A Timely Impeachment Primer
Review of The Impeachment Power: the Law, Politics, and Purpose of an Extraordinary Constitutional Tool by Keith E. Whittington (Princeton University Press, 2024) in Law & Liberty.
November’s midterm elections could reshape the last two years of Donald Trump’s presidency. Control of Congress is at stake. If the president’s party loses seats—as is typical—then assuredly his agenda would be derailed. It would also likely lead to his impeachment, along with the impeachment of other controversial officials in his administration.
Impeachment has become more common in American politics in recent years. Democrats impeached Donald Trump twice in his first term. The Senate failed to convict him both times. Yet the power remains poorly understood despite its rising prominence in political discourse.
Keith E. Whittington’s new book aims to fix that. In The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Tool, the Yale law professor offers “an explanation of the scope and purpose of the impeachment provisions of the US Constitution.” His goal is to illuminate the impeachment power, “not from the perspective of how it might help or hurt a particular government official but from the perspective of how we have thought and should think about it over the long run.”
Whittington’s premise is that understanding the impeachment power is necessary for knowing when to use it and what it can realistically accomplish. The publication of The Impeachment Power is well-timed. Calls to impeach President Trump and high-ranking officials in his administration have become routine in Democratic rhetoric, even as Republicans dismiss them as unserious partisan point-scoring. Whatever the merits of that ongoing debate, Whittington believes impeachments matter more broadly because they force the American people and their elected representatives in Congress to revisit the foundational principles that ought to guide government officials in the performance of their duties. According to Whittington, impeachments are also important moments in our politics because of their potential to usher in periods of constitutional restoration or lead to constitutional change.
Whittington analyzes the impeachment power through two lenses. He treats it as a “legal instrument” defined by text and tradition. And he treats it as a “political tool.” His core claim is that impeachment is a constitutional, rather than purely legal, power, and evaluating its proper use is too important an undertaking to be left to lawyers. The Framers of the Constitution created it to enable members of Congress to check abuses of power by government officials. Their design aimed to solve political problems and, in so doing, anchor Congress at the center of American self-government.
If impeachment is primarily a political tool, knowing when and how to use it requires prudential judgment on the part of lawmakers, not legal knowledge per se. Prudential judgment is also necessary because while the impeachment power is intended to defend the Republic against officials who abuse their power, recognizing when its use is appropriate is rarely straightforward.
Whittington’s analysis of the impeachment power is based on four general sources: Americans’ colonial inheritance; the Constitution’s text; its structure; and congressional practice. He first considers how impeachment worked in Great Britain before the American Revolution. At the time, Parliament wielded impeachment against the Crown as a tool to control how it made public policy and implemented it. By the time of American independence, however, Whittington notes that Parliament had developed alternative ways to achieve its goals vis-à-vis the Crown, and that impeachment faded in British politics as a result.
The Framers of the Constitution nevertheless inherited the British form of impeachment—a tool to be wielded by the legislature against the executive—and modified its purpose to fit America’s unique context. For example, the British practice was open-ended; Parliament could impeach anyone, and the penalties ranged from fines to imprisonment and execution. By contrast, the US Constitution limits impeachment to the president, vice president, and government officers. Furthermore, it restricts the penalties to removal from office and potential disqualification from holding future office. The Constitution gives the House sole discretion over when to impeach these individuals, and it gives the Senate the sole discretion to try all impeachments and to determine if disqualification from holding future office is warranted. Consequently, the Senate acts as judge and jury in impeachment trials. The required two-thirds threshold for conviction makes acquittal likely in most instances. And its decision can’t be appealed.
Yet the Constitution’s text says less about impeachment than readers might expect. It establishes the overall framework and defines the process in general terms. But it says little beyond this, particularly about its purpose. Whittington fills in the Constitution’s gaps regarding impeachment by considering the power and its use in the context of the Constitution’s overall structure, and by applying lessons learned from congressional practice over time.
The House indicts by majority vote, and Whittington concedes that, in a partisan chamber, impeachment will sometimes be partisan. Bicameralism mitigates the risk, however. If the House wants its impeachment effort to result in a Senate conviction, it must anticipate how senators will react. And lawmakers in the House and Senate must anticipate how their constituents will react to their role in an impeachment in the next election.
Whittington reads into the Constitution’s structure to elucidate impeachment’s specific purpose. Unlike elections, which empower voters between cycles, impeachment empowers their elected representatives to hold government officials accountable for their actions in between elections. It therefore serves as a check on executive and judicial abuse and helps to prevent conduct that cannot wait for the next election from threatening the Republic.
Whittington also relies on the Constitution’s structure and congressional practice to determine the conduct that constitutes an impeachable offense. Some take a strict approach to the question. What he calls the “ordinary crimes” answer reads the impeachment power so narrowly that the House can only impeach for statutory offenses, and the Senate is similarly limited in its ability to convict. Even so, Whittington acknowledges a broad loophole in this answer, as it allows Congress to legislate new offenses at will.
