The antics of the Trump administration have raised the profile of many unusual and little-discussed features of the Constitution. Let me add another one to the list.
Article II, Section 4 of 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.” As a practical matter, the impeachment power has primarily been exercised on two types of federal civil officers: presidents and judges. Over the course of its history, the U.S. House of Representatives has passed articles of impeachment in 19 cases. Seventeen of those cases involved a president or a federal judge.
There is a reason for that focus on judges and presidents, but the reason is not that the House lacks the power to impeach other individuals who hold civil office under the authority of the United States. Rather, it’s that presidents and judges have a tendency to stick to their guns and try to ride out scandals. Presidents are elected to high office by the people. Judges hold life tenure and are generally accountable to no one but themselves. If they commit egregious offenses, impeachment might be the necessary means for removing them from power.
By comparison, other civil officers are accountable by lesser, more readily accessible means than the impeachment power. The very first impeachment involved U.S. Sen. William Blount of Tennessee, who was charged with aiding Great Britain with a plan to seize Spanish territories on American borders. The Senate preferred to use its power to expel a member of its chamber rather than address such matters through impeachment and trial, and that precedent has stuck.
Executive-branch officers who have proven to be a problem have generally been removable by the president, avoiding the need for the impeachment power. Executive officers mired in scandal have customarily had the good grace to resign from office rather than forcing the president’s hand. In 1876, President Ulysses Grant’s secretary of war, William Belknap, tendered his resignation when it became apparent that the House would impeach him for corruption. However, with corruption rampant in the Grant administration, the House decided to make an example of Belknap and voted to impeach him anyway. Uncertainty over whether the Senate still had jurisdiction over a private citizen helped secure his acquittal in a close vote.
Since the Belknap episode, the House has not given serious consideration to the prospect of impeaching an executive officer other than the president. Congress has sometimes found itself at odds with executive officers, but if presidents have been willing to back the beleaguered members of their administrations, then congressional options have been limited. President Ronald Reagan’s controversial EPA Director Anne Gorsuch Burford resigned only after being held in contempt of Congress. U.S. Treasurer Catalina Vasquez Villalpando was placed on paid leave while under criminal investigation. The House voted to hold Obama administration Attorney General Eric Holder in contempt of Congress for his refusal to provide documents relating to a House investigation of Justice Department activities, but Holder proved implacable. None was impeached.
The Trump administration might tempt the House to revive its impeachment power. President Trump is an extraordinarily weak president with few durable political connections to members of Congress. His administration is wracked by near-constant scandal. Although the president has not shown much loyalty to his supporters when they no longer seem useful to him, there might be an exception: members of his own family. It is among the unusual features of the Trump administration that the president has incorporated his family into the workings of the White House. It is possible that we might soon see the president’s son-in-law under criminal indictment yet continuing to serve as a senior adviser to the president of the United States.
Under such circumstances, the House might be willing to reinvigorate its impeachment power. In the Philadelphia Convention of 1787, Edmund Randolph raised the prospect that the “President may himself be guilty” of treason and the “Traytors [sic] may be his own instruments.” With that in mind, he proposed that the president should not be allowed to pardon in cases of treason. James Wilson’s response carried the day, “If [the president] be himself a party to the guilt he can be impeached and prosecuted.” The president might choose to shelter “his own instruments,” but the impeachment power was the ultimate check that could reach even conspiracies high within the executive branch. Wilson, of course, was focused on the possibility of removing the president, but securing the republic from “his own instruments” might require removing them from offices of responsibility as well.
Unlike Holder or Burford, Jared Kushner works in the White House itself as a senior adviser to the president. The House has not tested its impeachment power against such a presidential aide. There is at least a credible argument that a senior adviser to the president is not a “civil officer of the United States” subject to the impeachment power. But it would seem reasonable that Congress could reach such advisers if needed. The founding generation seemed to generally understand the concept of a “civil officer” quite broadly, and early commentators such as Justice Joseph Story thought the impeachment power extended to anyone holding a civilian post in the federal government. The idea that government officials must be accountable, and that those exercising public power and responsibility can be checked, is central to the constitutional design. Allowing those closest to the president to retain their positions of trust despite having committed high crimes and misdemeanors would be a strange anomaly within the constitutional system.
One would hope that it would not be necessary to impeach an executive-branch official. Presidents have the power and the duty to remove wayward officers, and presidents are themselves accountable to Congress if they neglect to meet their constitutional responsibilities. But Congress has its own constitutional power to bring executive officials into line. The Trump administration might spur Congress to take back more authority from an executive branch that it does not trust to exercise power responsibly. Reviving the authority to impeach executive officers below the president might well be part of a congressional project of shifting the constitutional balance of power back toward the legislative branch.