Impeachment and Presidential Immunity from Judicial Process
78 Pages Posted: 24 Nov 1999
The Lewinsky affair played out under ground rules shaped in the Watergate affair, an earlier episode involving misconduct by a President. A predicate of the impeachment of President Clinton was the President's involvement in a private civil lawsuit. A sitting President's exposure to compulsory judicial process has been accepted almost without demur among academic commentators since the 1974 case of United States v. Nixon. As for impeachment, the academic consensus is that the Constitution defines impeachable offenses as "treason, bribery, or other high crimes and misdemeanors," the latter terms describing an imprecisely bounded category of serious offenses. This paper contends that both of these views are misconceived.
The prevailing view of impeachment and presidential immunity slights both the terms of the Constitution and history. The scope of impeachment, based on a straightforward reading of the constitutional provisions concerning it, is demonstrably different from the academic consensus. The text of the Constitution and relevant history reveal that 1) impeachable offenses are not defined in the Constitution; 2) "high crimes and misdemeanors" are an historically well-defined category of offenses aimed specifically against the state, for which removal from office is mandatory upon conviction by the Senate; 3) Congress has the power to impeach and remove civil officers for a range of offenses other than high crimes and misdemeanors; and 4) the Senate can impose sanctions less severe than removal from office--censure, for example--on civil officers convicted of such other offenses. The textual and historical support for these propositions is powerful, if not overwhelming.
When impeachment is correctly understood, the question of the President's immunity from judicial process takes on a different light. There is neither a constitutional basis nor a sound footing in policy for any official action against a sitting President other than impeachment.
Note: This article formerly was University of Chicago Law School, Public Law and Legal Theory Working Paper No. 02.
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