Is There a Non-Legal
Basis for Presidential Impeachment?
The
U.S. Constitution is by no means such a limiting document as described by legal
and constitutional scholars when it comes to administering and seeking justice,
ensuring the rights of the people, guaranteeing a republican form of
government, and penalizing and holding members of government and the President
accountable and responsible for their behaviors and their duty to the nation
and its people.
One
of the legal and constitutional legal debate that has been ongoing ever since
Donald J. Trump was sworn in as the 45th President of the United States,
is that of impeachment of the President. Most of the debate and arguments seem
to surround the legal and Constitutional basis of impeachment. This makes it
rather difficult to hold presidents accountable for their actions and behaviors
that harm and jeopardize the nation and the republican form of government
described under the Guarantee Clause (Article IV, Section 4), since if
sufficient legal basis is lacking, impeachment does not become a potential to
limit, extinguish, or eliminate bad executive actions and behaviors that are
characterized by legal vagueness because the Constitution did not explicitly
identify, list, and characterize such behaviors as standards or causes for
impeachment or removal of government executives and officers, and particularly,
the Chief Executive or President of the United States. Legalists – particularly
those who are legal professionals or trained as such by earning an LL.B. in
former years, or the equivalent J.D. in today’s law schools, seem to have been
instrumental in putting forward the notion of specific legal requirements as
basis for impeachment of the President only within the framework of legal
language evident in Article II. Furthermore, the U.S. Constitution specifically
spells out the standards for impeachment in Article II, Section 4, giving them
the iron-hammer logical from which most argue: 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 (U.S. Constitution,
Article II, Section 4). This (Article II, Section 4) might seem rather limiting
at first glance; however, it does state, “other high Crimes” and this,
regardless of what current laws are, is subject to time, actions, and
interpretation, and most importantly, the current and emerging needs of the
nation and people. While we might peruse the list of felonious and federal
crimes, we might still not agree on a sufficient legal basis for presidential
impeachment given presidential power and immunity – another area limited to
Constitutional legalese and textual interpretation.
It
was in 1982 that the Court recognized Presidential immunity from civil
liability for official acts committed as President. However, there are limits
to Presidential Immunity, and non-personal matters determine such limitations.
While a sitting President might have certain immunity to civil liability on
official duties, when it comes to unofficial conduct, that might not be the
case. This however begs the question: When is the President not the President
of the United States? As such, can we really separate personal from
non-personal matters while a person is President of the United States? In the
capacity of President of the United States for the entire four years or a
single term or two terms (8 years), the President should best not be seen as
ever acting on a personal level, and thus, all matters related to the
President’s actions and decisions must be treated as official! This will
certainly eliminate the legal and constitutional ambiguities that evolve and
create confusion and present loopholes for presidents to act in compulsive ways
and even abuse their presidential power to achieve personal gains whether
within the intimate settings of home and family or in the public.
Limiting
impeachment requirements to the standards alone established in Article II,
Section 4 of the Constitution is limiting the Constitution and the law,
broadening Presidential and executive powers, and providing opportunities for
abuse of power and authority by presidents. The Framers of the Constitution
could not have possibly written down every single intended word and
proscriptions, and hence, looking at the concerns and overall documents,
recognizing the values of the men whom drafted the Constitution, there must be
both moral and ethical bases for impeaching the President or any government
executive in the United States. By moral and ethical bases, this writer is
referring to non-legal requirements as explicitly defined and communicated
under Article II, Section 4 of the Constitution and the entirety of laws
administered across the United States. The moral and ethical conduct of the
person occupying the position of President of the United States was more of a
concern for the Framers of the Constitution than the legal challenges. This is
evident in their actions in appointing a man of unquestionable ethical and
moral character and convictions as the first Constitutional President of the
United States. The Framers envisioned a morally and ethically upright person
whose conduct would be an example for the people and the nation, and this is
why the first President after the ratification of the U.S. Constitution,
President George Washington, was seen as the ideal candidate to serve as model
for future presidents of the United States. Thus, the personal and
institutional presidencies both have adequate basis for impeachment - both
having requirements in law and morality and ethics. Unfortunately, we have
often reached far beyond the latter when we seek to evaluate presidential or
executive conduct, making impeachment a legal battle for the Senate. So far,
only two presidents have been subjected to impeachment process – Andrew Jackson
and William Jefferson Clinton (Bill). Given the responsibilities and duties of
the President of the United States and the expectations of the Framers, the
importance of moral and ethical leadership, and the needs of the republic and
democracy, there is never any need to search for a legal basis to impeach a
President of the United States or any government executive – personal conduct
and behavior are sufficient basis based on moral and ethical expectations in
relation to their constitutional duties, responsibilities, and actions.
It
is neither far-reaching nor illogical, but only difficult to imagine the
non-legal basis for impeaching and removing the President as being fully within
the Constitution and constitutional because as a society and nation, we have
drifted and deteriorated morally and ethically on individual and collective
levels. Our standards of right and wrong, and our values have become so warped
and we now are bound by spurious relativism and conscienceless moral and ethical
tolerance that vices have become pervasive and valued across all contexts and
institutions including what the Framers would have regarded as the “sacred and
office” of the President of the United States. Many lawyers and legal scholars
will certainly disagree with the viewpoints communicated herein, but a true
interpretation and understanding of the U.S. Constitution implies and supports
a moral and ethical basis for impeachment rather than just a legal one or legal
standards generally interpreted in line with Article II, Section 4 of the
Constitution. There is a non-legal basis for presidential impeachment and this
basis is the behaviors and personal moral and ethical conduct of the President
of the United States.
Image source: Palm Beach Post
(2018)
About
the Author
Dr. Donovan A. McFarlane
teaches in the fields of Political Science and Public Administration to include
courses on American Government, The Presidency, and Public Policy. He has extensively
taught in the fields of Business and Management at the undergraduate and
graduate levels. Some of the major courses he has facilitated include International
Business, Organizational Behavior, Marketing, Strategic Management, among other
courses. He currently writes articles in several areas for his Blog, Forum of Business, Organizations, and
Society (FOBOS): http://businessorganizationssociety.blogspot.com/
