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Why Impeachment Fails Liberty

January 27, 2009

Yesterday, the Illinois Senate convened its impeachment trial of Gov. Rod Blagojevich. The governor and his attorneys refused to attend, however, claiming the trial is inherently unfair. Blagojevich stopped short of mounting a Charles I defense – namely, that he is divinely ordained as governor and cannot be removed by any tribunal. Instead, he’s merely complaining that he’s unable to call certain witnesses or mount a full defense.

Blaogjevich’s impeachment raises an obvious libertarian question: Why aren’t more governors, presidents and judges impeached, given the widespread “abuses of power” – the standard cited by the Illinois House of Representatives – by these officials? Was impeachment not designed as a check on executive and judicial malfeasance?

The truth is that impeachment has little to do with “high crimes and misdemeanors” or any standard of constitutional misconduct. In fact, what’s remarkable about Blagojevich’s impeachment is that the Illinois House’s charges actually focus on the conduct of the governor in office. The more recent history of impeachment has been to indemnify official misconduct while focusing on subjects that are not directly related to the officeholder’s performance.The late William Rehnquist – who presided over Bill Clinton’s impeachment trial as chief justice of the United States – wrote in his 1992 book “Grand Inquests” about the U.S. Senate’s impeachment trials of Supreme Court Justice Samuel Chase and President Andrew Johnson. Both men were acquitted after politically charged trials. Chase was accused of misconduct while presiding over two trials and a grand jury. Johnson was impeached when he removed the secretary of war in defiance of a federal law requiring the Senate’s consent. Their acquittals, wrote Rehnquist, ensured the independence of the judicial and executive branches from legislative meddling:

The acquittal of Samuel Chase by the Senate had a profound effect on the American judiciary. First, it assured the independence of federal judges from congressional oversight of the decisions they made in cases before them. Second, by assuring that impeachment would not be used in the future as a method to remove members of the Supreme Court for their judicial opinions, it helped to safeguard the independence of that body.

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[Had Andrew] Johnson been convicted, nothing like the parliamentary system would have descended upon this country. The president would still have been elected to a term of four years and not been in any way dependent on Congress for his election to that office. He would have continued to posses the constitutional right to veto bills passed by Congress. But to the traditional weapons of Congress in opposing presidential actions with which it disagrees – refusing to confirm appointments, overriding vetoes, demanding information from the executive – would been added another one: the threat of impeachment.

The “independence” of the executive and judicial branches do not correspond to increased protection of individual liberties. Quite the contrary, the neutralization of impeachment as a legislative weapon has simply created three branches of government in collusion against the people; each branch is free to maximize its own power safe from the check of legislative impeachment. (As for the legislature, the artificial capping of House seats and incumbency protection measures like campaign finance regulation prevent the people from exercising any meaningful oversight of that branch.) Executive impeachment only occurs now if there’s a total breakdown in the political relationship between the executive and legislature – such as Blagojevich, former Arizona Gov. Evan Mecham and former President Richard Nixon. But the executive really has to go out of its way to piss off the legislature. It is almost never in the legislature’s interest to risk its own piece of the monopoly government pie just to eliminate an inconvenient president or governor.

Modern impeachment has also contributed to the growth of a fourth independent branch of government – the prosecutorial branch. The Blagojevich impeachment is an obvious example. As I noted previously, the elected Illinois Senate is wholly subordinate to the U.S. attorney in Chicago (who was appointed by a now-retired president.) In today’s proceedings, for example, the FBI agent who prepared the criminal information against Blagojevich testified – but only on subjects approved by the U.S. attorney. State senators may not seek any information beyond what the feds are prepared to reveal, which isn’t much. Preserving the secrecy of the federal criminal investigation overrides the legislative branch’s interest in removing corrupt public officials. More importantly, federal prosecutors and investigators must never be held accountable for their own actions.

