of power"—since "far from being above the laws," he is "amenable to them … by impeachment."[1] Hamilton struck the same note. In Federalist No. 70, he remarked that the Constitution affords Americans the "greatest securities they can have for the faithful exercise of any delegated power," including the power to discover "with facility and clearness" any misconduct requiring "removal from office."[2] Impeachment and executive power were thus closely intertwined in the Framers' constitutional plan: the President could be vested with awesome power, but only because he faced removal from office for grave abuses.
The architects of checks and balances meant no exceptions to this rule. There is no power in the Constitution that a President can exercise immune from legal consequence. The existence of any such unchecked and uncheckable authority in the federal government would offend the bedrock principle that nobody is above the law. It would also upend the reasons why our Framers wrote impeachment into the Constitution: the exact forms of Presidential wrongdoing that they discussed in Philadelphia could be committed through use of executive powers, and it is unthinkable that the Framers left the Nation defenseless in such cases. In fact, when questioned by Mason in Virginia, Madison expressly stated that the President could be impeached for abuse of his exclusive pardon power—a view that the Supreme Court later echoed in Ex Parte Grossman.[3] By the same token, a President could surely be impeached for treason if he fired the Attorney General to thwart the unmasking of an enemy spy in wartime; he could impeached for bribery if he offered to divulge state secrets to a foreign nation, conditioned on regulatory exemptions for his family business.[4] Simply put, "the fact that a power is exclusive to the executive—that is, the president alone may exercise it—does not mean the power cannot be exercised in clear bad faith, and that Congress cannot look into or act upon knowledge of that abuse."[5]
The rule that abuse of power can lead to removal encompasses all three branches. The Impeachment Clause applies to "The President, Vice President and all civil Officers of the United States," including Article III judges.[6] There is no exception to impeachment for misconduct by federal judges involving the exercise of their official powers. In fact, the opposite is true: "If in the exercise of the powers with which they are clothed as ministers of justice, [judges] act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by
- ↑ 2 Elliot, Debates in the Several State Conventions at 480.
- ↑ Alexander Hamilton, Federalist No. 70 at 456.
- ↑ 3 Elliot,Debates in the Several State Conventions at 497-98; Ex Parte Grossman, 267 U.S. at 121. Madison adhered to this understanding after the Constitution was ratified. In 1789, he explained to his colleagues in the House that the President would be subject to impeachment for abuse of the removal power—which is held by the President alone—"if he suffers [his appointees] to perpetrate with impunity High crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses." 1 Annals of Congress 387 (1789).
- ↑ Scholars have offered many examples and hypotheticals that they see as illustrative of this point. See Bowman, High Crimes and Misdemeanors at 258; Black & Bobbitt, Impeachment at 115; Hemel & Posner, Presidential Obstruction of Justice at 1297; Tribe & Matz, To End a Presidency at 61.
- ↑ Jane Chong, Impeachment-Proof? The President's Unconstitutional Abuse of His Constitutional Powers, Lawfare, Jan. 2, 2018.
- ↑ U.S. Const. art. II, § 4.
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