Impeachment As Punishment

Abstract

In their recent book “To End a Presidency,” Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question—why impeach?—through the broader lens of criminal jurisprudence, which perennially confronts a related and familiar question: why punish? That latter question typically attracts a range of responses, which can be organized into three basic categories: Sometimes, punishing a criminal is thought to have concrete benefits, such as protecting the rest of society from future harm. Alternatively, punishing a criminal might be viewed as a morally required response to a wrongful act, irrespective of concrete benefits. Finally, punishment might be viewed as an important sociological practice, whereby society expresses the values it holds most dear and attempts to heal itself when those values are transgressed.

As this essay’s introduction explains, impeachments and criminal prosecutions are not identical proceedings nor do they pursue perfectly identical aims. But still, the trio of explanations offered to justify criminal punishment can help illuminate the complex judgments driving the question of impeachment. Accordingly, the three sections of this essay examine impeachment through the lens of those three theories of punishment, organizing arguments for and against impeachment along utilitarian, retributive, and sociological axes. In so doing, the essay exposes the vexing and inescapable questions that underlie impeachment and criminal punishment alike—questions that may well be unanswerable, but that must be grappled with all the same.

Keywords: Punishment, Impeachment, Criminal Law, Deterrence, Incapacitation, Retributivism, Reconstructivism, Criminal Jurisprudence, Penology, Criminology

JEL Classification: K14, Y30