A comment on late impeachment

[doc_strange]

holzman and rmjwell conversed on the need to vote out those who stalled on impeachment after running on it as a platform, and then of course about impeaching the administration personnel after they leave office; viz holzman's comment in his journal:

Just because a President has left office doesn't mean he -- and his whole damn gang -- can't be impeached. Nor is it an empty gesture. It may or may not affect his pension, but someone who has been impeached and convicted is Constitutionally barred from holding any sort of public office again.

I agree that those who ran on an impeachment platform, then said it was "off the table" or dragged their feet, need to be voted out as lying sacks of political baggage. Note that includes the Speaker of the House among others.  I've been beyond disappointed in that clutch of political hacks.

So, to the real provocative issue - if it's perhaps empty to impeach someone who will soon be out of office, is it an even-emptier gesture to impeach someone after they are out of office? That's a more complicated question than one quick comment suggests!


Impeachment of a former federal office-holder does appear to be available without much counter-argument, but remember that impeachment itself just sets the stage for the Senate to try the case.  Impeachment is like an indictment in that respect.  Now, the issue of whether the Senate can try a former office-holder upon impeachment has come before the Senate only twice in US history. In each case, the House had impeached a former office-holder and passed it to the Senate for trial.  In one case, the Senate decided it did not have jurisdiction over a former civil officer; and once, it decided that it did. The latter is the more recent of the two cases, though it was over a hundred years ago.  The issue has never gone to the Supreme Court (or any 'court' other than the Senate) because, in the one case where it went far enough to be appealed, it seems the penalty was too meaningless for the impeached/convicted to bother (see below).

A fantastic summary of the issues:
http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref

I think we can all agree that the impeachment process is not a substitute for criminal prosecution. Trial of an impeachment does not even activate the double-jeopardy provisions of the Constitution.  In a federal "conviction" from impeachment the only penalty is removal and barring from future federal office; one hopes a normal criminal process would occur subsequently if the crimes were serious enough.

But as holzman suggests, it is at heart a two-armed process: a power for removal from office, and a political process to show disapproval. Operatively, though, its power ultimately affects those in office, though it has once been used to show disapproval even when the first power was mooted, for what good or little that may be worth.  That none of us probably ever learned of it in school is telling.  In the one case of late impeachment where the Senate did try the case, the accused didn't even mount a defense after losing the jurisdiction question, because, basically, it had no effect on him personally.  He was impeached when he was already out of office - the trial at that point was akin to a kangaroo court without teeth. Again, he didn't even bother to take the Constitutional question of jurisdiction to the Court.

So, as to impeachment being an empty gesture when they'll be out of office by the time the trial is done, well, it's certainly even more "empty" when the person isn't even in office any more, given that it is almost certainly going to be subject to the question of whether it can even be tried in the Senate.  So we'll have the time in the House to impeach.  Then the jurisdiction question in the Senate. Then appeal to the Supreme Court. Then perhaps back to trial in the Senate (or the Senate creation of a Constitutional crisis as bad as what they accuse the President of).  What a circus.  What a DELAY to delivering judgment when it could have gone straight to the criminal justice process.

If the official committed a criminal act, once they are no longer in possession of the office, we can just skip the whole impeachment process, get an indictment from a grand jury and then try them in a court of law.  They are no longer protected by or in possession of (and able to abuse) any powers of the office.  Indeed, in the only former-official federal impeachment case that finally went to trial by the Senate, one possible reason the Senate decided to overturn precedent and take jurisdiction is that the underlying act wasn't actually criminal, so without impeachment there would have been no other reprimand (another essay can be had on the score of what "misdemeanor" actually means in the Constitution).  After the person has left office, taking it from House impeachment to Senate trial would almost certainly DELAY the real criminal trial, possibly taint evidence making it inadmissible in the real trial, ruin the ability to get an unbiased jury (forcing mistrial), and even push some acts past the statutes of limitation.  Appoint a prosecutor and let the normal criminal justice system handle it since they are out of office.

I think time at Club Fed expresses public disapproval just fine.  Worked for the ex-governor of Illinois.

