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"?
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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
invgìwes 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.