Other approaches construe the impeachment power more broadly. The “political crimes” answer, for example, rejects any pre-fixed standard; whatever discipline exists must come from voters afterward. What he terms the “inkblot” answer reads “high crimes and misdemeanors” so broadly that it imposes no limit at all. The final answer Whittington considers—”break glass in case of emergency”—is contextual. It varies by case. But in all cases, dereliction of duty justifies impeachment and removal from office. None of these, Whittington concludes, supplies a clean rule. Consequently, what constitutes an impeachable offense requires prudential judgment on the part of lawmakers, not legal knowledge.
Whittington goes on to elaborate on this point by attempting to determine when abuse of power justifies impeachment. Impeachment, he writes, “is a potential remedy for constitutional misconduct,” and “determining when impeachment is appropriate requires thinking comparatively about the nature and seriousness of constitutional problems.” He argues that lawmakers should also weigh alternatives to impeachment—elections, the power of the purse, the confirmation process—though Congress has largely abandoned those tools in recent decades.
Whittington’s book is a useful introduction to the impeachment power at a moment when impeachment rhetoric is on the rise. It should be required reading for anyone interested in weighing the merits of future impeachment efforts.
The Impeachment Power also excels in ways that have less to do with impeachment and more to do with how the Constitution works. Whittington’s reading of the Constitution’s ambiguity on impeachment’s purpose—and his reluctance to clarify it with a legal standard—points to a deeper insight about American self-government. The Constitution creates a permanent space for politics. That is, it establishes institutional venues where the American people and their elected representatives make collective decisions, implement them, and verify that they are implemented correctly.
The purpose of impeachment cannot be defined by law. It arises instead from the impeachment process. That inner logic runs throughout the Constitution. No predefined end can dictate the appropriateness of the means. To assume otherwise would be to place someone, or some group, outside and above the system to direct its operation. The Constitution emphasizes process and ensures that it can unfold broadly. Whatever outcome that results from that process is, by definition, constitutional. The system is self-constraining and self-correcting. Whittington concedes as much when he observes that the House must anticipate how the Senate will react to its decision to impeach, and lawmakers in both chambers must anticipate how the voters will react to the role they played in the impeachment. The Constitution creates a framework. It does not direct the activity of self-government. It merely safeguards the space in which that activity occurs by preventing any branch of the federal government from encroaching on it through a system of interrelated checks, such as the impeachment power.
Whittington also inadvertently raises a deeper question about constitutional hardball. Can the impeachment power—or, more generally, the Constitution itself—be used to undermine the Constitution? Are there illegitimate uses of constitutional powers that are not spelled out in the Constitution? Whittington seems to conclude that there are not, or that if there are, they can only be judged by the people at the end of the process. He need not concede so much. Bicameralism, the Senate’s two-thirds threshold, the House’s interest in conviction, and the voters all police lawmakers’ use of the impeachment power. Of course, like every constitutional power, the impeachment power can be misused. But Whittington works too hard to define principles in advance that would let observers identify misuse before the fact. The ultimate check on Congress is the process and the people. Ambition counteracting ambition is the only safeguard the Constitution provides. And it’s the only maintenance safeguard it requires. That is the Constitution’s genius, and why it has persisted for so long.
Finally, The Impeachment Power spends too much time arguing against legal interpretations of a power Whittington has already conceded is political in nature. The key to understanding impeachment is structural, not legal. His argument would gain by making that point central rather than dispatching each legal account in turn. The Constitution’s structure—bicameralism, staggered terms, the two-thirds threshold, the separation of impeachment from criminal punishment—is doing the work that Whittington keeps trying to assign to a doctrine. The space recovered from his legal detours would let him expand on his strongest observation: that the appropriateness of impeachment emerges out of the struggle to impeach, not from a rule fixed beforehand. The members of the House debating articles of impeachment, the senators weighing conviction, and the voters watching it all unfold are not waiting on a definition that illuminates impeachment’s true purpose. They define it by studying the act itself as it unfolds in real time, on a case-by-case basis.
Calls to impeach are more frequent today. But are they serious? If they were, familiarity with the power should be growing too. The bigger picture is that, while impeachment rhetoric is on the rise, actual impeachments remain rare, notwithstanding Trump’s two impeachments during his first term. Significantly, the reason why that is the case today appears different from the reason why impeachment was rarely used in the past. In previous periods, Congress acknowledged the other tools at its disposal and often used them. They reached for the power of the purse. They held nominations in the Senate. They legislated to constrain executive discretion, especially in the 1970s.
Today, Congress has lost interest in nearly all those tools. The decline is not specific to impeachment. There is a general decline in the institution’s appetite to check the executive and the federal courts. Impeachment suffers from the same trends driving the broader erosion of congressional power vis-à-vis the other branches, and the result is rhetoric that outpaces use. Whittington’s book does not quite say so. But it equips readers to see it. Anyone interested in making sense of the impeachment circus on Capitol Hill should pick it up.