An Abuse of Power?

What is largely missing from the entire debate over impeachment is a reasoned discussion of legislative abuse of power. If Congress recklessly invokes the impeachment power for political purposes because they detest a particular president’s policies, behavior, and personality, or worse yet, because they seek electoral advantage in the next election, at what point does this become a congressional abuse of power?

Former President John F. Kennedy devoted an entire chapter in his book, Profiles in Courage, to the discussion of the abuse of the impeachment power by Congress in the impeachment of President Andrew Johnson. A U.S. senator at the time the book was written, Kennedy focused on the clear misuse of the impeachment power in the charges brought against Johnson. Kennedy’s chapter examines the courage of Senator Edmund Ross of Kansas, a Republican who recognized the devastating separation of powers implications of the rancorous and intensely partisan impeachment of President Johnson. Senator Ross, despite tremendous pressure by his fellow Republicans to remove Johnson from office, voted to acquit Johnson on all charges. Ross faced political oblivion and poverty for his bold decision to defend the Constitution against the injustice of his own party’s attempt to remove Andrew Johnson from office.

Despite Ross’s own dislike of Johnson, and his strong disagreement with Johnson’s policies, he rightly feared that removal of Johnson from office would forever weaken the executive branch and subject the president to the whims of Congress. After Johnson was acquitted by one vote in the Senate, Ross reflected on his vote to acquit the president. As Kennedy notes, Ross eloquently defended his decision in two journal articles, writing: “In a large sense, the independence of the executive office as a coordinate branch of the government was on trial. . . .If the President must step down . . . a disgraced man . . . upon insufficient proofs and from partisan considerations, the office of President would be degraded, cease to be a coordinate branch of the government, and ever after subordinated to the legislative will.” If Johnson had been removed from office, Ross concluded: “It would practically have revolutionized our splendid political fabric into a partisan Congressional autocracy.”

In a chilling observation that has ramifications for the recent House vote to impeach Donald Trump, Ross expressed his concern that “America would pass the danger point of partisan rule and that intolerance which so often characterizes the sway of great majorities and makes them dangerous.” In this observation, Ross echoed James Madison’s famous discussion of the problems posed by a factious majority in paper number 10 of The Federalist Papers. 

Ross was not alone in this thinking. Kennedy notes that six other Republican statesmen in the Senate voted to acquit Johnson on all of the articles of impeachment brought against him. Among these six, Senator Lyman Trumbull of Illinois, who had drafted much of the major reconstruction legislation that President Johnson had vetoed, stands out for the sagacity of his arguments against removing Johnson from office. Kennedy quotes Trumbull’s reasoning at length: “The question to be decided is not whether Andrew Johnson is a proper person to fill the Presidential office, nor whether it is fit that he should remain in it. . . .Once set, the example of impeaching a President for what, when the excitement of the House shall have subsided, will be regarded as insufficient cause, no future President will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important. . . What then becomes of the checks and balances of the Constitution so carefully devised and so vital to its perpetuity?”

George Washington University law professor Jonathan Turley, an expert on impeachment, testified before the House Judiciary Committee expressing concern similar to Senators Ross and Trumbull in an earlier era. As Turley put it: “I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president. That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.”

Turley noted the need for “constitutional circumspection,” to rise above “political passion.” In this regard, Turley echoes the views of James Madison in Federalist 55 where he noted the dangers of the excesses of democracy. As Madison put it: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason.” Turley adds that “impeachment was never intended to be used as a mid-term corrective option for a divisive or unpopular leader.” As with the impeachments of Samuel Chase and Andrew Johnson, the House of Representatives has allowed emotion to govern over reason. It is now left to the Senate to exercise dispassionate judgment of the type that John F. Kennedy so passionately defended in Profiles in Courage.

Phillip G. Henderson, Ph.D. University of Michigan, is the author of Managing the Presidency: The Eisenhower Legacy, and editor of The Presidency Then and Now. He taught political science at the Catholic University of America for twenty-eight years.

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