We often talk about impeachable offenses as if they were a tripwire, a trigger that sets in motion a constitutional mechanism to remove guilty government officials. This is a mistaken way to think about the impeachment power, and it is misleading in a couple of important ways. First, it wrongly treats the impeachment process as mechanical. The impeachment power was vested in Congress because the assessment of whether impeachable offenses have been committed and what actions ought to be taken ineluctably requires political judgment and benefits from public responsiveness. Second, it ignores the ways in which the impeachment power is forward-looking rather than backward-looking. We might intuitively think of impeachable offenses as like criminal offenses for which the offender should receive their just desserts, but the impeachment process is fundamentally a constitutional remedy to a grave political problem. Whether the offending officeholders receive their just desserts is a secondary concern.
If use of the impeachment power is an exercise in forward-looking, political judgment, then it is worth thinking carefully about what the downsides might be of refraining to pursue an impeachment inquiry in the face of impeachable offenses.
If members of Congress were to refrain from acting on impeachable offenses, there are a set of potential downsides for the constitutional system as a whole. The most compelling reason for Congress to act is that only such action would set the system aright. If an official is abusing their constitutional powers, impeachment and removal might be the most effective means for preventing further abuses. The more common concern is not that the officer in the crosshairs of a potential impeachment might continue to engage in impeachable offenses in the future if left alone, but that the officer will set a bad example for others. Indeed, the past sins of the officer might be so severe that they leave a permanent stain that cannot be removed with time. The individual who has committed an impeachable offense may no longer be able to effectively perform the duties of his or her office, and thus resignation or removal might be the only remedy for moving out of the long-shadow of a past notorious offense.
The argument that President Clinton had sullied the dignity of his office fell close to this concern. The office could only be restored, from that perspective, by his departure. Similarly, a judge who had once engaged in unethical behavior might find that all future actions were tainted by memory of that event and as a consequence their ability to effectively exercise the duties of their office would be compromised. A Congress that refused to remove a judge in that situation risked enduring damage to the integrity of the judiciary.
If Congress tolerates officers who commit high crimes and misdemeanors, it sends a signal to other officers that those crimes are not beyond the pale. Often, the political conventions that the officer is violating are well known and well established. A judge who accepts bribes is not taking advantage of a legal grey area; he is violating the basic expectations regarding judicial good behavior. If Congress passively tolerates such violations of political norms, there is a risk that those norms will be gradually eroded over time. In other cases, the norms are not so well established, and an impeachment can do shift and consolidate constitutional conventions so as to send a message to all future political actors as to what good behavior should look like going forward.
The impeachment of Justice Samuel Chase for his partisan behavior on the bench in the run-up to the election of 1800, contributed to establishing a new norm against political partisanship by federal judges. Ignoring Chase’s behavior would have been an open invitation to judges to behave similarly in future electoral contests. The Jeffersonians seized the opportunity to make an example of Chase and clarify how the constitutional system should work going forward. His actual removal from the bench was unnecessary to accomplish that goal: while he was ultimately acquitted, the impeachment itself did most of the work.
Knowing the facts about what happened in a particular scandal is important but can hardly determine whether Congress should move forward with an impeachment effort. This requires political judgment, and is perhaps one of the most important decisions that a member of Congress can make. The dangers and challenges of moving forward with an impeachment effort are often obvious, but members of Congress should think carefully as well about the risks involved in refusing to pursue an impeachment when one might be warranted. The threat of impeachment is a big stick that can help sustain constitutional norms and deter constitutional abuses. If that stick is put on a shelf and never put into play, Congress might find that some who hold an office of trust under the United States are emboldened to behave badly.