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67 Geo. Wash. L. Rev. 735 (1998-1999)
Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President

handle is hein.journals/gwlr67 and id is 745 raw text is: Congress As Grand Jury: The Role of the House of Representatives in the Impeachment of an American President Jonathan Turley* Contents Introduction ............................................................. 736 I. The Separation of Powers Critique: The Executive Function Theory and Constitutional Presumptions in the Impeachment Process ....... 739 A. Separation of Powers and the Evolutionary Standard of Impeachm ent ................................................ 740 1. The Historical and Philosophical Foundations for the Separation of Powers Critique ............................. 740 2. The Static and Evolutionary Components of the Impeachment Process ..................................... 742 B. The Separation of Powers Critique: Two Divergent Views of the Executive Function Theory .................................... 745 1. The Letter of the 400 Historians ........................... 747 2. The Letter of the 400 Law Professors ...................... 753 C. The Dividing Line of Criminality: Proposed Constitutional Presumptions in the Impeachment Process ..................... 759 II. Impeachment as a Check on Presidential Power .................... 762 A. The Historical Treatment of Impeachment As a Check on Presidential Power ............................................ 763 B. The Structural View of Impeachment As a Check on Presidential M isconduct .................................................. 769 III. The Role of the House of Representatives in the Impeachment Process .................. ........................................ 771 A. Bicameralism and Impeachment: The House of Representatives As Grand Jury ............................................... 771 B. Detection and Deterrence of Presidential Misconduct ........... 777 1. Censure: The Use of a Shaming Device As an Alternative to Impeachment ............................................. 783 2. Nullification: The Option of Inaction As an Alternative to Impeachment ............................................. 786 Conclusion .............................................................. 789 * J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University Law School. This Article was written before the formal impeachment proceedings against President Clinton and was later modified to incorporate some of the views expressed during those proceedings. Although this Article presents different material from my submission to Congress, the theory of impeachment contained in this Article was presented as part of my testimony to the Subcommittee on the Constitution of the House Committee on the Judiciary at the hearing on impeachment standards. See Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. 250- 276 (1998) (testimony and prepared statement of Jonathan Turley); see also Jonathan Turley, Senate Trials and Factional Disputes: Impeachment As a Madisonian Device, 48 DuKE LJ. 1 (forthcoming 1999) (discussing the historical and constitutional role of impeachment trials dur- ing the English, colonial, and constitutional periods); Jonathan Turley, The Executive Function Theory, the Hamilton Affair, and Other Constitutional Mythologies, 77 N.C. L. RIv. (forthcom- ing 1999) (discussing the use of constitutional mythology in the context of American impeach- ment cases). March 1999 Vol. 67 No. 3

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