Unlike the historic impeachments of Chase and Johnson, the few impeachments that have taken place in recent years were not instigated by Congress but by outside prosecutions:

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  • In 1986, the Senate removed U.S. District Judge Harry Claiborne from office for “making a false statement on his tax return,” for which a criminal jury had already convicted Claiborne. (Today, of course, the late Claiborne would likely be confirmed by the Senate as secretary of the treasury.)
  • In 1988, the Arizona Senate removed Mecham after he was indicted for lying to prosecutors in connection with a campaign finance investigation; Mecham was later acquitted of all criminal charges.
  • In 1989, the Senate removed U.S. District Judge Walter Nixon, Jr. from office for “perjury and lying to federal officers” in a case where he was never charged with any substantive criminal offenses.
  • Also in 1989, the Senate removed U.S. District Judge Alcee Hastings from office after convicting him on eight of seventeen impeachment articles, all but one arising from his earlier conviction for bribery; most of the charges accused Hastings of making false statements while defending himself. (Hastings was later elected to the House, where he still serves.)
  • In 2004, the Nevada Senate convicted state Controller Kathy Augustine on a single impeachment article that said she “willfully diverted equipment and facilities for use in her campaign for re-election.” The Senate declined to remove Augustine from office, however, because she’d already paid a fine to the state’s election regulator and, in the words of one senator, removal “would amount to cruel-and-unusual punishment for sending a few faxes and using the telephone.” (Augustine did not complete her term, however, because she was murdered by her husband in 2006.)

The Walter Nixon impeachment is especially noteworthy because the Senate aided and abetted a classic prosecutorial fishing expedition with no underlying criminal act, a point made on the Senate floor by North Carolina Sen. Terry Sanford:

I decided to vote to acquit Judge Walter L. Nixon, Jr., to protest this criminal investigative device of failing to establish a real crime, and then searching around in the ashes for bits of perjury. I also voted to acquit because: First, the false statements, if made, were of trivial matters not related to an actual crime; second, the case against Judge Nixon was contrived and manufactured by the Justice Department, and third, grounded, at least in part, on testimony written for a key witness by Justice Department employees.

This brings us to the final impeachment of recent vintage, that of Bill Clinton. As everyone recalls, Clinton lied during a deposition in a civil lawsuit arising from Clinton’s alleged sexual harassment of Paula Jones while he was governor of Arkansas. Independent Counsel Kenneth Starr, who was already investigating Clinton and his associates over other matters, decided to expand his jurisdiction to include the Jones case. He ultimately subpoenaed Clinton before a federal grand jury, where he again lied about his relationship with a former intern, which was not directly related either to the Jones lawsuit or Clinton’s duties as president.

The Senate showed Clinton more leniency for lying to government investigators then it did Judges Claiborne, Nixon and Hastings. Most dismiss the Clinton impeachment as naked partisanship: Puritanical Republicans punished Clinton for his sexual escapades while Democrats abandoned their traditional outrage over executive lawbreaking and sexual harassment.

But there’s another interpretation to consider. House Republicans impeached Clinton to validate and protect Starr – and by extension, the “independence” of the prosecutorial branch. Regardless of the particular merits, once Starr brought his full prosecutorial power to bear, the House was powerless to exercise any independent judgment. Refusing to impeach Clinton would have undercut the very notion of prosecutorial supremacy – which is a bedrock of the modern state.

Contrary to Republican mythology, Kenneth Starr’s investigation of Bill Clinton had nothing to do with protecting the “rule of law,” because the prosecution itself was wildly disproportionate to the nature of the accusations. Starr employed a massive federal law enforcement apparatus to prove that Clinton lied in a civil court case about a relationship that was, at best, tangential to the subject of the underlying lawsuit.

As for the Democrats, they had to acquit Clinton. It might have been pragmatic to throw Clinton overboard and install Al Gore as the incumbent president going into the 2000 election. But doing so would have established a terrible precedent: That the president of the United States – the most important human being that can exist – could be stripped of his power for lying. If a president cannot lie, he cannot be president. He can’t mislead the people for their own good, say to lead them into war or nationalize the health care system.

So in a very real sense, the House Republicans only impeached Clinton because they knew Senate Democrats would acquit. History may record the sharply partisan votes, but in truth both sides worked together for their common good. Congress preserved the imperial presidency and unlimited prosecutorial discretion – while not losing any of its own ability to undermine individual rights on a daily basis.

Viewed in this context, Rod Blagojevich’s decision to forgo his own Senate trial and wage a seemingly crazy media counter-offensive suddenly makes sense. Blagojevich knows conviction is inevitable. But there’s still a chance Blagojevich can beat criminal charges if he portrays the impeachment proceedings as a mere extension of an abusive prosecutor – which certainly looks to be the case when the U.S. Attorney methodically hides behind his own office to prevent elected legislators from seeing most of the alleged evidence against the governor. Impeachment isn’t protecting the people of Illinois from Rod Blagojevich – it’s protecting the U.S. Attorney from any oversight of his activities, not to mention the legislature from its culpability in Blagojevich’s abuses of power.

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