Between law and politics

At no other time is the line between law and politics more blurred than when Congress holds impeachment proceedings. Charges called “articles of impeachment” are filed. Congressmen don the role of prosecutors, and senators constitute themselves as a jury. They conduct a trial where evidence is presented and evaluated, and witnesses are summoned and questioned. At the end of the process, a judgment of guilt or innocence is handed down. Such events normally belong to the legal system. So, why is a political body like Congress turned into a courtroom?

The simple answer is that this is what the Constitution mandates. The power to impeach is given to the elected representatives of the people as part of the balancing of the powers of the different branches of government. In England, where the practice originated, the charges that were brought against impeachable officials varied widely. According to the constitutional scholar Justice Joseph Story, “Lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading the sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws and introduce arbitrary power.”

Although it takes on the trappings of a courtroom trial, impeachment remains a distinctly political process. Acts that may be the subject of impeachment are not always punishable as criminal offenses. US President Andrew Johnson was impeached (unsuccessfully) over policy differences with Congress. In contrast, federal judge Harry Claiborne was first convicted by a criminal court for tax evasion, and was already in jail, before he was removed by impeachment for bringing disrepute to the judiciary.

Unlike passive jurors in a courtroom, senator-judges can ask questions during an impeachment trial. By a majority vote, they can overturn a ruling of the presiding officer. They are not required to insulate themselves from public opinion. In the United States, from which many of our procedures are borrowed, they are not even barred from publicly discussing the case. Most important, unlike in a court of law, senator-judges are not required to determine guilt “beyond reasonable doubt.”

But, to say that impeachment is a political process does not at all mean that it may be conducted without regard for generally accepted rules of evidence. The entire process must manifest fairness for it to be seen as legitimate. What this means is that the senator-judges must be able to offer not just an adequate justification for their final decision but also a credible account of the conduct of the whole trial itself.

The framers of the US Constitution were fully aware of the risks entailed when politicians play the role of judges. Alexander Hamilton wrote: “There will always be the greatest danger that the decision [to impeach] will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt.” (Cited in Lindorff and Olshanksky, The case for impeachment, 2006) This fear was confirmed during the impeachment of President Bill Clinton in 1998-1999 for perjury and obstruction of justice arising from the Lewinsky sex scandal. All 45 Republican senators voted to convict him, but not one Democrat joined them. In a divided US Senate consisting of 100 members, those numbers were not enough to strip Clinton of the presidency.

The requirement of a two-thirds super-majority to convict is not easy to meet. It is probably the most important safeguard against the danger of impeachment being used for narrow partisan ends. Of course, the trial itself could be so bruising that, for some officials facing impeachment, resignation might be the better part of valor. This is how Richard Nixon saw it when he gave up the presidency in 1974 in the wake of damaging revelations concerning the Watergate scandal. His resignation came before the House judiciary committee could submit its report.

Whether impeached Chief Justice Renato Corona will step down from the high court even before the trial begins, or will opt to go through the rigors of a trial, is the question everyone is asking. The prosecution is angling for a resignation, as one may glean from the way it is publicizing its evidence ahead of the trial. Corona, on the other hand, has said he is ready to face his accusers and prove his innocence. But behind all this posturing is the reality that in the end the matter will be settled by a simple headcount. The prosecution needs the support of at least 16 senator-judges to secure a conviction.  That means even if only a minority of eight chooses to acquit him, Corona will remain chief justice. There is no higher body to which the decision can be appealed. That is the law.

Politics and law interweave with one another in the most unpredictable ways, even as they remain separate and autonomous systems. Politics provides the means by which society makes collectively-binding decisions. And one such decision is the removal of top officials who have betrayed the public trust. On the other hand, the purpose of law is to stabilize people’s expectations of what is permissible and what is not. Though political in nature, the power to impeach is regulated by law.

Does this mean that the courts may intervene when there are disagreements on the meaning of impeachment rules and procedures? The urge to do so is always there. But the unspoken rule is that they must not, in deference to the separation of powers.

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