For the first time in the Trump presidency, the ultimate check of political accountability in our constitutional order — impeachment — is seriously in play. Till now, impeachment demands were largely the province of the activist wing of the Democratic Party. But the president’s summertime telephone conversation with Ukrainian President Volodymyr Zelensky — as revealed by a still-unidentified whistleblower — has triggered a strong move toward invoking the Constitution’s most punishing political sanction. Although talk is forever cheap in the nation’s capital, the edging toward impeachment by moderate House Democrats — now sealed by House Speaker Nancy Pelosi’s Tuesday announcement of a formal impeachment inquiry into President Trump — marks a sea change on this most divisive of subjects.
To be sure, the House Judiciary Committee voted earlier this month — on a strictly 24-17 party-line vote — to authorize an impeachment “inquiry” or “investigation.” But this action was entirely symbolic, as the Judiciary Committee merely codified a process it already had underway since administration issuance of the Mueller Report back in the spring. Now Speaker Pelosi confronts a fundamental question in our representative democracy: Will the full House of Representatives actually pursue formal impeachment as occurred with Presidents Nixon and Clinton?
History strongly teaches that the speaker should stay her hand. America’s constitutional experiment with impeachment is now 230 years old. From its ratification in 1788, and the formation of the first government in 1789, the grand “inquest,” as Alexander Hamilton described impeachment in Federalist 65, has been initiated on no fewer than 62 separate occasions. That’s an average of one impeachment every four years (or, to be precise, every 3.7 years). That’s pretty frequent.
And yet. Of those 62 initiated proceedings, only 19 individuals have actually been impeached. That’s a paltry 31 percent of those who were the subject of a formal impeachment effort in the House.
Then, of those 19, only eight impeachments resulted in actual conviction by the Senate and removal from office. A survey of those 19 proceedings reveals that two have been of presidents — Andrew Johnson after the Civil War and, of course, Bill Clinton during the waning years of the 20th century. Neither was successful. I leave aside Richard Nixon, who resigned in August 1974 as impeachment proceedings were underway in the House Judiciary Committee.
One impeachment was brought against a U.S. senator, and signer of the Constitution, William Blount, but his expulsion from the Senate by “sequester” ended that proceeding. Of the nation’s myriad Cabinet members to serve over these two centuries plus, only one was impeached. Even then, hapless Secretary of War William Belknap successfully mounted a defense in the Senate in May 1876.
Over time, the Senate has proven to be a highly reluctant “jury.” Acquittal has been the order of the day, unsurprisingly so in light of the Constitution’s requirement of a two-thirds super-majority for conviction and removal from office.
This history reveals something very important about impeachment. Of the eight successful impeachment convictions, every one was of a federal judge. No executive branch officer has actually been removed. Not one. Our long national experience suggests that impeachment is simply not a useful tool when it comes to executive branch officials, including the president. Equally important, and reassuringly, other checks and balances are in place, including an energetic, scandal-seeking press that coupled with congressional oversight not infrequently forces resignations of controversial Article II officers.
British experience buttresses the point. In the United Kingdom, from which we inherited the impeachment device in the first instance, the last recorded impeachment took place in 1806. A recent study for the House of Commons concluded that impeachment as a tool of accountability is now obsolete. True, impeachment was briefly discussed in the House of Commons in 2004 when a group of Tory MPs, including Boris Johnson, moved to impeach then-Prime Minister Tony Blair for allegedly misleading Parliament in the days leading to the Iraq War. But the Tory insurgents’ motion was quickly tabled and never revisited. The British view: Long ago, in an era when very limited parliamentary oversight existed over executive power, impeachment was a helpful tool to ensure honest and faithful government. No longer is this so.
So what, if any, is the appropriate function of this time-honored mechanism of governmental accountability? History again provides the answer. In our country, federal judges are, by design, different than officials of the two political branches. Judges enjoy life tenure — that is, continued service — during what the Constitution calls “good behavior.” As Alexander Hamilton emphasized in Federalist 78, federal judges are to serve without accountability either to the political branches or directly to the people by election. Impeachment is thus the only mechanism in our constitutional order for ensuring judicial accountability.
For executive branch officials, however, a different approach is readily at hand, a potential check-and-balance short of the inherently divisive — and almost inevitably unsuccessful — method inherited from the mother country. For this lesson, we return in time to the administration of Andrew Jackson, a president much admired by Mr. Trump. Old Hickory, a fierce opponent of what he perceived to be the elitist Second Bank of the United States, vetoed Whig-sponsored legislation that sought to bolster the Bank’s powers. But Jackson went further, removing deposits from the controversial Bank. In response, Speaker of the House Henry Clay investigated the president’s course of conduct, issuing legislative demands for White House documents, but Jackson steadfastly refused to cooperate. A furious Speaker Clay then pushed through the reluctant House a strongly worded resolution of censure against the popular president.
In the current tumult, Speaker Pelosi would do well to look to our nation’s rich history for guidance. Absent Republican support, impeachment of President Trump is doomed to fail, deepening divisions already tearing our country apart. Her predecessor from long ago, Henry Clay, found a sensible middle course — the People’s House spoke its mind in a resolution of censure, but in doing so did not embark on a mission nigh unto impossible — to seek to overturn the results of an honest and fair presidential election.