Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality System

27 Pages Posted: 6 Mar 2020

See all articles by Brian C. Kalt

Brian C. Kalt

Michigan State University College of Law

Date Written: November 17, 2019

Abstract

Gerald Ford famously said, to paraphrase, that an impeachable offense is whatever the House of Representatives says it is, and a removable offense is whatever the Senate says it is. But the legal definition of HCMs is quite broad — so broad that Ford’s formulation can be reconstructed as a limit on impeachment and removal. An impeachable offense is ONLY what the House is willing to say is one, and a removable offense is ONLY what two-thirds of the Senate is willing to say is one.

But as the two parties have grown more polarized, it has become easier to get the House to impeach a president at the same time it has become harder to get the Senate to remove a president. More recently, this divide has widened as the parties no longer simply entertain separate ideologies — often, they perceive separate versions of the facts. In our “two-reality” system, offenses are removable only when they qualify as such in both realities.

This Article traces the evolution of impeachment from the Framers’ original design (Part I), through the institution and evolution of the two-party system (Part II), to the present two-reality system (Part III). Part III concludes by considering what is left: What, in 2020, might get a President impeached and removed? (Answer — quite a few things, albeit extreme ones.) To what extent does the impeachment process constrain presidential behavior even though the prospect for removal is so narrow? (Answer — quite a lot.)

Keywords: impeachment, Trump, impeachable offenses

Suggested Citation

Kalt, Brian C., Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality System (November 17, 2019). George Mason Law Review, Vol. 27, p. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3532797

Brian C. Kalt (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6987 (Phone)
517-432-6879 (Fax)

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