act of wickedness." To the extent that the debates on the Constitution and its ratification refer to impeachment as a form of “punishment" it is punishment in the sense that today would be thought a non-criminal sanction, such as removal of a corporate officer for misconduct breaching his duties to the corporation.
16 It is sometimes suggested that various provisions in the Constitution exempting cases of impeachment from certain provisions relating to the trial and punishment of crimes indicate an intention to require an indictable offense as an essential element of impeachable conduct. In addition to the provision referred to in the text (Article I, Section 3), cases of impeachment are exempted from the power of pardon and the right to trial by jury in Article II, Section 2 and Article III, Section 2 respectively. These provisions were placed in the Constitution in recognition that impeachable conduct inay entail criminal conduct and to make it clear that even when criminal conduct is involved, the trial of an impeachment was not intended to be a criminal proceeding. The sources quoted at notes 8–13. supra, show the understanding that impeachable conduct may, but need not, involve criminal conduct.
If criminality is to be the basic element of impeachable conduct, what is the standard of criminal conduct to be? Is it to be criminality as known to the common law, or as divined from the Federal Criminal Code, or from an amalgam of State criminal statutes ? If one is to turn to State statutes, then which of those of the States is to obtain ? If the present Federal Criminal Code is to be the standard, then which of its provisions are to apply! If there is to be new Federal legislation to define the criminal standard,
then presumably both the Senate and the President will take part in fixing that standard. How is this to be accomplished without encroachment upon the constitutional provision that "the sole power” of impeachment is vested in the House of Representatives?
A requirement of criminality would be incompatible with the intent of the framers to provide a mechanism broad enough to maintain the integrity of constitutional government. Impeachment is a constitutional safety valve; to fulfill this function, it must be flexible enough to cope with exigencies not now foreseeable. Congress has never undertaken to define impeachable offenses in the criminal code. Even respecting bribery, which is specifically identified in the Constitution as grounds for impeachment, the federal statute establishing the criminal offense for civil officers generally was enacted over seventy-five years after the Constitutional Convention.17
In sum, to limit impeachable conduct to criminal offenses would be incompatible with the evidence concerning the constitutional meaning of the phrase "high Crimes and Misdemeanors” and would frustrate the purpose that the framers intended for impeachment. State and federal criminal laws are not written in order to preserve the nation against serious abuse of the presidential office. But this is the purpose of the constitutional provision for the impeachment of a President
and that purpose gives meaning to “high Crimes and Misdemeanors.”
17 It appears from the annotations to the Revised Statutes of 1873 that bribery was not made a federal crime until 1790 for judges, 1853 for Members of Congress, and 1863 for other civil officers., U.S. Rev. stat., Title LXX, Ch. 6, 88 5499-502. This consideration strongly suggests that conduct not amounting to statutory bribery may nonetheless constitute the constitutional "high Crime and Misdemeanor" of bribery.
Impeachment is a constitutional remedy addressed to serious offenses against the system of government. The purpose of impeachment under the Constitution is indicated by the limited scope of the remedy (removal from office and possible disqualification from future office) and by the stated grounds for impeachment (treason, bribery and other high crimes and misdemeanors). It is not controlling whether treason and bribery are criminal. More important, they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are "high" offenses in the sense that word was used in English impeachments.
The framers of our Constitution consciously adopted a particular phrase from the English practice to help define the constitutional grounds for removal. The content of the phrase "high Crimes and Misdemeanors” for the framers is to be related to what the framers knew, on the whole, about the English practice—the broad sweep of English constitutional history and the vital role impeachment had played in the limitation of royal prerogative and the control of abuses of ministerial and judicial power.
Impeachment was not a remote subject for the framers. Even as they labored in Philadelphia, the impeachment trial of Warren Hastings, Governor-General of India, was pending in London, a fact to which George Mason made explicit reference in the Convention. Whatever may be said on the merits of Hastings' conduct, the charges against him exemplified the central aspect of impeachment—the parliamentary effort to reach grave abuses of governmental power.
The framers understood quite clearly that the constitutional system they were creating must include some ultimate check on the conduct of the executive, particularly as they came to reject the suggested plural executive. While insistent that balance between the executive and legislative branches be maintained so that the executive would not become the creature of the legislature, dismissible at its will, the framers also recognized that some means would be needed to deal with excesses by the executive. Impeachment was familiar to them. They understood its essential constitutional functions and perceived its adaptability to the American contest.
