Time Essay: The Proper Grounds for Impeachment

• Share

IMPEACHMENT. Rarely has a word stirred such passions or borne such grave implications for the future governance of the U.S. And rarely has a word been given such a latitude of meaning. On the broad side, there is the interpretation offered in 1970 (and since qualified) by Vice President Gerald Ford when he was the leader among 110 Congressmen trying to impeach Supreme Court Justice William O. Douglas: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." On the narrow side, there is the argument that a President can be impeached and removed only for an indictable criminal offense.

These are the poles, but if an impeachment is to have any validity, it must surely be based on a middle ground between them. This week the lawyers for the House Judiciary Committee are scheduled to issue their opinion on what offenses are impeachable. Precisely how the report is phrased may have a great deal to do with whether the House votes to impeach President Nixon. And though the point may be heatedly debated, if history and precedent are to be the guides, it is unlikely that the Judiciary Committee's lawyers will find that the President can be impeached only for clear-cut criminal offenses. Most authorities now agree that impeachment is basically a political process, though one still closely responsive to legal precedents.

The founding fathers thought impeachment to be a "heroic medicine, an extreme remedy," as Lord Bryce later called it. They were not looking for a weapon to punish small transgressions. But what should be done if, as Benjamin Franklin asked during the Constitutional Convention, a President "rendered himself obnoxious"? To Alexander Hamilton, the most persuasive apostle of a strong Chief Executive, impeachment was the answer—the ultimate device for checking power in a democracy. In Hamilton's words, it was "a method of National Inquest into the conduct of public men," to be conducted by "the inquisitors for the nation" in Congress.

Treason and bribery, it was readily agreed during the debate on the Constitution, would be obvious grounds for impeaching a President. What else? "Abusing his power," Edmund Randolph of Virginia suggested. James Madison favored protection against "incapacity, negligence or perfidy in the chief magistrate." But when George Mason proposed adding "maladministration" to treason and bribery, Madison thought the word "so vague as to be equivalent to a tenure during the pleasure of the Senate." Borrowing a catchall phrase from English usage, Mason thereupon substituted "high crimes and misdemeanors." Without debate, this curious phrase, which has bedeviled political discourse ever since, became part of the Constitution.