• David C. Flatto

The Essential Ambiguity in Impeachment Procedures: A Comment

With ongoing calls to impeach New York Governor Andrew Cuomo— an event that has not happened in New York State in 107 years— following on the heels of the most recent Presidential impeachment drama in February, it is evident that reflecting upon the nature of this extraordinary procedure remains more vital than ever. Once considered an extreme constitutional measure (described as the “the most powerful weapon in the political armory, short of civil war”), impeachment has shockingly become commonplace in the last couple of years, and may now be on the verge of transforming state politics too.[*] But it is anything but an ordinary procedure—and this has led to a fundamental misunderstanding about its essence, and contributed toward its recurring failure in practice.

Casting a cloud over each impeachment procedure is a basic categorical confusion about its nature. Is this a legal procedure or a political one? This nagging, recurring ambiguity is most immediately manifest in presidential impeachments in the question of whether a “high crime or misdemeanor” must involve an underlying violation of law or not, which surfaced in the Trump Round 1 debate about the parameters of obstruction of justice, and the Trump Round 2 debate concerning the First Amendment and incitement standards, and will no doubt inform the decision about what to focus upon if the Cuomo proceedings move forward. Strains of this controversy surfaced in prior impeachment procedures involving Clinton, Nixon, and tracing all the way back to Andrew Johnson in the Nineteenth Century, and have their echo in New York annals as well.

Which reading is correct? At first blush, the record is maddeningly confusing. From early impeachment history through the present there have been voices on both sides of the spectrum among jurists, politicians and even scholars. While most experts promote a more capacious (i.e., non-legal, political) definition, there have always been contrary voices. This ambiguity has been capitalized upon by partisan advocates, and has led to a hopeless politicization of the impeachment process. So Trump’s defenders have increasingly insisted on a more narrow, exacting legalistic definition, sometimes in contrast to their stated positions in the past. In other words, the confusion has undermined the efficacy of this process.

Rather than simply being exasperated at what may seem like an unconscionable act of originalist malpractice (in Cass Sunstein’s memorable words, “the more you stare at the critical words ‘high Crimes and Misdemeanors,’ the more obscure they seem”), however, I would submit that in this case we have a constitutional ambiguity that is not the result of clumsiness, or an inability to portend future circumstances, or an unwillingness to specify rules where standards are preferable, but what I would label an essential ambiguity-- an ambiguity that grows out of the essence of what an impeachment procedure is, and is not.

A strong indication that this ambiguity has a different quality is the manner in which it pervades the overall constitutional design of impeachment. This proceeding is conducted by Congress, and depends on its vote, with the potential result of dismissing an official from office. Described in these straightforward terms, impeachment involves political actors and necessitates political evaluations. Yet this process strikingly adopts legal trappings from beginning to end (and this is why Madison labelled it a “judiciary power”): the House of Representatives’ impeachment serves as an indictment, the subsequent proceeding is labeled a trial, the Senate acts as jurists (usually overseen by the Chief Justice), they hear evidence, and reach a verdict whether to convict by way of removal (in New York, the impeachment trial is conducted by members of the senate and the highest court). In constitutional jargon, impeachment is an Article III procedure that is assigned to Article I, and applies most conspicuously to Article II. Or to put it differently, impeachment involves a proceeding which invokes, but defies, a legal taxonomy: revolving around a crime, but it is a high crime; calling for a trial, a Senatorial trial; demanding an indictment and conviction, of a political variety; and leading to a punitive ouster. These anomalies engender spiraling debates about whether such a procedure is subject to judicial oversight, evidentiary standards, and onward. But they should not obscure the deliberate and calibrated configuration of this liminal constitutional structure.

So one necessary corrective to much commentary and scholarship is that rather than adopting the construct of either/or, impeachment assumes the form of both/and. This insight leads to a second important observation about the essential phenomenology underlying this structure.

The reason for this anomalous hybrid reveals much about law and its limits. It derives from the challenge of situating impeachment within a legal framework, notwithstanding the constitution’s predilection to operate within those terms. Fundamentally committed to the rule of law, the constitution’s “organic response” to a grave democratic offense, if you will, is through a normative prism. Yet this proves to be an elusive quest, stretching legal tools and techniques to-- or even beyond-- their outer bounds.

Allow me to analogize from a different context that I have studied at some length, which surprisingly exhibits a loosely parallel dynamic. Legalistic religions like Judaism normally categorize wrongs as normative prohibitions. But at times the enormity or intensity of a sac-religious behavior or stance makes this matrix inadequate. The most egregious sins resist the standard legal taxonomies because they implicate a person’s faith or fidelities, and also can have grave social consequences too, all of which are difficult to capture within the universe of objective and concrete norms. Even as the normative habit will continue to appeal to legal terms and institutions, a cardinal sin will resist these metrics.

[To illustrate this briefly: Consider the unforgivable wrongs which result in a forfeiture of a share in the “World to Come” according to an arresting rabbinic tradition. None of the enumerated sins are conventional prohibitions from the Decalogue or other legal corpora. Yet, despite their exceptional provenance and nature, the rabbis assimilate these foundational sins into a kind of loose normative template. They enumerate (extraordinary) transgressions, appeal to a (celestial) trial, and announce a(n altogether different kind of) punishment. To borrow freely from the lexicon above, these involve high sins, rely upon a trial that is conducted by a select council, and conclude with a punishment of (a rather drastic) removal.]

Returning to impeachments, it is no coincidence that in trying to capture the thrust of “high crimes and misdemeanors” and related terms leading constitutional scholars resort to phrases such as “evil deeds,” “sins,” and a threat to “the very soul of a democracy.” The conventional legal vocabulary, which is necessary but inadequate, must be supplemented with allusive religious terminology that signals to something beyond the breach of norms. For impeachment is reserved for an ultimate betrayal of democratic principles and commitments, an assault on the fabric of a democratic society, a shattering of the social contract.

In sum, the phenomenology of impeachment is essentially ambiguous in a profound sense. Exploiting but also exhausting the language, doctrines and institutions of law, impeachment calls for an elastic application of normative standards to address the momentous rupture of an impeachable offense. Confronting this specter should never lead to a paralysis based upon the blurring of boundaries, but a heightened resolution to grapple with the gravity of the constitutional crisis, which requires all the tools in the legal arsenal and even more.

[*] The historic and contentious Netanyahu trial that is now underway in Israel is perhaps a dramatic expression of a similar development. Whether the analysis below bears relevance to the Israeli situation is less certain since Israel’s unique practice of “impeachment” by judicial review may have a dynamic of its own that needs to be unpacked.