Researching and writing this book was a learning experience beyond measure. Studying this history gives me great confidence in the genius of our Founding Fathers, and it is comforting to know the degree to which political figures across the spectrum of time and party loyalties honor the constitutional impeachment process, from the Founding Fathers in the eighteenth century advocating its use as the proper constitutional alternative to “tumults and insurrection” to its effective use against modern tyrants and self-styled emperors.
Thus, this book naturally cites public officials and scholars across the centuries and political spectrum including Supreme Court Justice William Brennan and the Heritage Foundation for their teachings on the pardon power; Pulitzer Prize–winning author, Democrat, and then–future president John F. Kennedy on the key points of the impeachment of Andrew Johnson; and then–Republican House manager Lindsey Graham, who went on to become a Republican senator and contributed greatly to modernizing impeachment law by understanding and using cases of judicial impeachment as appropriate precedent in the impeachment of President Bill Clinton. In the impeachment of Judge Sam Kent, Congressman John Conyers—a Democrat—submitted a key House of Representatives report, while Senator Harry Reid—the Democratic Senate leader—spoke the reassuring words of Senate willingness to proceed to impeachment trial, causing the resignation of abusive Judge Kent, serving his prison sentence for obstruction of justice. One outstanding educational source in the use of impeachment proved to be Republican presidential appointee to the Supreme Court Chief Justice William Rehnquist, who presided over the Clinton impeachment trial.
We should appreciate the role of Chief Justice Rehnquist in our country’s twenty-first-century use of impeachment. At the end of the twentieth century and into the twenty-first, Congress has undertaken multiple impeachment investigations and increasingly used its impeachment powers. Congressional work, the subject of public praise—unusually—by the then–sitting Chief Justice William Rehnquist of the U.S. Supreme Court in his 1992 impeachment book, Grand Inquests, demonstrates the strength of our democracy in general and our impeachment practices in particular.323 The chief justice made it very clear that future generations had “considerable room” to adapt impeachment for future contingencies the Founding Fathers could not anticipate; they left us “play in the joints” to use the Impeachment Clause for the good of the country.324 Justice Rehnquist’s 1993 Supreme Court opinion in Nixon v. United States cemented the Senate’s power to choose its own impeachment procedures, bringing finality and certainty to the impeachment verdicts of the U.S. Senate, reiterating Alexander Hamilton’s faith in its deliberative powers.
The United States uses one standard for both judicial and executive impeachments. The massive 1970s Richard Nixon House investigation and related research, which produced the 1974 staff report, followed by the late 1980s Clinton impeachment materials implementing many of those concepts, make clear (for anyone who doubted) that the standard for judicial impeachment and presidential impeachment are one and the same: “other high Crimes and Misdemeanors.”
A Congress experienced and prepared to efficiently impeach and try cases, well educated and well prepared on the nature of duties and harm involved, and with an understanding of the flexible scope of “high Crimes and Misdemeanors,” can confidently, with precedent, deter some misconduct, cause resignations, and—when necessary—remove malfunctioning officers who pose substantial risk to the country we love. The Impeachment Clause in the twenty-first century has reached stability and maturity with increasing use, experience, and precedent. The Impeachment Clause remains as necessary, exciting, and important as when Madison, Morris, and Mason debated it, when Alexander Hamilton predicted it would check executive abuse of power, and when James Madison explained its necessity to protect against a president’s betrayal of trust to a foreign power, negligence, corruption, or incapacity…and when Thomas Jefferson failed in his policy disagreements and angry efforts to rid himself of Justice Salmon P. Chase.
U.S. history now provides us a line of clear precedent—particularly the first impeachment conviction, which centered on a judge incapable of intent (“insane” in the parlance of the day). A key portion of the Pickering impeachment articles provides a remarkably modern-sounding phrase: the judge was “guilty of other high misdemeanors…degrading to the honor and dignity of the United States.”325 The case established that no intent need be proved to convict; the criteria is harm and potential harm under “high Crimes and Misdemeanors.”
THE MOST IMPORTANT LESSON: PARTICIPATE IN OUR DEMOCRACY. VOTE.
With love for my country and great hopes for the generations to come, the most important lesson this work reinforced is that a citizen’s vote in congressional races is a most important vote. The U.S. citizen’s vote every two years for our congressional House members (two-year terms) and senators (six-year terms, with approximately one-third up for reelection every two years) will put into office the front-line decision makers: Representatives who hold the power to investigate and decide whether to impeach and senators who will decide whether to acquit or convict and then, if convicted, whether to bar a convicted officer from again holding office.
What should citizens do? Register to vote. Vote. Tell your friends to vote, and tell your Congressperson how you feel. Learn the law of impeachment.