Wednesday, January 17, 2018

Impeachment: A Citizen's Guide by Cass Sunstein

Supreme Court Justice Louis Brandeis, attempting to vindicate the freedom of speech, warned that "the greatest menace to freedom is an inert people."  If the American constitutional system is working well, or at least well enough, We the People can cast our votes and love our families and live our lives.  We do not need to focus on the impeachment mechanism.  But if we are going to keep our republic, we do need to know about it.  It's our fail-safe, our shield, our sword - our ultimate weapon for self-defense.

I picked up this book for no particular reason, no reason at all. .. 

In all seriousness, though, there has been, and likely will be, a lot of impeachment talk bandied about, and I wanted to have a historical/constitutional/legal framework for understanding those discussions.  Already you have politicians and commentators spouting a whole range of nonsense, from the cynical ("The only basis for impeachment is what Congress thinks is a basis for impeachment") to the misguided ("Only criminal actions are impeachable.")  Sunstein's guide, on the other hand, traces impeachment back to the founding fathers' views and reviews the few instances in which presidential impeachment has actually occurred in our history.  Sunstein also, helpfully, poses a number of hypothetical situations (none involving the Russians...) and opines on whether impeachment would be permissible in such situations.

After the Revolution and the Articles of Confederation disaster, the drafters of the Constitution still feared a monarchical executive, but also saw the need for a strong one.  Impeachment was critical to balancing those considerations.  On one hand, the framers recognized that making impeachment too easy would undermine the president's authority and diminish the separation of powers, making him depended on the approval of Congress, rather than the people.  On the other hand, even though there would be a chance to vote him out every four years, they were still afraid of a president coming under the thrall of a foreign power, and realized that there would be other situations in which a president needed to be removed immediately.  Thus, when crafting the impeachment clause, they created a high standard ("treason, bribery, or other high crimes or misdemeanors"), and added institutional safeguards (the House votes to impeach, two thirds of the Senate must vote to convict) in order to ensure that impeachment was possible, but would not occur too often.

Though "high crimes or misdemeanors" is not defined in the Constitution, Sunstein argues that, based on the historical record, the framers considered them to be official acts, not personal acts.  For example, according to Sunstein, if a president committed tax fraud on his personal income taxes while in office, that would not be an impeachable offense, even though it is a criminal act.  This seems wrong, or at least it did to me before reading this book, but the framers weren't concerned with personal morality, they were concerned with abuse of power.  (If the president used his authority over the IRS to cheat on his taxes, that might be impeachable).  Sunstein even goes so far as to say that obstruction of justice, for which Clinton was impeached and Nixon was going to be impeached and....well...moving on....might not be an impeachable offense.  He argues that if the president obstructs justice by covering up an action that is in itself not impeachable, then the obstruction wouldn't be, either.  This makes sense when you consider his example of covering up marijuana use by White House staff, but is a little iffier when applied to "an investigation into the president's illegal investments before taking office."  As a result, Sunstein does not think Clinton should have been impeached.  Though perjury is unlawful, "[w]e aren't speaking of systematic violations of civil liberty, or acquisition of the office by unlawful means, or the grave misuses of official authority that triggered impeachment proceedings in the American colonies."

In one of the most helpful chapters, Sunstein includes a list of hypotheticals and opining whether they would warrant impeachment.  In addition, he includes thoughts on the 25th Amendment and statutory interpretation, as well as an impeachment cheat sheet chapter.  

Overall, I thought Impeachment: A Citizen's Guide was very helpful and well reasoned.  Even when I wasn't sure I agreed with him, I could see where he was coming from, and it was helpful to have a well constructed framework in which to analyze the issues.  It'll be interesting to see whether they have any practical implication in the near future...


Randy said...

How heavy was this? I've been interested in reading Sunstein for a while, but have been putting it off for fear that his books would feel very academic.

billy said...

It wasn't heavy at all. I was surprised at how readable it is