Tuesday, August 8, 2017

Even presidents are not above the law in the United States

"Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as President at that hour in this office."

- President Richard Nixon, in the Oval Office at the White House, on August 8, 1974

The executive and judicial branches can have conflicts of interest at times ...

If the government makes the laws, is the government itself above those laws? Or in other words, can the laws be made not to apply to the people in those governments? In the United States, the answer to this question is a resounding "no," because there are mechanisms in place to punish officials who break the laws. These laws apply to everyone universally, including the President of the United States himself (or herself). This is not so much a problem for members of Congress, you see, because when members of Congress break the laws, they can be prosecuted by the executive branch in the courts of the judicial branch (with certain exceptions for when the legislature is in session) just like anyone else can. When lesser judges break the law, they can be prosecuted by the executive branch in courts presided over by higher-ranking judges; so there are mechanisms in place to prevent this as well.

White House

... so all branches of the government are subject to impeachment and removal from office

But if the judges of the Supreme Court break the laws, there is a conflict of interest coming from the ability to be the judges in their own cases, which allows them to avoid negative judgments against themselves even when they're guilty. A similar situation applies when the President of the United States breaks the law, because the President can refuse to allow himself (or herself) to be prosecuted. (With control over federal prosecutions, they would thus also have a conflict of interest in their own cases.) Thus, all members of the government are subject to impeachment and removal from office, and that includes members of the executive branch. Most importantly, it includes the President of the United States himself (or herself); so a review of constitutional impeachment procedures would seem appropriate here. I will first show how the process of impeachment works in this country, and then talk about particular instances of attempts at removal.

Supreme Court of the United States

There is a difference between impeachment and removal from office upon conviction

The Constitution has no provision to remove a president from office in cases where they follow the law; but they do have a provision to remove the president in cases where he (or she) has committed a crime. This power is popularly known as "impeachment," although the word "impeach" merely means "to bring charges against," and (contrary to popular perception) does not mean an automatic removal from office (which is voted on in a separate proceeding). The Constitution says that "The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." (Source: Article 2, Section 4) Thus the Constitution clarifies a difference between "impeachment for" and "conviction of" these high crimes.

White House

How impeachment and removal from office work, according to the Constitution

The difference is further clarified by the different powers of the two houses of Congress, in regards to prosecutions against the president. The Constitution says that "The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment" (Source: Article 1, Section 2, Paragraph 5); but also says that "The Senate shall have the sole power to try all impeachments" (Source: Article 1, Section 3, Paragraph 6), thus specifying that "try[ing] impeachments" is different from the impeachments themselves. The Constitution further clarifies that if the Senators are "sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present." (Source: Article 1, Section 3, Paragraph 6) Finally, the Constitution clarifies further that "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law." (Source: Article 1, Section 3, Paragraph 7)

United States Capitol, the building where the Congress meets

President may grant reprieves and pardons, "except in cases of impeachment"

The Constitution also contains two other references to impeachment, which it may be appropriate to mention here. One of them is that "The trial of all crimes, except in cases of impeachment, shall be by jury" (Source: Article 3, Section 2, Paragraph 3). Thus, impeachment trials do not have to be by jury, because these trials are done in the Senate instead. The other reference is that the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." (Source: Article 2, Section 2, Paragraph 1) This might be a conflict of interest, you see, if the president could grant "Reprieves and Pardons" to his subordinates anytime they committed a crime that he might order them to do. Pardons to himself (or herself) would also be potential conflicts of interest. Thus, presidents cannot grant "Reprieves and Pardons" in these circumstances, since this would undermine Congress's impeachment powers if it were allowed to happen.

Impeachment is an important check

Thus the Constitution specifies important checks on the executive power, which make it subject to the laws passed by Congress - with penalties provided for the breaking of these laws.

Richard Nixon

Actual attempts at removing presidents from office via impeachment (and conviction)

Now for some commentary on actual attempts at removing presidents: In the entire history of the United States, only two presidents have ever been impeached, which were Andrew Johnson and Bill Clinton. Richard Nixon was never actually impeached by either house of Congress. He was, however, credibly threatened with it during the Watergate scandal, and thus forced to resign in this way. It takes both houses of Congress, you see, to remove a president from office. Thus, when the Senate refused to remove Andrew Johnson and Bill Clinton during their impeachment trials, the fact that they had been impeached by the House of Representatives to start this process had only a symbolic value. They had to be convicted by the Senate after this to be actually removed from office.

Andrew Johnson

Bill Clinton

One president resigned under the threat of impeachment (and subsequent removal)

It is thus one of the ironies of presidential history that both of the impeachments of an American president in our history failed to remove their intended target, while the only president ever to be forced out of office did so only under threat of it. Besides making the point about how both houses of Congress have to be on board with this to pull off a successful removal (as with Nixon), there is one other point to be made here about the power of impeachment, which is that it doesn't have to be actually exercised to fulfill its intended purpose. The mere threat of it (when made credibly) is the only thing that has ever removed a president from office (so far, at least).

Watergate complex

Impeachment is an important check even when it's just threatened

It has often been noted that the power of impeachment is a "check" on the executive branch. But if you look at the numbers of actual impeachments of presidents (which is only two) and successful removals of presidents (which is just the one), you might get the feeling that impeachment isn't all that important in this country, since it's been so seldom invoked. Nonetheless, the fact that Congress actually has this power is still a vital check on the executive branch, I should note here, because it doesn't have to actually be used to influence a president's decisions. A president knows that if he (or she) offends enough members of Congress by breaking their laws (since they make the laws), he (or she) can be completely removed by this important power; and so they think twice and carefully before approaching the boundaries set forth by the Constitution. (This is not to say that they never overstep these boundaries, of course, but that they approach them more cautiously - and more rarely - than they would do without this power. They also do it more clandestinely, I should note here, but that's a subject for another post.)

United States Capitol, the building where the Congress meets

Impeachment gives presidents a major incentive to obey the law

The other forgotten advantage of this power is that it gives the president a major incentive to obey the law. This is not a small thing, when you consider how executives in many other countries are often above the law. A president can only be removed in this country if they're caught committing a crime. This can be irksome when certain bad presidents make themselves untouchable by following the law (or at least appearing to do so), but it can nonetheless prevent a great deal of mischief by motivating the scoundrel not to put himself above the law (or at least get caught at doing so).

Capitol Dome at night

Impeachment saves bloodshed and violence

One last thought might be helpful here: removing a powerful dictator from office requires actual or threatened violence; while removing an American president from office requires only actual or threatened impeachment - or just "waiting them out" until their term expires, if the faster methods don't work here. The very existence of this power thus saves bloodshed and violence, and is also worth having on this account.

Actual impeachments of non-presidents (including judges)

Impeachment also works against judges in this country, so some of the same reasoning can also be applied to the judicial branch - something which is especially important, when judges could otherwise serve for life most of the time. At the time I write this, the power of impeachment has been actually exercised 15 times against federal judges. Eight of those judges were actually removed by this power (including three who were also disqualified from holding future office), and three of the other judges were forced to resign because of their trials. Only four of the impeached judges were acquitted. Thus, the power of impeachment is also important against the judicial branch, even at the times when it's only threatened - just as it is with presidents.

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My review of PBS's "Nixon" movie (which discusses the events leading to his resignation)

Part of a series about
U. S. Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

← Previous page: The presidency - Next page: The courts →

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