Private: Impeachment Lessons From 1868

With the Senate facing three potential impeachments of federal judges, the explosive 1868 impeachment trial of President Andrew Johnson offers important lessons. Based on the Johnson case, the impeachment picture for Samuel Kent of Texas was bleak, and sure enough he resigned last week from prison. For Thomas Porteous of Louisiana, the Johnson precedent offers a mixed prospect, while appellate judge Jay Bybee of Nevada should not face impeachment.

Impeachments always begin with the enduring puzzle over "high crimes and misdemeanors," the constitutional standard for removing high executive and judicial officials. But disputes over that term, which derives from fourteenth-century England, have recurred for two centuries of American impeachments.

Must an impeachable offense be a crime, or can judges and presidents be removed for less-than-criminal abuses that showed them unfit? On the other hand, are some crimes so unrelated to official performance that they do not warrant impeachment? These questions vexed the Fortieth Congress as it ached to oust Andrew Johnson from the White House.

Enraged by his thwarting of Reconstruction legislation, some moved to impeach Johnson for, essentially, doing a terrible job. The impeachers relied on statements by Alexander Hamilton and James Madison that no crime need be present to establish "high crimes and misdemeanors." Yet the House, perplexed over how to prosecute a general accusation of executive obstruction, refused to impeach. Not until almost three months later, when events allowed the House to charge the president with a criminal violation, did the impeachment begin.

This sequence boded ill or Judge Kent of Texas, who pled guilty to lying in an investigation of sexual harassment of court employees. In disturbing testimony, two women told a House committee of the judge's "reign of terror" over female workers. And his conduct involved plain abuse of his office, meeting the demand of those, following Hamilton and Madison, who think impeachment should follow an "abuse of . . . authority."

After beginning his 33-month sentence, and with the Senate beginning to organize trial proceedings, the Texan finally resigned.

Judge Porteous of New Orleans can be more hopeful. Chronically short of funds, he is accused of filing fraudulent papers in his own bankruptcy and forcing payments from lawyers when he was a state court judge. Yet after a long investigation, a grand jury brought no criminal charges.

Congress has impeached judges for non-criminal conduct, including mistreating litigants and lawyers. One was removed in 1804 because he was either demented or an alcoholic. Nevertheless, without criminal charges, Porteous' prospects are better.

The allegations against him also raise the question whether he can be removed for conduct before assuming office. Shortly after Johnson's trial, Congress declined to impeach Vice President Schuyler Colfax for accepting a bribe as Speaker of the House. To avoid this precedent, a Porteous impeachment might have to stress misconduct during his fifteen years as a federal judge.

Bybee, a Justice Department official until his judicial appointment in 2004, presents the most politically-charged case. Angry voices on the left - spurred by the New York Times - demand his removal because he signed the infamous "torture memorandum" of August 1, 2002, which approved "harsh interrogation techniques," including waterboarding. The memo, the Times insisted, shows Bybee "unfit for a job that requires legal judgment and a respect for the Constitution."

Again, the 1868 case offers guidance. To gut Reconstruction legislation, Johnson induced his Attorney General to produce feebly-reasoned opinions that undermined the law. Immediately, calls for Johnson's removal rang through the Capitol, but none was directed at his lawyer.

Bybee's torture memo was legally porous and morally contemptible, but "high crimes and misdemeanors" is not the same as bad judgment in a time of crisis. Those demanding impeachment are angry with former President George W. Bush, not with the Nevada judge. Impeaching Bybee on the current record would reflect a shoot-the-messenger mentality unprecedented in our history.

Impeachment gives Congress ultimate power over presidents and judges, but that power must be exercised with restraint. Impeaching Bybee for pre-judicial conduct that supposedly shows him "unfit" would weaken the constitutional standard. That the constitutional standard is murky and difficult to apply is no reason to shred it, leaving impeachment too easy and even more political.

Executive Power, Separation of Powers and Federalism