Yesterday I published an article that focused, among other things, on the significance of the fact that, according to Article V of the U.S. Constitution, it takes fewer states (a lower supermajority) to propose changes in the U.S. Constitution than it does actually to change it. More often than not people note the difference without bothering to think about what it means. Simply put, it suggests an intent to make it easier to propose Constitutional changes than to make them. Obviously, so-called “originalists” (people who profess to interpret the Constitution’s provisions in light of their original purpose or intent) should take this difference seriously.
This should apply as well to the other most notable instance in which the Constitution requires different majorities for different actions, i.e., the impeachment and consequent removal from office of the President of the United States. In this case, the difference is even more striking. In the House of Representatives, a simple majority of votes is required to impeach the President. But to remove him from office requires a 2/3 majority in the U.S. Senate. Not only is the requisite majority different. Two different bodies are involved in producing it—one representing the people of the States divided into different districts within each state; the other representing the residual sovereignty of the State governments. (This latter fact was, of course, more obvious when Senators were chosen by vote of the legislature in each State, rather than by the people at-large.)
These days, the temptation to think about these differences (much less think them through) is thwarted by the tendency to use the word “impeachment” as a catch-all phrase encompassing the activity of both these bodies. As a result, people tend to accept the notion that it makes no sense for the House to impeach unless there is a good prospect of getting enough votes in the Senate to remove. Because people accept this questionable assertion, it never occurs to most people to wonder why the Constitution made it so much easier for the House to take action on impeachment.
In fact, it is formally no more difficult for the House to impeach the President than to pass a law, or organize itself for conducting its everyday affairs. This suggests that impeachment was intended to be an ordinary occurrence. The conflation of impeachment and removal has kept Americans from thinking this through. It has also led them to inflate the significance of impeachment proceedings. This inflation leads them to accept an approach to impeachment that deprives the House of its Constitutionally critical role in the process of constraining Executive abuses.
Right now, for example, the cry has gone up for a “Special Prosecutor” to look into alleged misconduct by President Trump. But what is the business of the District Attorneys and other prosecutorial officers under our system of law and government? Their business is to assure that alleged breaches of the law have been properly investigated; to oversee and evaluate the results of such investigations; to decide whether enough evidence exists to warrant that some person or persons be charged as perpetrators; and then to indict those perpetrators for their misdeeds in light of the evidence and applicable provisions of law.
But what else is a bill of impeachment against the President of the United States than such an indictment? Its adoption signifies the House’s demand that the President’s alleged “high crimes and misdemeanors” be brought to trial before the U.S. Senate, with the Chief Justice of the U.S. Supreme Court presiding, as the Constitution requires. But just as the process of indictment requires investigation, so the process of preparing a bill of impeachment requires it. For any officials other than the President, such investigation can make use of ordinary subpoena powers. But as Chief-Executive of the U.S. government, and Commander-in-Chief of the nation’s armed forces, (with, among other things, the power to pardon all offenses save those involving cases of impeachment) what subordinate executive officer has the power to compel action or testimony by the President, or any agent or officer he or she chooses to protect?
The effective answer to that question is the reason for the prerogatives generally referred to as matters of “executive privilege.” In times of war, when secrecy and dispatch can be absolute imperatives, it’s not at all hard to imagine why some such privilege makes sense. But precisely because it does, the prerogative it involves may, if abused, pose a direct and immediate threat to the liberty and sovereignty of the people, and the Constitution of government that exists to implement and secure their rights.
These observations imply that impeachment proceedings should be as much a part of the routine business of the House as electing a Speaker, or choosing members to chair the different committees—which is exactly why impeachment requires no more than a simple majority of the House. It is likely to be too late to react effectively to abuses of executive privilege, once they have already created an unmistakable crisis, threatening the nation with egregious immediate damage, whether from foreign or domestic sources.
To be forewarned in time, there must be ongoing vigilance, constantly maintained, so that abuses are noted, investigated and curtailed before dealing with them involves enormous difficulty. Vigilance should be easy. Thorough investigation should be routine; so that government officials at all levels are admonished to respect the fact that their oath of office requires loyalty to the Constitution, not personal fealty to any individuals in high office, including the President. The Constitution assigns responsibility for this ongoing vigilance to the House of Representatives. Maintaining it should be as routine as all the other affairs the House conducts by simple majority vote.
It’s long past time for the House to discard the anti-Constitution conflation of impeachment with removal. Thanks to that misconception the House has been derelict with respect to its impeachment responsibility. Just as there are committees for dealing with other areas of its responsibility, there should be a permanent Committee on Impeachments, separate and distinct from the House Judiciary Committee. It should be supported by a staff of experienced investigators, overseen by lawyers experienced in both prosecution and defense. It should conduct its affairs under the rubric of House resolutions that open cases of impeachment whenever, in the judgment of a majority of the House, there is credible prima facie evidence in support of allegations of abuse against any impeachable officer of the government, up to and including the President.
The initiation of the impeachment process should be routine. Approval of a bill of impeachment for action by the U.S. Senate should be occasional. I have no doubt that removal would continue to be exceptionally rare. Note that the aim of the impeachment process must be as much to exonerate as to accuse, in strict accordance with the facts and applicable laws, including of course the Supreme Law of the Land. Only thus can the process of impeachment respect and nourish the ability of the people to trust in the integrity, competence and loyalty of the government that exists to secure their rights, including liberty, from government abuse; while preserving the effectiveness of the Constitution that is supposed to implement their sovereignty as a people.