Vol. 2 No. 8 (August, 1992) pp. 116-118

CRIMES, FOLLIES, AND MISFORTUNES: THE FEDERAL IMPEACHMENT TRIALS by Eleanore Bushnell. Urbana, Illinois: University of Illinois Press, 1992. 380 pp. Cloth

Reviewed by John Moeller, Luther College

Eleanor Bushnell's CRIMES, FOLLIES, AND MISFORTUNES: THE FEDERAL IMPEACHMENT TRIALS tells the stories of the fourteen federal officers who have been impeached by the House of Repre- sentatives and tried by the Senate. Bushnell offers some anecdotal and contextual information about the actors and times but devotes most of her effort and attention to the specific articles of impeachment and the trials that followed. She relies heavily on the official transcripts and gives a full chapter to each trial (because the impeachments of judges Alcee Hastings and Walter Nixon occurred after she had completed her study she summarizes them in an epilogue). From these accounts the reader learns such tidbits as which officers attended their trials (and which skipped town), who managed for the House and who defended the accused, how much time transpired from beginning to end, and who said what as the trial unfolded. More important, Bushnell carefully lays out the central issues and arguments that dominated each trial and frequently draws comparisons among the trials.

One cannot help but admire the careful attention to the language and logic of the participants in these impeachment proceedings. There is, however, one drawback to such an approach: the reader never gets the sense of political drama that one would expect to find in an event that has recurred only fourteen times in the history of the United States. To be sure, the lack of drama may have less to do with Bushnell's approach and more to do with the way the impeachment process has played itself out over the years. Some of the trials during the first century of the nation's history were both extraordinarily political and dramatic. In the first federal impeachment the Senate tried (and failed to convict) William Blount even though that same body already had expelled him. Blount refused to attend the trial and returned to Tennessee as a hero where he was elected to the state senate within a year. The trials of Federal District Judge John Pickering and Supreme Court Justice Samuel Chase also reflect the political hatred the Federalists and Republicans felt for each other. We may fret about the politicization of the bench in the 1990s, especially in the appointment process, but who can begin to imagine what the judiciary would look like had the Republicans succeeded in their overly partisan attempt to remove the Federalist Chase (who was not without problems, to be sure) after getting rid of the unappealing and alcoholic Federalist Pickering. And every school child knows something about the political context in which President Andrew Johnson was impeached and tried. By contrast, each of the seven trials this century has involved district judges and six have responded to blatant criminal activity or obvious unfitness for the job. The three most recent trials, which readers of the book would know from personal experience -- Judges Claiborne, Hastings and Nixon -- received regular coverage in the press but really were rather uneventful. Neither had anything to do with preservation of the union or abuse of political power but instead were used to cleanse the judiciary of two convicted criminals and one alleged criminal.

And yet, as one probes the arguments on both sides, which Bushnell does with clarity and diligence, it soon becomes apparent that although they lack drama they do reveal an ongoing conver- sation about both the original and evolving rationale for constitutionally establishing impeachment as a way of removing federal officers. In trial after trial the competing advocates appeal to the underlying theory in arguing the facts of their specific case. They frequently raise the question that is at the heart of Bushnell's inquiry: must "an offense be a crime indictable in court, [or]...performed in the accused's official capacity, or...be proved to be willful misconduct" for it to be an impeachable offense? And they ask the equally vexing question: what exactly constitutes "high crimes and misdemeanors"?

Page 117 follows:

Although there are obvious limits to generalizing from fourteen trials, especially when each has its unique circumstances and characteristics, one can conclude with absolute certainty that there is no neat definition of what constitutes an impeachable offense. In fact, Bushnell's choice of a title for the book reflects at least three different grounds for impeachment: five were the result of indictable crimes; five resulted from "breaches of judicial propriety" or the inability to carry out one's office (follies in Bushnell's mind); and four involved men who had the misfortune to be targeted by political interests and, in Bushnell's opinion, unfairly impeached.

Bushnell seems almost wistful in her desire for greater clarity and she certainly would not be pleased with Gerald Ford's observation, which came back to haunt him when his boss was about to be impeached, that a high crime or misdemeanor is whatever a majority of the House of Representatives votes it to be. Because the impeachment process has been used so often to remove judges, Bushnell argues that the House and Senate could gain some precision by referring specifically to the Article III requirement that judges "shall hold their office during good behavior" when deciding whether or not to impeach and convict a judge. The problem, of course, is that "good behavior" evokes the same kind of interpretive difficulties that one encounters in "high crimes and misdemeanors." Even when one turns to a careful historical analysis of the sort Raoul Berger provides in his study of impeachment, the interpretive problem remains. It helps to know that the Framers thought of impeachment almost exclusively in terms of the presidency and that they intended to limit high crimes and misdemeanors to "great offenses" but even that invgěwes another imprecise term that is open to interpretation. Gerald Ford may have uttered his assessment of what constitutes an impeachable offense with a degree of cynicism but the reality is that he proba- bly was right.

Does that mean the impeachment process is a mere political event? Most likely. Whether that is a deficiency, though, depends on what one means by political. It seems sensible that one can be acquitted in a court of law and still be impeached and convicted in the Senate, as was Alcee Hastings, because there is a difference between the legal conclusion that one has violated the letter of the law that the larger community has codified and the political judgment that one has violated the compact between those who govern and the governed. There also is a difference between a political judgment and a crass partisan act. A process that removes a sitting judge like Halsted Ritter at the time that Franklin Roosevelt was battling the courts simply because he happened to be "the victim of the politically dramatic moment, a handy target" is a process that needs revision.

The irony is that as the impeachment process has become both less political and partisan and more of a "mop-up" mechanism for removing unfit judges from the bench, it has become less threat- ening but also less valuable. Indeed, the three trials of district judges in the 1980s were so politically insignificant that in each case the Senate established a special hearing committee that listened to the evidence so that the rest of the Senators would not be distracted from their regular duties. Even that more limited approach was disruptive and something that Bushnell and others argue could be done as easily and fairly by the judiciary itself. Bushnell is right in suggesting that there are better ways to deal with an occasional judge who is not fit to hold office. Bushnell's historical analysis, which nicely complements Raoul Berger's (1973) more theoretical discussion, does cause one to question the contemporary importance of the impeachment process. When one considers all of the men and women who have held federal office, what does it mean that only fourteen of them have been im- peached and tried and that only seven of them, all judges, have been convicted? The case of Richard Nixon notwithstanding, it may be that the fears of a monarchical President that motivated the Framers to insert the impeachment provisions in Articles I and II are a thing of the past and, furthermore, Bushnell's journey through history teaches

Page 118 follows:

that the impeachment provisions have not proven to be very important. On the other hand, there are many who would argue that one cannot ignore the case of Richard Nixon because the mere threat of an impeachment resolved what otherwise might have become a major crisis in governance. The impeachment process, they would argue, may be just one small piece in a larger puzzle that goes unnoticed most of the time but that is there when we need it.

REFERENCES

Berger, Raoul. 1973. IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS. Cambridge: Harvard University Press.


Copyright 1992