The presidency, impeachment and an enduring dilemma

From the debates of the Founders in Philadelphia in 1787 to today’s congressional impeachment inquiry aimed at President Donald Trump, the American government has never resolved a constitutional dilemma: how can the presidency be made powerful enough at the same time that it is made genuinely accountable? The dilemma has only gotten more troublesome in modern times, with the rise of deep partisan polarization, the steady growth in presidential powers, and the spreading notion of a unitary Executive Branch.

After throwing off the yoke of English royal rule, and with it the idea that “the king can do no wrong,” and then growing deeply uneasy over the failed replacement with a Confederation of states governed by Congress alone, America reached for a government that would actually work yet still would answer to, and be checked by, the sovereign people.

That led to two fundamental constitutional choices at the Philadelphia convention. The first was to assign to a single person the office of President (instead of a multiple executive council), elected by the people to head one of the three branches of the new federal government. The second was to restrain that singular officer from abusing the powers conferred.

The ultimate restraint was not, as some observers still argue (and as some delegates at Philadelphia back then did argue), answering to the people at the next election. Rather, the ultimate restraint was to be impeachment—accountability, while still in office, to the peoples’ representatives.

Much debate in the summer of 1787 surrounded the question of how to craft the office of President. In the end, the choice of a single officer grew out of the felt necessity of making the President responsible. As a congressional committee staff recounted that history, in 1974 in preparation for the possible impeachment of President Richard Nixon, “the Revolution had been fought against the tyranny of a king and his council, and the framers sought to build in safeguards against executive abuse and usurpation of power. They explicitly rejected a plural executive, despite arguments that they were creating ‘the fetus of monarchy,’ because a single person would give the most responsibility to the office.” A single President would provide a single person to whom blame for abuse could be easily and directly assigned.

At the same time, no one among the Founders doubted that the presidency they had created would be powerful. Indeed, lodging substantial power to carry out the duties of government in the head of the Executive Branch was one of the specific cures chosen for the failings of the purely legislative government that had existed under the Articles of Confederation. As Pennsylvania delegate James Wilson said at the time, a single executive was necessary for “giving most energy, dispatch and responsibility to the office.”

Knowing English royal history, though, the delegates did not doubt that executive power needed to be restrained. Four hundred years of that history, of the struggles of Parliament to restrain the monarchy, was rich with reliance on the power of impeachment.

In the Mother Country, impeachment had most often been used as a remedy against harms done to the state, not as punishment for ordinary crimes. In Philadelphia in May 1787, that potential remedy had emerged from the beginning of the Founders’ deliberations: four days after enough delegates had arrived for the work to begin, the Virginia Plan was offered, with impeachment listed as one of its provisions.

Throughout the following weeks, serious efforts were made to take that out of the constitutional design, and to rely instead upon the check of future elections. Ultimately, the delegates chose to retain impeachment as the ultimate check against presidential abuses of power. Pennsylvania delegate Benjamin Franklin helped bring about that result, arguing that impeachment was preferable to assassination for a “Chief Magistrate…who had rendered himself obnoxious.” Edmund Randolph of Virginia added that “the Executive will have great opportunity of abusing his power,” especially the power of deploying the military and spending “public money.”

Although a few delegates expressed worry that this remedy would make the President too dependent upon the Senate, which would hold the ultimate power to remove the president from office upon conviction of impeachable offenses, their fears that the President’s independence might actually be destroyed did not materialize. Only if impeachment were actually to become routine, or were too often used for reasons lacking in substance, would there be much threat to the presidency from that source.

Throughout American history, only a total of 19 federal officeholders have faced impeachment charges, including President Andrew Johnson in 1868 and President William Clinton in 1998 (both were acquitted by the Senate). Since 1876, the only federal officers to be impeached (except for Clinton) were federal judges; only six of those 10 judges were convicted by the Senate, removing them from office; others resigned.

Impeachment thus has become one of the rarest constitutional events. That rarity perhaps can be understood as an indication of its gravity, of the reality that it actually functions as a last-resort remedy only. But its rarity may also suggest that it has not been used often enough to give the nation any reliable definition of what kinds of uses of presidential power might exceed the limits of constitutional legitimacy.

With only two presidential impeachments, Andrew Johnson and William Clinton (three, if one counts the articles that were drafted against Richard Nixon but not actually charged), America seems to be left with the unsatisfactory definition that Representative Gerald R. Ford (later President) offered in 1970: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

That imprecision is related to the dilemma that the Founders pondered: given that presidential power exercised by a single individual is great enough potentially to be abused, America has no dependable notion of what the ultimate standard of abuse of power is, or how it might be checked. Given that the history of presidential power since the founding era has been marked only by expansion, not contraction, the potential for abuse may now be greater.

The nation has seen presidential power expand greatly in several bursts —during the Civil War, during World Wars, during the Great Depression, most recently during the “war on terror.” While it may be debatable whether the time has come to invoke Lord Action’s admonition (“All power tends to corrupt, absolute power corrupts absolutely”), the degree of authority now exercised at 1600 Pennsylvania Avenue is indeed awesome and its level raises serious questions about governance.

How that power is actually used, and how it ought to be used, are issues that have grown even more divisive with the deepening of partisan polarization in the nation’s politics in general, and in the nation’s capital in particular. That polarization has given rise to mutual suspicion between leaders of the two major parties, and that suspicion is a predictable factor in dealings between the White House and Congress, and dealings between the two houses of Congress themselves. It is thus no surprise that there appears to be so broad a partisan gulf between the views of what kind of presidential power constitutes abuse and might constitute an impeachable offense.

There is also now an additional factor that prevents the development of any consensus on how presidential power is and ought to be used. That is a further widening of the long-running dispute over the concept of “unitary Executive power.” That is generally understood as a theory that the Constitution, in creating an Executive Branch with a single officer at its head, intends that all power that has to do with execution of the nation’s laws is to be deployed under the unitary direction of the presidency. Currently, this is shown in part in significant challenges to federal administrative agencies in particular, and how much authority over them the White House should be allowed to exert. It is the theory that lies behind the continuing complaints of President Trump and some of his associates about the so-called “deep state,” a bureaucracy that is said to be bent on frustrating Administration policies.

It has particularly strong advocates within the top ranks of the Trump Administration, especially Attorney General William Barr and one of President Trump’s closest White House advisors, Stephen Miller. (On the Supreme Court now, it also has a strong advocate in one of President Trump’s nominees, Justice Brett M. Kavanaugh.)

This theory is now being tested widely in the courts in the rapidly developing lawsuits over subpoenas issued by House of Representative committees during their investigations of the President and his aides and agencies, and especially in the arguments by the President’s lawyers that he and his aides have “complete immunity” to those investigations. As those lawsuits begin to reach the Supreme Court, as they are just beginning to do, it may be that the Justices will find some opportunity to provide constitutional clarity on the current state of presidential power.

In the best of circumstances, perhaps the Justices might find some way to provide guidance to the nation on how modern presidential power is – or is not – subject to limitations, including impeachment.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.