Andrew McCarthy has an article in the latest National Review magazine entitled “Impeach Her” – the “Her” of course refers to none other than Hillary Clinton.[1] McCarthy argues: “If the government were functioning properly, Congress would impeach Hillary Clinton, not refer her misconduct to the same administration that indulged it in the first place.” While I highly respect McCarthy’s impressive track record of fighting corruption and terrorist threats, on this constitutional point, I believe he’s wrong.
Impeachment had been a part of English politics and law for centuries (at least since 1376). Under the British Constitution, Parliament could (and still can) impeach anyone for any crime, even after they had left office. Fortunately, Parliament doesn’t seem to have run amok with this unrestrained power. In fact, it appears Parliament has impeached fewer officials than has the U.S. Congress.[2]
If you read Madison’s notes of the Grand Convention and/or Hamilton’s two Federalist essays which address the subject,[3] you clearly see that impeachment in the U.S. Constitution was intended by the Framers as a way to remove someone from federal office. It follows therefore that someone no longer in federal service can’t be (or shouldn’t be) impeached. Unfortunately for that theory, Congress has indeed impeached at least one federal official who was no longer in office.
In 1876, the Secretary of War, William W. Belknap, was accused of graft and corruption. As articles of impeachment were being prepared in the House of Representatives, Belknap, knowing this, tendered his resignation to President Grant, literally hours before the House was scheduled to vote. Instead of dropping the matter, as later Congresses would do when the accused party resigned,[4] the 1876 Congress continued with their impeachment. Belknap was acquitted in his Senate trial.
I hesitate to point out that just because Congress does a thing doesn’t make it Constitutional. I hope we can all agree on that point. Just because the 1876 Congress failed to view impeachment correctly (in my opinion) and continued with a proceeding intended to discover, apparently, if now-citizen Belknap should be “removed from office,” this doesn’t make their action constitutional.
The eminent jurist, Joseph Story, seems to back me up, stating in his 1833 Commentaries on the Constitution that the impeachment power should be confined to “persons holding office.”[5] In another place Story writes: “If, then, there must be a judgement of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent [6]for an impeachable offence when the most important object, for which the remedy was given, was no longer necessary, or attainable.”[7]
But let’s recall that there are actually two penalties connected to impeachment in our Constitution: removal from office, AND “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Article 1, Section 3, Clause 7). As written, imposition of the first penalty is clearly intended to precede imposition of the second. But can an impeachment proceed for the sole purpose of imposing the second penalty? The Constitution is silent on this question, so I’ll admit it resides in a gray area. But I believe it would violate the whole tenor of impeachment to proceed on the basis of the “disqualification” penalty alone.
By the way, of nineteen Congressional impeachments of federal officials (excluding two Presidents), only two of the eight removed from office were additionally disqualified from future office-holding; Congress seems reluctant to permanently penalize someone removed from federal office.
A similar question came up recently on Quora,[8] with an important difference. The requester asked “Could Hillary Clinton’s mismanagement of highly classified information be grounds for Day One impeachment proceedings against her?” While it might be improper and unconstitutional to impeach Hillary now, as a private citizen, could she be impeached once she is re-established in federal service, even as President?
In other words, are the actions sparking the impeachment linked in some way to the office the individual held or are they attached to the individual herself (in this case)?
Most of the respondents on Quora said “No,” she couldn’t (or shouldn’t) be impeached. But they based their opinion on the fact that Hillary was not indicted by the Justice Department (acting on the recommendation of the FBI). No one approached the question from a Constitutional perspective.
Constitutional impeachment is appropriate when “High Crimes and Misdemeanors” have been committed. “Crimes” are the violation of statute law and “misdemeanors” are maladministration or misconduct falling short of criminal activity. Either, committed by a “high” official, constitutes grounds for impeachment. The FBI decided only that Hillary was not guilty of criminal wrongdoing because she did not display criminal intent (mens rea). They did not address (because it wasn’t their responsibility) whether Hillary was guilty of committing a “high misdemeanor” in the context of impeachment.
If Hillary Clinton was still performing as Secretary of State, it is clear she could and, I think, should be impeached, despite the FBI’s findings. As long as she remains out of federal service I think she remains unimpeachable.
But what happens when Hillary resumes federal service in a capacity other than Secretary of State? Does she then become impeachable? Clearly she becomes impeachable, but on what charges? Would her misconduct, her gross negligence in handling classified information of several years prior still be impeachable? Obviously there is no statute of limitations on “High Crimes and Misdemeanors.”
Given the sparse words of the Constitution and a compliant Court, Congress now has the power to do most anything it wants, and I’m sure the Supreme Court would find the impeachment of a President Hillary Clinton, for her failures as Secretary of State Hillary Clinton, to be non-justicable. So in the end, the judgment of propriety would fall on the owners of the Constitution: the people. For a Republican-dominated Congress to proceed this way would be political suicide.
It is indeed unfortunate that Hillary Clinton’s recklessness with the handling of classified information, information she knew to be classified, even to the Special Access Program level, information almost certainly now in the hands of foreign governments and/or independent hackers, did not come to light until after she had left office. Had the sequence been different I think it likely she would have, and should have been impeached and at least removed from office, if not disqualified from further office for that egregious breach of trust. But I think the impeachment ship has sailed.
If you want to “impeach” Hillary, you’ll have to do so at the ballot box. And that means you’ll have to show up; there is no sitting this one out.
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[1] Note: I can’t seem to locate the article on National Review Online, but a slightly modified version is found here: http://www.ruthfullyyours.com/2016/07/30/impeach-her-why-the-e-mail-scandal-should-bar-hillary-from-high-office-by-andrew-c-mccarthy/
[2] https://en.wikipedia.org/wiki/Impeachment#United_Kingdom
[3] Federalist #65 and #66.
[4] In 1926, Congress stopped impeachment proceedings when federal Judge George English resigned. In 1974, the Senate terminated impeachment of President Richard Nixon when he resigned the office, and in 2009, Congress once again terminated proceedings when federal Judge Samuel Kent resigned.
[5] Joseph Story, Commentaries on the U.S. Constitution, 1833, §788.
[6] “One who fails to perform his duty, particularly a public officer who neglects his duty; an offender; one who commits a fault or crime.” Webster’s 1828 Dictionary
[7] Joseph Story, Commentaries on the U.S. Constitution, 1833, §801
[8] https://www.quora.com/Could-Hillary-Clintons-mismanagement-of-highly-classified-information-be-grounds-for-Day-One-impeachment-proceedings-against-her