A history of impeachment, part II

In part I on Friday we looked at how impeachment originated in Britain: first to deal with criminal conduct, then becoming a tool to enforce accountability of ministers to parliament, finally becoming obsolete with the rise of political parties and something like modern parliamentary government.

The United States constitution, which came into force in 1789, was loosely based on the way things worked in Britain. But the Americans took rather too seriously the views of Montesquieu, who, writing in the 1730s, had attributed the success of the British constitution to the separation between executive, legislative and judicial powers.

As a result, they missed out on the significance of the cabinet, which in Britain had grown to co-ordinate executive and legislature – as it still does. Instead, they established a system more like what had prevailed in Britain about a century earlier, when monarch and parliament were independently powerful and often came into conflict.

The authors of the constitution, however, were aware of this problem, and they took three steps to try to ensure that their parliament (or Congress, as they called it) would have the upper hand:

1. Ministers and other senior officials could only be appointed with the “advice and consent” of the Senate, the upper house of Congress – this was the power that the British parliament had gone to war with Charles I over;
2. A number of powers that in Britain belonged to the monarch were explicitly abolished (such as the power to dissolve parliament) or transferred to Congress (such as the power to declare war);
3. Instead of a hereditary monarch, the remaining executive powers were lodged in an elected official, the president.

These changes ensured a permanent role for Congress, but they also entrenched the separation of powers. Since the president was a politician among politicians, members of Congress had less interest in reducing the office’s powers – they might hope to get the job themselves one day. And because its members could not sit in Congress, cabinet could not develop the co-ordinating role that it had in Britain.

More generally, the growth in the size and complexity of government over the next two centuries inevitably added to the power of the executive. But whereas in Britain that meant a cabinet whose composition was ultimately determined by parliament, in the US it meant a president who had an independent electoral mandate of their own.

So while the British monarch gradually became no more than a ceremonial figurehead, the American president not only failed to follow suit, but became much more powerful than the founders had ever intended.

Among Congress’s possible strategies to rein in that development, one weapon was impeachment. But it was poorly designed for the purpose, because, based on the position in eighteenth-century Britain, it was mostly intended for a quite different purpose: the punishment of actual crimes (bribery, corruption and the like) among government officials.

That’s not to say it couldn’t be used for political disagreement, but it meant the wording of article II, section 4 – “treason, bribery, or other high crimes and misdemeanors” – would have to be stretched. In 1803, Thomas Jefferson persuaded Congress to impeach a Supreme Court judge, Samuel Chase, for siding with his political opponents. But Chase was acquitted by the Senate, and the attempt was not repeated.

Then in 1868 conflict between president and Congress came to a head, with opposing views on reconstruction and black civil rights. The majority in Congress was able to implement much of its policy by legislation passed over the veto of president Andrew Johnson, but it could not force Johnson to appoint sympathetic officials or stop him from frustrating it in various ways. So it tried to remove him, but fell one vote short in the Senate.

That pretty much ended the attempt to bring anything like parliamentary government to the US. Presidents accrued more and more power, and only when Richard Nixon was foolish enough to keep tape-recorded evidence of his own guilt in obstructing justice did impeachment rear its head again. Even then, he was never convicted: he resigned first, and was then pardoned by his successor.*

As I explained last year, Nixon’s case was the last outbreak of bipartisanship in relation to presidential crimes. Since then, party lines have hardened and it has become impossible for a party to dispassionately consider the acts of its own president. That’s especially so for the modern Republican party; as I put it:

[I]f Trump’s party does abandon him, it will probably happen suddenly; a line of some sort will be crossed, and the ground under the president will fall away quickly. So perhaps it’s in the nature of the case that we can’t see the line in advance. But it could also be because it just isn’t there, and this Republican Party in reality will follow Trump anywhere.

In Britain, it was the arrival of party discipline that ended the monarch’s ability to exercise independent political power. In the US, however, it has merely solidified the gridlock between president and Congress. And without some major constitutional overhaul (which is as unlikely as ever), there seems no way out of the mess.

* Unlike the British practice, impeachment in the US can only remove an official and disqualify them from office; any further punishment is a matter for the regular courts. The constitution also took away the option of bills of attainder, which parliament had used to remove the Earl of Strafford’s head.