The US Constitution explicitly outlines the causes and procedures for impeachment of the President and other ministers of the US government, e.g., Supreme Court Justices. These are the so-called “impeachment clauses”. (Other parts of the Constitution deal with impeachment, but this is the most relevant for present purposes). Prof. Alan Dershowitz, despite being unfairly perceived as being contaminated through association with Fox News, has performed a valuable service, especially in books like Trumped Up: How the Criminalization of Political Differences Endangers Democracy, by urgently advising against the weaponization of political differences, and even free speech, as tools to further purely political ends. As anyone knows who has followed my “Skeptic’s Collection” columns over the years, in particular, since the disastrous presidential election of 2016, I would like nothing better than to see Donald Trump led away to prison wearing manacles and an orange jump suit. But if this goal, laudable though it is, were accomplished by criminalizing outrageous-but-protected speech, this would redound to the grave detriment of a free society generally for everyone. A brief examination of two examples of the weaponization of political differences will illustrate my point. Consider the impeachments of President Andrew Johnson in 1868 and that of Supreme Court Justice Samuel Chase in 1804.
o The impeachment of President Andrew Johnson
In the aftermath of the Civil War and the abolition of slavery, Andrew Johnson – President Lincoln’s Vice President – was one of the most hated men in America, certainly by the victorious Republicans. (Remember: in 1868, the Republican Party was the progressive political party on matters of abolitionism and black civil rights. Back then, the phrase “radical Republican” – an oxymoron now, unless one is referring to the radical right – struck stark fear into the hearts of Democratic politicians, especially in the former Confederacy, which was still enamored of slavery. Most former slaves who ran for political office during the early Reconstruction ran as Republicans – difficult for us to imagine now, but true.) Perhaps the people who most hated Johnson for his opposition to black civil rights and for his lingering affection for slavery were themselves Republicans in Congress, who set the goal of impeaching Johnson.
The tool they intended to use for this purpose was the Tenure of Office Act (hereafter TOA). In the “appointments clause,” the US Constitution requires that the President appoint Cabinet officers only with the “advice and consent of the Senate”. The “appointments clause”, being part of the “terse text” of the Constitution, could only be changed by the amendment procedure of Article V (e.g., if, hypothetically, the Congress wanted to change the “appointments clause” to require the “advice and consent” of both Houses of Congress). Congress left the “appointments clause” as it was. But it sought to augment the “appointments clause” by requiring the President to seek the “advice and consent” of the Senate in order to dismiss Cabinet officers. Congress approved the TOA, whereupon, in an attempt to effect a wholesale revision of Lincoln’s old Cabinet, President Johnson dismissed Lincoln’s Secretary of War, Edwin M. Stanton, without seeking the Senate’s “advice and consent,” thereby violating the TOA.
The Republican House responded by drawing up Articles of Impeachment against Johnson. Here is where problems began. (By the way, Johnson’s impeachment failed by a single vote in the Senate. No President has ever been removed from office by impeachment and conviction, though Nixon would probably have been the first.) I say “problems,” plural, for two reasons. First, I think I, though only an avocational constitutionalist, could make a credible case that the TOA was unconstitutional, because it attempted to revise the “terse text” of the Constitution by recourse to mere statutory law: “lower” law cannot nullify “higher”. If appointing Cabinet officers is a matter sufficiently grave to require Senate approval, then in what sense is dismissing those officers a less grave matter to be dealt with by mere legislative statute? But be that as it may ...
Far more serious are the other issues cited in the Articles of Impeachment, issues of a purely political – even rhetorical – character. Consider the following, both of which were part of the Articles of Impeachment against President Johnson:
[Andrew Johnson did publicly] make and declare, with a loud voice certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby …
[Andrew Johnson publicly argued that the sitting Congress] was a Congress of only part of the States, thereby denying and intending to deny, that the legislation of said Congress was valid or obligatory upon him …
But Johnson’s argument is a two-edged sword: if the Union were not complete, as it still was not in 1868, then an incomplete Union likewise has no authority to elect a President … like Abraham Lincoln … in which case, Andrew Johnson himself , as Lincoln’s successor, is an illegitimate President.
