Vol. 6, No. 4 (April, 1996) pp. 74-77

THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS by Michael J. Gerhardt. Princeton: Princeton University Press, 1996. 233 pp. Cloth $29.95.

Reviewed by Barbara Luck Graham, Department of Political Science, University of Missouri-St. Louis.

Michael J. Gerhardt's lucid and thoughtfully argued book, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS, succeeds in clarifying our understanding of the impeachment process in American law and politics. THE FEDERAL IMPEACHMENT PROCESS is a timely and well-researched book that should be of great interest to a broad audience of political scientists, legal scholars, historians and students of the federal judicial process. The book is well written and is appropriate for undergraduate and graduate courses in American politics, constitutional law and the federal judicial process.

According to Gerhardt, the objective of the book is to "clarify the federal impeachment process as a unique political check on judicial and high-level executive misconduct, particularly the special constitutional issues or problems raised by impeachment" (p. x). He goes on to state that, "the book emphasizes the original understanding and current potential of the impeachment process as a unique congressional power. Impeachment is a political process designed to investigate, expose, and remedy political crimes committed by a special class of politicians subject to unique political punishments" (p. xi). Gerhardt's approach to the federal impeachment process is more comprehensive in the sense that he seeks to clarify the process not only for judicial impeachments but for impeachment proceedings against high level officials. Gerhardt avoids any single unifying concept or theoretical approach to constitutional interpretation to explaining the impeachment process. Instead, he employs an analytical framework that casts impeachment as a political process and then highlights the capacity of Congress to make judgments about the Constitution and its ability to impeach high level officials. In addition, Gerhardt brings distinctive insights into the problem of the impeachment process because he served as a special consultant to the National Commission on Judicial Discipline and Removal.

In Part I, chapters 1-2 examine the most important historical debates about the impeachment process in the constitutional and ratifying conventions. He identifies five major areas of controversy at the constitutional convention regarding the nature and scope of the impeachment power. These chapters are brief in the sense that the author does not get bogged down in the esoteric, inconclusive and seemingly never ending debate about the intent of the framers and ratifiers.

In Part II, chapters 3-6 examine trends and problems in impeachment proceedings in the House of Representatives, the Senate and other branches of the federal government. Gerhardt gives the readers a general understanding of the impeachment process in the House and Senate and then he identifies

Page 75 follows:

the major problems arising in impeachment proceedings in both Houses. Gerhardt attempts to "make sense" of past impeachment practices by examining preexisting theories of constitutional interpretation; namely, the formalist and balancing approaches for guidance. In his view, constitutional text and history have failed to provide clear answers to some critical questions about the impeachment process.

In Part III, Gerhardt attempts to clarify various constitutional aspects of the federal impeachment process. In chapters 7-11, Gerhardt focuses his attention on five major areas of concern: (1) the scope of impeachable officials, (2) whether impeachment is the sole means of removing impeachable officials, (3) the scope of impeachable offenses, (4) the proper procedure for impeachment proceedings, and (5) judicial review of impeachments. He makes a persuasive case that the phrase in Article II, section 4, "all civil Officers of the United States," does not include members of the House and Senate. Chapter 8 deals primarily with the removal of federal judges. Gerhardt is certain that impeachment is the only political means to remove federal judges and that another method would plainly violate the principle of separation of powers.

In chapter 9, Gerhardt confronts the thorny problem of the range of nonindictable offenses for which certain high level officials may be impeached. He acknowledges that the full range of political crimes defies specification for a wide range of reasons. For example, some officials have different duties and therefore might have different justifications for their actions. In addition, the political climate at the time may dictate whether the offense is impeachable. The peculiar nature of the political crime may raise questions. Gerhardt uses the example of Justice William O. Douglas's eccentricities as not subject to impeachment, although they may have been offensive to many people in and outside government. The more difficult question concerns wrongdoing or misconduct committed as a private citizen before one assumes office. Keeping in mind that no one has ever been impeached and removed from office for this reason, Gerhardt seems to suggest that pursing an impeachment on this ground would be very difficult for Congress. For Gerhardt, the solutions to the problem of defining the scope of impeachable offenses rest in the safeguards found in Article I, section 3, clause 6 of the Constitution which were designed to ensure that Congress will deliberate carefully before making any judgment in impeachment proceedings.