While it may be argued that some articles of impeachment have charged conduct that constituted crime and thus that criminality is an essential ingredient, or that some have charged conduct that was not criminal and thus that criminality is not essential, the fact remains that in the English practice and in several of the American impeachments the criminality issue was not raised at all. The emphasis has been on the significant effects of the conduct—undermining the integrity of office, disregard of consitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government. Clearly, these effects can be brought about in
ways not anticipated by the criminal law. Criminal standards and criminal courts were established to control individual conduct. Impeachment was evolved by Parliament to cope with both the inadequacy of criminal standards and the impotence of courts to deal with the conduct of great public figures. It would be anomalous if the framers, having barred criminal sanctions from the impeachment remedy and limited it to removal and possible disqualification from office, intended to restrict the grounds for impeachment to conduct that was criminal.
The longing for precise criteria is understandable; advance, precise definition of objective limits would seemingly serve both to direct future conduct and to inhibit arbitrary reaction to past conduct. In prirate affairs the objective is the control of personal behavior, in part through the punishment of misbehavior. In general, advance definition of standards respecting private conduct works reasonably well. However, where the issue is presidential compliance with the constitutional requirements and limitations on the presidency, the crucial factor is not the intrinsic quality of behavior but the significance of its effect upon our constitutional system or the functioning of our government.
It is useful to note three major presidential duties of broad scope that are explicitly recited in the Constitution : "to take Care that the Laws be faithfully executed,” to “faithfully execute the Office of President of the United States” and to "preserve, protect, and defend the Constitution of the United States” to the best of his ability. The first is directly imposed by the Constitution; the second and third are included in the constitutionally prescribed oath that the President is required to take before he enters upon the execution of his office and are, therefore, also expressly imposed by the Constitution.
The duty to take care is affirmative. So is the duty faithfully to execute the office. A President must carry out the obligations of his oflice diligently and in good faith. The elective character and political role of a President make it difficult to define faithful exercise of his powers in the abstract. A President must make policy and exercise discretion. This discretion necessarily is broad, especially in emergency situations, but the constitutional duties of a President impose limitations on its exercise.
The "take care" duty emphasizes the responsibility of a President for the overall conduct of the executive branch, which the Constitution vests in him alone. He must take care that the executive is so organized and operated that this duty is performed.
The duty of a President to "preserve, protect, and defend the Constitution" to the best of his ability includes the duty not to abuse his powers or transgress their limits—not to violate the rights of citizens, such as those guaranteed by the Bill of Rights, and not to act in derogation of powers vested elsewhere by the Constitution.
Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement-substantiality. In deciding whether this further requirement has been met, the facts must be considered as a whole in the context of the office, not in terms of separate or isolated events. Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.
PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION, 1787
SELECTION, TERM AND IMPEACHMENT OF THE EXECUTIVE
The Convention first considered the question of removal of the executive on June 2, in Committee of the Whole in debate of the Virginia Plan for the Constitution, offered by Edmund Randolph of Virginia on May 29. Randolph's seventh resolution provided : "that a National Executive be instituted; to be chosen by the National Legislature for the term of [ ] years ... and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.” 1 Randolph's ninth resolution provided for a national judiciary, whose inferior tribunals in the first instance and the supreme tribunal in the last resort would hear and determine (among other things) “impeachments of any National officers.” (1:22)
On June 1, the Committee of the Whole debated, but postponed the question whether the executive should be a single person. It then voted, five states to four, that the term of the executive should be seven years. (1:64) In the course of the debate on this question, Gunning Bedford of Delaware, who "was strongly opposed to so long a term as seven years” and favored a triennial election with ineligibility after nine years, commented that “an impeachment would reach misfeasance only, not incapacity," and therefore would be no cure if it were found that the first magistrate "did not possess the qualifications ascribed to him, or should lose them after his appointment.” (1:69)
On June 2, the Committee of the Whole agreed, eight states to two, that the executive should be elected by the national legislature. (I:77) Thereafter, John Dickenson of Delaware moved that the executive be made removable by the national legislature on the request of a majority of the legislatures of the states. It was necessary, he argued, to place the power of removing somewhere,” but he did not like the plan of impeaching the great officers of the government and wished to preserve the role of the states. Roger Sherman of Connecticut suggested that the national legislature should be empowered to remove the executive at pleasure (1:85), to which George Mason of Virginia replied that “[S]ome mode of displacing an unfit magistrate” was indispensable both because of “the fallibility of those who choose" and "the corruptibility of the man chosen." But Mason strongly opposed making the executive "the mere creature of the Legislature” as violation of the fundamental principle of good government. James Madison of Virginia and James Wilson of Pennsylvania argued against Dickenson's motion because it would put small states on an
11 The Records of the Federal Convention 21 (M. Farrand ed. 1911). All references hereafter in this appendix are given parenthetically in the text and refer to the volume and page of Farrand (e.g., I: 21).