IMPEACHABLE OFFENSES: A DOCUMENTARY HISTORY FROM 1787 TO THE PRESENT by Emily Field Van Tassel and Paul Finkelman (Editors). Washington: Congressional Quarterly, Inc., 1999. 326 pp. Hardcover $41.50, Paper $23.75. ISBN 1-56802-480-0.

Reviewed by David S. Mann, Professor of Political Science, College of Charleston. Email: Mannd@cofc.edu.

  Editors Van Tassel and Finkelman couldn't have had a better or more timely idea--compile a documentary history of impeachments in the United States.

Sound familiar? Written by Henry Hyde and the House Managers about Bill Clinton? Nope. Would you believe the quote was from the closing argument of Representative John Bingham at the impeachment of Andrew Johnson? We could have heard that quote last January. In a nutshell, that is what makes this book fun.

Including an introductory Part I, this book divides its coverage into six parts. Some of Madison's notes and the now much more familiar Federalist 65 and 66 may quench the thirst of those who insist on beginning constitutional discussions with the framers' intent, and consume most of Part II. Part III addresses what the editors refer to as "some recuring issues" (41), especially one that Bill Clinton's defenders often cited: behavior that is not criminal cannot be impeachable. To my personal surprise, some of the best material in this section comes from the plume of Alexander Hamilton, whose own "private behavior...raises serious suspicions of official misconduct" (41).

As the editors report it, Hamilton's famous plans which he drafted as Secretary of Treasury left open the possibility that if carried out, the policies would permit careful speculators to make a considerable profit. An investigation showed that Hamilton had made payments to one such speculator, James Reynolds. Hamilton's defense was that the payments were not for engaging in speculation but rather because Hamilton had an affair with Reynolds' wife, which Hamilton sought to cover up. Hamilton wrote a line which could have been penned much more recently: "The truth was, . . . I dreaded extremely a disclosure--and was willing to make large sacrifices to avoid it" (51). An interesting admission from the man whose likeness graces the ten dollar bill.

Part IV reviews the impeachment proceedings against judges, legislators, and cabinet officials. The editors review thirteen judicial impeachments, one senate impeachment (William Blount, who was expelled by the Senate and the impeachment of whom was dismissed), one judicial censure, and the impeachment of Secretary of War Willilam W. Belknap. Part V provides the presidential history: Andrew Jackson's censure, the impeachments of Andrew Johnson and Richard Nixon, and, alas, only part of what we just lived through. Part VI provides excerpts from Ritter v. US and NIXON V. US (the judge, not the president).

The decision of Congressional Quarterly to publish this book should be applauded. Several months ago I inquired on PSRT-list about whether any of the 1999 American Government texts would be delayed because of Bill Clinton's impeachment. (The answers I received, though varied, all had the same general answer: not in the texts themselves.) So when Neal Tate asked me to review IMPEACHABLE OFFENSES, I had to say "yes." But I was skeptical. Documentary histories often can bore even the most curious reader. Van Tassel and Finkelman wisely limit their own words and let the documents speak for themselves. There are more great documentary quotes that reflect our most recent experiences than can be shared in this forum. But I can't resist.

For instance, central to the discussion of the judicial impeachments is the theme that the "good Behaviour" provision of Article III permits judicial impeachments even when the offending acts are not "high crimes and misdemeanors."

Is this a Gerald Ford rant against William O. Douglas? Nope. This statement was elicited against Judge Robert W. Archibald in 1912, who was charged by the House with, among other things, influence peddling, having business dealings with potential litigants, and improperly accepting gifts from litigants. There were thirteen articles of impeachment against Judge Archibald, who sat on the short-lived Commerce Court. He was convicted by the Senate on five articles and also disqualified. The impeachment of Judge Harry E. Claiborne in 1986 applied a Senate rule adopted in 1935, which permits the Senate to "designate a committee to hear evidence and then report to the full Senate for a vote" (169).

This procedure was to be challenged in court by Judge Walter L. Nixon, who argued that the Senate procedure violates the impeachment clauses. Most readers know that the Supreme Court rejected Nixon's challenge based on the political question doctrine. Interestingly, Nixon may have had a point. Van Tassel and Finkelman point out that "three of the eight "not guilty" votes that Nixon received on the first article of impeachment came from senators who sat on the evidentiary committee. Five of the nineteen "not guilty" votes on the second article again came from the only senators who heard all of the evidence in the case" (181). The editors do not offer their views on the wisdom of the Senate rule. They are consummately non-judgmental and leave us to think for ourselves, perhaps with the hope that we may take a lesson from this history.

But while the judicial impeachments have been more numerous, it is of course the presidential impeachment that attracts attention. Compared with judges, should presidents be more subject to impeachment, or less? In January, we heard all these arguments, succinctly summarized by Van Tassel and Finkelman: " [T]he president is the...moral...leader of the nation who should be held to a higher standard of conduct. On the other hand...the president should be less readily subject to impeachment, because the impeachment of presidents, unlike judges, calls upon Congress to override the democratic process by removing the people's chosen leader" (199-200).

In this Part V, the editors attend to three presidential censures as well as the presidential impeachments. I found the brief discussions of the Jackson, Tyler, and Polk censures fascinating. They illustrate the unmistakable pattern that clashes between the White House and Congress, though often couched in constitutional language, are inherently political and partisan, and, in the instances of Tyler and Polk, most often forgotten entirely. But not in this well-researched book. I would parenthetically note that many of the documents, especially including various reproduced articles of impeachment, are a treasure trove for a scholar who might analyze the rhetoric of impeachment. With eyes and ears glued to C-SPAN just a couple of months ago, I couldn't help but observe the political rhetoric of impeachment. Having read the documents included in this book, I can report to readers that it seems always to have been so--impeachment is clearly political, not judicial.

The discussion of Bill Clinton's impeachment follows those of Andrew Johnson and Richard Nixon. The editors begin with Whitewater and continue through Paula Jones and Monica Lewinsky, in what for the editors is a long (five pages) narrative. There are thirty pages of documents on the Clinton impeachment, beginning with a summary of the Starr Recommendations to the House and the David Kendall-directed document put forth to the House in Clinton's defense.

Unfortunately, this book went to press in November of 1998. We are left to our own devices to gather and reproduce the Clinton impeachment trial documents, and, in essence, finish the book. Perhaps Congressional Quarterly will underwrite another edition. The recent events drew attention to impeachment for the first time in twenty-five years, when a previous "water" entered our lexicon; ever since, we have been flooded by "-gates." Notwithstanding the unlucky publishing deadline, I am seriously considering this book as a required supplement for my undergraduate Constitutional Law course. Libraries should order this book. Those who study the constitution should own it.

Copyright 1995