Opening Argument – Why Conviction Does Not Require Removal

National Journal

I have good news for the Senate. And for the House. And even for those who (unlike me) want President Clinton censured rather than removed from office.

The news is that a reinterpretation of the Constitution, based on a close textual inspection, shows clearly that even if two-thirds of the Senators vote to convict Clinton of perjury or obstruction of justice, they will still have the option of letting him finish his term while (if they wish) censuring him. While Rep. Lindsey O. Graham, R-S.C., has publicly so hinted, this view flies in the face of the conventional wisdom, which is that Senate conviction of an impeached President automatically removes him from office.

But the conventional wisdom is dead wrong. And so is the related notion–almost universally espoused in academia, in journalistic writings (including my own, until now), and in the legal briefs of both the President and the House managers–that a President can be impeached, convicted, and removed only for ”treason, bribery, or other high crimes and misdemeanors.”

Have I gone nuts? A fair question. But I’ll bet that you will be driven toward the same conclusion if you study the relevant text of the Constitution (quoted below), and especially if you go on to read a pathbreaking but largely unnoticed scholarly paper by a law professor named Joseph Isenbergh, of the University of Chicago. His reinterpretation unlinks conviction from removal, and unlinks impeachment from ”high” crimes as well.

First, however, clear from your mind the fog of academic and journalistic commentaries, the out-of-context fragments of the Framers’ debates that pervade such commentaries, and the litter of confusing precedents that accompany them; instead, focus like a laser on the bare, unadorned words of the Constitution’s most relevant impeachment clauses, reading them anew in the sequence in which they appear.

Article I, which enumerates both the powers of the legislative branch and the limitations on those powers, has this to say about impeachment: ”The House . . . shall have the sole power of impeachment. . . .

”The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

”Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Note, please, that Article I neither defines the grounds for impeachment nor imposes any limitation whatever on the category of offenses for which a President may be impeached. Nor does it require the Senate to remove an impeached official upon conviction.

By this silence, Article I suggests that the House could impeach a President, and the Senate could convict him–and then hold a separate vote on whether or not to remove him–for any crime, no matter how low or high, or perhaps even for having too many drinks, or for vetoing a popular bill. This is consistent with English and colonial law, under which impeachment was used to punish both ”high crimes and misdemeanors” and a wide range of lesser crimes.

Article I does depart from English law, quite explicitly, by limiting the penalties (”judgment”) that the Senate can impose. These cannot extend ”further than to” removal and disqualification. This language also suggests that the Senate has discretion to impose a judgment less severe than removal–such as censure, recognized in English impeachment law.

Now let’s turn to the far-better-known impeachment provision of Article II, Section 4: ”The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

This provision has long been read as meaning something it clearly does not say: that the listed offenses are the only ones for which the House may impeach, and the Senate may convict.

From this mistaken premise has followed a mistaken conclusion: that conviction of an impeached official must lead automatically to removal.

But Article II, Section 4 does not impose any limitation at all on the grounds for impeachment. Rather, it is essentially a mandatory-sentencing provision, which requires removal if, and only if, the grounds for the impeachment and conviction are ”high crimes and misdemeanors.”

Another problem with the conventional wisdom is the logical contradiction between the notion that Presidents are impeachable only for ”high crimes and misdemeanors” and the undisputed axiom that they are also impeachable for crimes such as murder and rape. Such ”private” crimes were clearly not considered ”high crimes and misdemeanors” under English and colonial law as of 1787 because they were not directed specifically against the state. Nor can the impeachability of murder and rape be logically reconciled with the President’s claims that he can be impeached only for grave abuses of his executive powers.

These logical contradictions disappear once it is understood that–both in the English tradition that the Framers adapted and in the words of the Constitution that they so carefully drafted–murder and rape need not be ”high crimes and misdemeanors” to be impeachable.

The above analysis is derived in large part from the scholarship of Professor Isenbergh, who specializes in international taxation while dabbling (brilliantly) in constitutional excavation. He first propounded his theory in 1975 in a student note in the Yale Law Journal, where he was an editor. Last fall, he prepared an updated and expanded version, titled ”Impeachment and Presidential Immunity From Judicial Process.” It can be found on his law school’s Web site, at

My brief summary can hardly do justice to Isenbergh’s powerfully reasoned exposition of the language and history of the impeachment clauses.

In any event, the Isenbergh reinterpretation obviously does not resolve the Clinton case. But it does provide a road map for amending the Senate’s rules to escape the straitjacket of equating conviction of an impeached President with removal. This would enable any Senators in either party who end up convinced that the President committed crimes to vote their consciences both on the question of guilt and on the question of removal.

The conventional view that conviction necessitates removal puts unhealthy pressure on both anti-removal and pro- removal Senators, tempting the former to acquit Clinton regardless of the evidence and the latter to classify Clinton’s crimes as ”high” even if that seems a stretch.

The Isenbergh reinterpretation, by contrast, means that Senators who believe that removing Clinton would be bad for the country could nonetheless convict him and could then vote against removal, on the grounds that his crimes were not ”high,” and that the remedy should be censure.

It also means that Senators who believe that the country would be better off with Clinton gone would be free to vote for that result on either of two rationales: Those who doubt that Clinton’s conduct should be classified as ”high crimes”– perhaps out of reluctance to lower the bar for automatic removal of future Presidents–could convict Clinton of low crimes, and then vote for removal as a discretionary remedy; those who consider him guilty of high crimes could simply vote for conviction and then vote for removal.

The bad news, it may be argued, is that the Constitution as I read it means that a President could theoretically be impeached and removed (though not automatically) even for offenses far pettier than Clinton’s. Might not Congress abuse such an unlimited power?

I see little risk of that. The real safeguard against unwarranted impeachments has always been the requirement of a two-thirds Senate vote to convict. It has never been the conventional misreading of the phrase high crimes and misdemeanors–which ultimately means whatever Congress says it means–as a limitation on the impeachment power.

If Isenbergh is right, then how could so many others have been so wrong over the past 200 years, both in reading the plain language of the Constitution and in construing the comments of James Madison and others at the Convention?

That’s a long story. Isenbergh’s article offers a cogent explanation. Every Senator who takes the Constitution seriously should read it. This may be an idea whose time has come.