Maybe most importantly, why should we act like a person who has committed serious criminal acts while in office is entitled to a special trial with no real penalty by dint of being an EX-official?  Just so one party can publicly state its disapproval?  Win the publicity war but never really punish the bad actor? When the person's already out of office, that's what impeachment trials are, compared with criminal prosecution.  The heck with that.

For a discussion of what impeachment means in the context of the US Constitution: http://www.law.cornell.edu/anncon/html/art2frag42_user.html#fnb747ref

And broader: http://www.law.cornell.edu/background/impeach/impeach.htm

Let's also be clear that the hue and cry for late impeachment is based on the public's reading of the ABSTRACT of one 2001 law review article. It isn't going to be as easy as folks are making it out to be, nor as easy as the abstract makes it out to be. The 2001 article itself makes it quite clear that the arguments for late impeachment are a lot more complicated (and convoluted) than the argument against.  It's a real edge theory piece. You can read the whole thing here -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=286277

The Duke article does a better good job of discussing the issues, I think - http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+1 .  In case someone thinks I am offering it as a counter to the TX one, note that it doesn't argue against the possibility of impeachment of ex-officials at all.  Quite the contrary - it lays out the history, the law, and how late impeachment has actually worked; it is also I think better researched and written.

Comments

[holzman.livejournal.com]

In the interests of clarity, I point out that I certainly do not view impeachment (during or after tenure in office) as an alternative to criminal prosecution. I am also under the impression that those who have served in the administration under Bush can be impeached, preventing them from coming into public position again -- running for Congress, for example, or being appointed to a(nother) cabinet position.

[docstrange.livejournal.com]

In theory, any appointed public official is subject to impeachment.

The rest is fully answered in the long piece above.

[ilcylic.livejournal.com]

I think booting those who ran on a platform of impeachment and then backed out should be booted from office. In the case of Pelosi, who has been a Rep for 20 years, that seems improbable.

I think the practice of bringing former Presidents up on criminal charges will have unintended consequences which vastly outweigh the benefits of bringing a criminal to justice. What better way to convince a sitting president that he should not relinquish the office than to tell him he's going to be put on trial after he leaves?

[docstrange.livejournal.com]

I agree that using the political process to bring ex-presidents to "trial" sets a bad precedent. I don't agree that immunity should in effect be part of the job. If the act rises to criminal justice levels, then let the indictment, trial, appeal, etc. processes handle it. It worked for the governor of IL. If the act doesn't rise to the criminal (a "misdemeanor" in the meaning of the clause), then I rather strongly object to using impeachment as a way around the limits of criminal process once the person is already out of office.

[marsgov.livejournal.com]

The spectre of politically-motivated trials of Bush officials fills me with dread.

[rmjwell.livejournal.com]

Okay, I was mistaken then about the nature of the ability to bring criminal charges that stemmed from activities conducted by a sitting Federal executive. I had the idea that the liability shield (apologies if that is the incorrect term) that the Federal executives enjoy was based on when the act was committed rather than ending upon their exit from office. In my interpretation impeachment would have been the tool used to remove the shield and allow for criminal prosecution to go forward.

[docstrange.livejournal.com]

Immunity within the exec branch is yet another complicated matter.

[also-huey.livejournal.com]

I agree that those who ran on an impeachment platform, then said it was "off the table" or dragged their feet, need to be voted out as lying sacks of political baggage. Note that includes the Speaker of the House among others.

No. As a campaign issue, anyone running for office in 2006 could have done so (and some did!) in good faith with the assumption that the Democrats would take both the House and the Senate with a convincing majority. However, once that election ended a half-dozen Senate seats shy of a filibuster-stopping majority, it became a moot point, as no serious attempt at impeachment would have made any sense or had any chance at success so long as the remaining Senate Republicans could have effectively killed it.

Almost two years have passed. How is it possible that you do not know this?

[docstrange.livejournal.com]

"No" right back at you. Impeachment happens in the House. The Senate has no ability to block that process.

The trial of any articles that are passed then happens in the Senate.

If the purpose of a late-term impeachment is political, not removal, what does it matter whether they force the Republican Senators to filibuster? That would only help draw up a list of who was willing to block the investigation.

