Impeachment In The Constitutional Order By Jeffrey Tlais

In American Politics, impeachment is a legislature power to charge a public official for misconduct and remove such person from office if found guilty. The Constitution gives the House of Representatives the sole power of impeaching, and makes Senate the sole court to try all impeachments. So far, no American Presidents have been removed from office as a result of impeachment. The impeachment process, according to Alexander Hamilton in the Federalists Papers, is regarded as an important tool in separation of powers to keep the executive branch in check. However, the process has been widely understood as a legal procedure, similar to a criminal prosecution. In Jeffrey Tulis’ “Impeachment in the Constitutional Order”, he argues that it is necessary

Before the impeachment, there had been tension between President Andrew Johnson and republicans in Congress over the implementation of the Reconstruction Act. In 1868, the House of Representatives voted to impeach Johnson for his “high crimes and misdemeanors”. Explicitly, the House claimed that President Johnson had violated the Tenure of Office Act by replacing the Secretary of War Edwin Stanton with Ulysses Grant. In the Senate trial, Johnson escaped conviction by just one vote. Tulis argues that Congress had difficulty finding a strictly legal violation, although Johnson’s misconduct has violated his presidential duty multiple times by abusing his power and ignoring the legislature. Johnson’s offenses, according to Tulis, include refusing to enforce passed laws, abusing pardon power, refraining from appropriating Congressional budget, and verbally attacking his opponents in Congress. He argues, “Andrew Johnson’s political actions were impeachable not because some clause explicitly listed them as offenses, but because they threatened the very functioning of a separation of powers Constitution” (Tulis, “Impeachment in the Constitutional Order”). Although it was questionable whether Johnson was guilty of “high crimes and misdemeanors” or not, it was clear that his executive actions overstepped his constitutional power and breached the equilibrium of check

For example, the House Investigation functions similar to prosecution and the Senate resembles to a jury. However, these parallels signal that the impeachment process and criminal trials are only similar in certain aspects. He writes, “to say that the process of removal of a president is like a criminal proceeding is also to say that it is not a criminal proceeding” (Tulis, “Impeachment in the Constitutional Order”). Tulis argues that since the Constitution could have easily defined the impeachment process as criminal trials but it did not do so, it demonstrates that impeachment is not a legal question but rather a political one. To further support his argument, Tulis indicates that the president is not protected by the double jeopardy clause in a hypothetical situation where he commits a heinous act, such as murder. Since the consequence of being convicted of impeachment is so light, which is to be removed from office, the president is also liable to the ordinary legal process of indictment and trial in addition to impeachment. This example shows that the impeachment process is not a criminal trial and therefore should not be interpreted solely as a legal