Legitimizing Impeachment

Abstract

Academic analysis of impeachment is not a crowded field. Most pre-Watergate scholars rely heavily on interpretations of the Federalist Papers, on general constitutional histories and on the dubious lessons of the 1868 trial of President Andrew Johnson. Post-1974 works tend to draw from the works of Irving Brant (1972) and Raoul Berger (1973). Sterling Professor of Law at Yale, Charles L. Black Jr., first published Impeachment: A Handbook in 1974, with the declared intention of clarifying the theories and processes of impeachment for the layman. This guide, reissued in 1998, stimulates renewed debate on the ethics of presidential leadership and abuse of power whilst avoiding an excessive preoccupation with precedent and with the works of Alexander Hamilton and James Madison. His use of “hypothetical,” contemporary examples to illustrate his points (a President's abuse of the I.R.S. to harrass opponents, unlawful impoundment of funds appropriated by Congress and unauthorized wars) reflects the tumultuous era in which his text was first published. Interestingly, despite his self-confessed aversion to the thirty-seventh President, the author is surprisingly sympathetic, by implication only, to some of the Nixon Administration's arguments with the Special Prosecutor's office. This reinforces the reader's impression of a politically neutral work which retains full force and relevance despite the passage of a quarter of a century. Many of Black's points, in fact, bear direct relevance to the trial of President Clinton, particularly his underlying concern that investigative mania might tempt rampantly partisan prosecutors to transgress not only on a president's legal rights as a citizen but also on his rights as Chief Executive. Dilys Hill (1999) raises a similar concern in noting Congress's insistence in 1994 that the Whitewater investigations into Bill and Hillary Clinton's business affairs continue despite the finding of Special Prosecutor Robert Fiske that the White House had not obstructed justice or been guilty of “ethical wrongdoing.”

Black criticizes the Supreme Court's 1974 decision to waive executive privilege and force the release of Nixon's private tapes, a view which places him foursquare with Clinton on the issue of compelling testimony from Secret Service agents, one of the most controversial elements of the Starr investigations. Black also opposes the notion that incumbent presidents should face trial in civil suits and one suspects he would disapprove of incumbents being called to give testimony in such actions (though this is not specifically stated). Black's view that all indictments should be suspended until after the president's term expires is one with which overworked White House lawyers would wholeheartedly agree.