Impeachment Spectacles: Perspectives and Focus on Political, Legal and Governance Lessons from the Founding to the Present

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in the Seton Hall Journal of Legislation and Public Policy, titled “Impeachment Spectacles: Perspectives and Focus on Political, Legal and Governance Lessons from the Founding to the Present.”

This paper was submitted in connection with the October 20, 2023, symposium entitled Lessons in Leadership on the 50th Anniversary of Watergate.

Following is an excerpt:

The House of Representatives has impeached three presidents— one twice, and two just once each in 1868 and 1998. Another, famously, was almost impeached, and much of our modern sense of what impeachment entails springs from that near-impeachment. The Senate has never convicted a president of the impeachment charges lodged, though one president resigned before he faced an impeachment vote or Senate trial that might well have revealed a bipartisan consensus “on his removal that would have demonstrated the health of the process.” Presidential impeachments often contain elements of spectacle, comprised of sometimes complementary, sometimes competing parts: a challenge of governance, politics, law, theatre, and a “who done it?” intrigue played out in the shadows of considerations of criminal law. The Watergate hearings conducted by Chairman Peter Rodino (D-NJ) before the House Judiciary Committee are often praised for their tempered, workman-like approach to addressing the important issues before the Committee with less of such sense of spectacle, though certainly all of those elements of spectacle presented in one way or another across the related congressional Committees, hearings, and proceedings. This history leaves us with the question of whether the Founders envisioned, or perhaps even intended such spectacle, and whether the impeachment processes have alternatives that might better serve the constitutional order.

This paper examines presidential impeachment, the spectacles that it has produced, and the lenses through which that history ought to be viewed. Part II examines the six references to impeachment in the Constitution as well as the discussion of it in the Federalist Papers, in Madison’s papers, and by the anti-federalists and others to establish its original place in the U.S. constitutional system. Part III discusses the presidential impeachments and near impeachments of Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump with an eye toward understanding how the constitutional framework has been applied in practice, and whether this power deserves being “described as ‘the most powerful weapon in the political armoury, short of civil war.’” Part IV highlights how governance, political, and criminal law perspectives have influenced the understanding and process of impeachment. Finally, Part V comments on how best to view the impeachment process in a manner aligned with the Founders’ multi-focal constitutional perspective.