If the strength of their political convictions depended on an assumption about winning a super-majority, they could have said so. If the strength of their convictions only extends to easy victories, then they don't warrant the public trust.

[also-huey.livejournal.com]

So what you're hoping for is an impeachment similar to the one Clinton got, a political tap with the coup-counting stick that is otherwise meaningless in any real sense?

Well, geez, that sure taught Clinton a lesson. I bet it works on Bush in just the same way.

This is why the Democrats took impeachment off of the table. Instead of a meaningless circus of CPSAN-wankery, they're trying to get some useful shit done. And you fault them for it. Taste the awesome!

[docstrange.livejournal.com]

Actually, no.

I think you have not read what I wrote in the main post. Maybe you should do that?

[also-huey.livejournal.com]

I have, and I'm still not seeing any scenarios in which this would play out with even so much as that warm fuzzy feeling like pissin' on yerself, much less anything approaching 'justice'.

If politics is a game, George W. Bush has won two rounds, and pretty much everybody else in the USA has lost, and there is no point in arguing calls with the referees. The game's over. We've lost. And it's time for the next game.

[docstrange.livejournal.com]

Again, it sounds like you think I am in favor of impeachment at this stage, when I clearly state that I am not, and then I do state what if any approach I am in favor of.

I think you have an axe to grind, but you've come to the wrong grindstone.

[also-huey.livejournal.com]

I'm reacting to this:

I agree that those who ran on an impeachment platform, then said it was "off the table" or dragged their feet, need to be voted out as lying sacks of political baggage. Note that includes the Speaker of the House among others. I've been beyond disappointed in that clutch of political hacks.

That disappointment seems to be ill-founded, as no real purpose is served by tying up congress for a few weeks with an impeachment proceeding that they know beforehand is destined to be pointless in any practical sense.

So, to the real provocative issue - if it's perhaps empty to impeach someone who will soon be out of office, is it an even-emptier gesture to impeach someone after they are out of office? That's a more complicated question than one quick comment suggests!

No, that question still seems fairly simple. If, in the extant case, it would be an empty gesture to impeach W or Cheney or both, then I fail to understand how it could be any less empty even given some possible future congress (fivethirtyeight.com says that there's around a 14% chance!) where it is even possible to do so.

I believe that the purpose of government is not, as they seem to have thought for the last twelve years or so, pointless petty partisan bickering, but instead TO GOVERN. I'm ashamed that the Republicans lost track of this during the drive to impeach Clinton, and I will be severely disappointed if the Democrats manage to lose track of it anytime soon.

[docstrange.livejournal.com]

So you didn't read past the first section. Fine. Don't try to twist my words or pull from context.

Here. Let me show you: I say, "is it an even-emptier gesture" and you reply "I fail to understand how it could be any less empty." See? Opposite of my question.

Indeed, I ask several questions in response to a post in another journal. See that post, please. I'll wait. Back? Ok, so then I go on to discuss the points raised in the other journal, then some hypothetical objections I expect others to raise, then the legal background with links to two pretty readable law review pieces, and finally I reach a conclusion.

The funny thing is that if you actually read what I wrote, you'd find you're arguing (poorly) my point. If you read the whole thing instead of grabbing phrases in a long discourse out of context, you would reach:

Maybe most importantly, why should we act like a person who has committed serious criminal acts while in office is entitled to a special trial with no real penalty by dint of being an EX-official? Just so one party can publicly state its disapproval? Win the publicity war but never really punish the bad actor? When the person's already out of office, that's what impeachment trials are, compared with criminal prosecution. The heck with that.

So, Huey, I have to ask you, which part of "The heck with that" do you not understand?

[attutle.livejournal.com]

"That disappointment seems to be ill-founded, as no real purpose is served by tying up congress for a few weeks with an impeachment proceeding that they know beforehand is destined to be pointless in any practical sense."

I disagree. Tying up Congress for a few weeks would be a fine start.

[elegantelbow.livejournal.com]

You and I have never met, and may never meet, but you and my sweetheart work for the same company. I have just read thewronghands's post about the contract including the specification about eggs.

Hilarious!