The language of the Constitution suggests that an impeachment trial be neither a criminal nor civil proceeding. In chapter 10, Gerhardt explores procedural impeachment issues such as the burden of proof, applicability of executive privilege, rules of evidence for impeachment trials and the Senate's use of trial committees to conduct impeachment trials. Gerhardt's conclusions are more definitive when addressing procedural issues. He calls for a balancing approach to the problem of burden of proof in impeachment trials -- a hybrid of the standards of proof in civil and criminal trials. The President cannot withhold information from Congress based on his assertion of executive privilege in order to ensure that he is not above the law. Because impeachment

Page 76 follows:

trials are extraordinary hearings administered by Congress, the special rules of evidence that state and federal courts use do not apply. Finally, Gerhardt is convinced that Rule XI -- the Senate's use of special trial committees for removal proceedings -- is constitutional. However, the Supreme Court's decision in WALTER NIXON V. UNITED STATES (1993) held that a challenge to the Senate's use of special committees for removal proceedings against impeached federal judges rather than the full Senate is nonjusticiable.

Gerhardt continues his exploration of the constitutional underpinnings of the NIXON decision in chapter 11 on judicial review of impeachments. The need for judicial review of impeachments does not bother Gerhardt. He states, "the absence of judicial review ensures that senators involved in impeachment trials will feel a peculiar mix of freedom (from being second-guessed by a federal court) and responsibility (to make the best decision possible given that they are the sole and final arbiters of the impeached official's guilt or innocence) that they experience only on a few other occasions -- namely, confirmation and treaty ratification" (p. 137).

In Part IV, chapters 12-13 address procedural, statutory and constitutional proposals for modifying the impeachment process. Despite proposals for reducing delays in House impeachment proceedings, reforming procedures for Senate impeachment trials, improving Rule XI, or delegating matters to specially hired experts, Gerhardt argues pragmatically that the best reform of the impeachment process "might well consist of more careful consideration by a president of his nominees and more thorough confirmation hearings" (p. 158). Similarly, Gerhardt rejects proposed statutory and constitutional reforms of the impeachment process on constitutional grounds. For Gerhardt, the future of the impeachment process depends on whether Congress is good at conducting impeachment proceedings. His major concern is that the impeachment process neglects to punish officials quickly enough or in a sufficiently informed fashion (pp. 174-175).

A major strength of the book is that Gerhardt is ever-mindful of the practical realities and consequences of the impeachment process. Professor Gerhardt is adept at ferreting out the implications of the impeachment process in light of different theoretical assumptions. However, those interested in detailed descriptive accounts of specific impeachment proceedings should consult Bushnell (1992) or Volcansek (1993). I like the fact that THE FEDERAL IMPEACHMENT PROCESS is not turned into a polemic; rather, Gerhardt offers an evenhanded appraisal of the impeachment process. The book is a useful starting place for those scholars interested in the impeachment process. Although little new ground is broken in the book, students and scholars unfamiliar with the impeachment process will learn much from reading it.

REFERENCES

Bushnell, Eleanore. 1992. CRIMES, FOLLIES, AND MISFORTUNES: THE FEDERAL IMPEACHMENT TRIALS. Urbana, Ill.: University of Illinois Press.

Page 77 follows:

WALTER NIXON V. UNITED STATES 113 S.CT. 732 (1993)

Volcansek, Mary L. 1993. JUDICIAL IMPEACHMENT: NONE CALLED IT JUSTICE. Champaign, Ill.: University of Illinois Press.