It is at least arguable, however, that Trump’s exhortation to his supporters to assault dissidents at campaign rallies constitutes incitement, which is another matter altogether. All the above are instances of outrageous-but-protected Trumpian rhetoric born out of due season, but are not for that reason criminal acts.
o The impeachment of Justice Samuel Chase
The impeachment of Mr. Justice Chase harks back to the days when Supreme Court Justices also served, usually as circuit judges, in jury trials. Such was the case with Chase. Justice Chase was an ardent Federalist from the days of President John Adams, and his ardor for Federalism was not affected by his being surrounded, after the tumultuous election of 1800, with Jeffersonian appointees. Under the terms of the US Constitution, moreover, Supreme Court Justices served for life, subject only to good behavior. But the standard of what constitutes "good behavior" was, as now in many ways, quite elastic.
So when Chase delivered an impassioned charge to a jury at a trial in Baltimore, his intemperate rhetoric provided Jeffersonians with the very weapon they needed to impeach Justice Chase, convict him, and remove him from office. Chase was incensed about several issues, but primarily the Jeffersonian Congress' repeal of the Judiciary Act of 1801, which removed several Federalist circuit judges from office; the abolition of property qualifications for voting; and his prosecution of newspapers for the old offense of "seditious libel," i.e. saying bad things about the existing government; and actively campaigning for Federalist President John Adams while on the Federal bench. (Standards were different then, e.g., John Marshall should have recused himself in 1803 during the deliberations of Marbury v. Madison.) All this led to Chase's impeachment by the Jeffersonian Congress. His impeachment failed because several Jeffersonian Senators considered that removing a sitting Supreme Court Justice by impeachment would violate the principle of separation of powers.
Certainly, Chase's jury charge in Baltimore showed poor judgment. At the very least, it would have constituted grounds for appeal: judges at trial are supposed to be disinterested. It might have even provided a rationale for a charge of judicial misconduct. But impeachment for "high crimes and misdemeanors"? That would seem a bit of a reach, like using a Hellfire missile to kill a mosquito. At the very least, the threat of crossing the line separating powers would have had dangerous consequences later, whatever might have been accomplished in the short-term.
The list goes on, but I think you get the picture: if Presidents can be impeached on the basis of what they actually say as protected speech – granted, not all speech is protected – then the First Amendment is in tatters, not only for a sitting President, but for all her / his successors. This illustrates Dershowitz’s point about the mortal danger weaponizing political opinions, (protected) political rhetoric, in particular: if certain rhetorical turns of phrase are outlawed, then, e.g., the Congress could have impeached Justice Ginsburg for her remarks about Donald Trump’s candidacy.
So under what circumstances is it legitimate to impeach a President? The Constitution itself gives us the answer, however its "terse text" has been warped over the years. A President may only be legitimately impeached on the basis of overtly criminal conduct on the basis provided by Article II, Sec. 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
where "high ... misdemeanors" essentially means "a breach of fiduciary duty". Care must even be taken in levying charges of treason -- a word far too irresponsibly bandied about vis a vis Trump and Russia. According to Article III, sec. 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (boldface added)
Regarding matters of such gravity, irresponsible rhetoric, rhetoric not grounded in at least a working knowledge of the relevant constitutional texts, is highly irresponsible. In such contexts, there is never any such thing as "mere" rhetoric. In such contexts, rhetoric is never "mere".
James R. Cowles
President Andrew Johnson's impeachment trial … Theodore R. Davis … Public domain
Andrew Johnson … attributed to William Brown Cooper … Public domain
Samuel Chase … artist / photographer unknown … Public domain
Constitution … US Air Force … Public domain
Benedict Arnold treason letter … NY Public Library … Public domain