The Uses and Abuses of Presidential Impeachment

Abstract

Impeachment is again a central preoccupation of United States constitutional law and politics. This article casts new light on this debate by examining the law and practice of presidential impeachment globally. It draws first on case studies from countries such as South Korea, Paraguay, Brazil, and South Africa, and then large-n empirical analysis of constitutional texts. Contrary to current American practice, it shows, impeachment is not primarily about removing criminals or similar “bad actors” from the presidency. Instead, it is a tool to exit deep political crises. At its best, impeachment enables a ‘hard reset’ of the political system by triggering new elections. This systemic, rather than individualistic, conceptualization of impeachment is normatively desirable. It ameliorates the rigidity that sometimes characterizes presidential systems, and as we show has no negative impact on the quality of democracy. This comparative analysis has significant implications for the design and practice of impeachment, especially in the United States. In particular, it supports a broader, more political gloss on the famously cryptic phrase “high crimes and misdemeanors.” It also implies that impeachment standards should vary for different kinds of actors such as presidents, judges, and cabinet members, rather than being uniform. Finally it shows how impeachment’s integrity, contra current case-law, can be materially aided by judicial involvement.

Keywords: impeachment, comparative constitutional design, executive power

JEL Classification: K1