The decision by the United States Congress to commence impeachment proceedings against the incumbent president is fraught with distinctively American and global implications. The early responses of the president suggest that it is only a political act by the speaker and the Democratic party with the 2020 presidential elections looming large.
Is the decision to impeach a president a political rather than a constitutional decision? In a letter of October 8, the White House counsel, Pat Cipollone, writes to the speaker and other officials, that the procedure thus far adopted is “unconstitutional” and a “dangerous path” aiming at overturning the “results of the 2016 election and deprive the American people of the president that they have freely chosen”.
But the very case cited as an authority — Hastings v US (1992) — says otherwise: “Impeachments are not political in nature. To impeach an Article III Judge, the judge must be brought up on real charges, that is, High Crimes and Misdemeanours, and receive a real trial before the full Senate as clearly required by the Constitution. Nothing less will do if this nation is to maintain an independent judiciary”. That case spoke mainly about the impeachment of federal justices, and only addressed the senate proceedings for the removal.
The court did lay emphasis on fair procedure but only in the context that applied to senate trials. It held that impeachments “take place not when government is operating as it should but rather when government has gone hideously awry, when it is seriously alleged that a high and trusted public official lacks the respect for law and ethics necessary to hold an office of public trust”.
But it expressly disavowed any intention of “depriving the House or the Senate of one iota of their exclusive constitutional powers to impeach” in holding that Judge Alcee Hastings was entitled to a full trial by the senate.
Propaganda trumps law here when the White House counsel calls the impeachment motion itself “unconstitutional”.
The constitution does not provide any timetable; and the incumbent is always free to combat this at a political level. But no one has the unilateral power to annul a constitutional provision. The sole power to impeach a president (and other civil officers of the United States) rests with the House and the senate when it finds that the president, among other federal officers, has committed treason, bribery, or other high crimes and misdemeanours.
And so far, decisions to impeach and convict and remove from office are regarded as not reviewable by any court. Indeed, this high power has been very sparingly exercised: Only 15 impeachments (12 addressed judges, one a senator, one a secretary of war) have occurred, and only one president (Andrew Johnson) was impeached and he too escaped conviction by one vote in the senate. President Richard Nixon chose to resign rather than face the Watergate impeachment.
If the White House counsel’s ultimate argument is to be adopted, any attempt to impeach the president would be an unconstitutional deprivation of an electoral outcome favouring the incumbent. Article II of the US Constitution will be a dead letter as far as the US President is concerned. In deciding the charges of impeachment, the House decides the procedure and to challenge it now on fairness grounds will be itself unconstitutional.
One hopes that saner counsel will prevail and desperate attempts at intimidation of the speaker and other officials with multifarious legal proceedings will cease.
If President Trump stands successfully impeached, the question of presidential pardon may arise. In such a situation, self-pardoning is not likely to be upheld as legal nor constitutional. However, we need to recall that in 1973 the Office of Legal Counsel memorandum stated that while “no one may be a judge in his own case”, the 25th Amendment provided that if the president was temporally unable to perform the duties of his office the vice president as acting president could include the power to pardon the president. Whether the president should resign or resume the office would then be at his discretion.
The successor may exercise pardon power as did President Ford who pardoned Richard Nixon for “any crimes he has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”.
And Chief Justice Warren Berger has ruled that the power to pardon “flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress”. Most commentators endorse this proposition; but insert the caveat that clemency is only to be exercised for federal offences leaving individual states the freedom to prosecute for other offences.
Since President Trump is an admirer of Indian democracy, he may find it interesting to learn that the Indian Supreme Court has interpreted the rule of law as entailing that public powers ought never to be deployed for private ends and that this has now become the cornerstone of Indian constitutionalism and legisprudence.
He may also benefit from the Gandhian doctrine counselling that all public power constitutes public trust, which has now found full recognition in environmental and constitutional jurisprudence. President Trump may be surprised, happily one hopes, to learn how issues of hyper-partisanship are not held pertinent to Indian constitutionalism.
The recent UK Supreme Court decision setting aside the royal prerogative to prorogue the House of Commons also reminds us of the judicial wisdom. It is high time to avoid the Cold War politics of “political brinkmanship”. Such styles of governance are least conducive to world peace and security.
America still claims the leadership of the “free” world and enjoys, even when deeply flawed, global hegemony as a solitary superpower. President Trump ought to realise the global responsibilities of an American President and seek to preserve, without any gratuitous overseas advice, a bicentennial constitutionalism and the American presidency. He ought to safeguard the proud heritage of a constitutional democratic tradition.
This article first appeared in the print edition on October 24, 2019, under the title ‘The power to impeach’. The writer is a professor of law, University of Warwick, and former vice-chancellor of Universities of South Gujarat and Delhi
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