67 Geo. Wash. L. Rev. 650 (1998-1999)
Impeachment: The Structural Understanding

handle is hein.journals/gwlr67 and id is 660 raw text is: Impeachment:
The Structural Understanding
John 0. McGinnis*
The Constitution states that It]he President, Vice President and all civil
Officers of the United States, shalldbe removed from Office on Impeachment
for, and Conviction of, Treason, tmtery, or other high Crimes and Misde-
meanors.' To understand the meaning of high Crimes and Misdemeanors,
we must understand the purpose of the clause. Like other constitutional
processes, impeachment responds to a particular problem of governance-in
this case, how to end the tenure of an officer whose conduct has seriously
undermined his fitness for continued service and thus poses an unacceptable
risk of injury to the Republic.
This purpose is evident from the structure of this provision and other
provisions relating to impeachment. First, the only legal consequences that
flow from impeachment proceedings-removal from office and potential dis-
qualification from future office-make little sense unless impeachment is
aimed at removing unfit officials.2 Impeachment permits no penal sanctions
and contemplates no consequences short of removal. The consequences of
impeachment and conviction go just far enough, and no further than, to re-
move the threat posed to the Republic by an unfit official.
The procedure for impeachment-indictment by the House and trial by
the Senate-suggests that the Framers were interested in addressing any ob-
jective misconduct so serious that it poses an unacceptable risk to the public
rather than in addressing some fixed list of offenses or a set of offenses deter-
mined by some abstract rule. If impeachable offenses could be set out in
such a determinate matter, it would have made more sense to give the re-
sponsibility for evaluating them to the judiciary, the arbiter of cases under
determinate rules. On the other hand, if the task of impeachment requires
the evaluation of a range of offenses in relation to fitness for office, the logi-
cal place for such responsibility is in Congress, the repository of prudential
judgment.3 Judging whether misconduct undermines fitness and makes con-
* Professor of Law, Benjamin N. Cardozo Law School. I would like to thank John Duffy,
David Golove, Michael Herz, David Katz, Nelson Lund, Alan Meese, Mark Movsesian, and
Michael Rappaport for helpful comments on this essay. I also would like to thank Akhil Amar,
with whom I had many useful discussions on this subject, for stimulating further thoughts. Much
of the substance of this essay was delivered to the Subcommittee on the Constitution of the
House Judiciary Committee on November 11, 1998. I have made substantial additions, however,
both to respond to the comments of other scholars at the hearing and to place impeachment in
the context of the political theory that animates the Constitution.
1 U.S. CONsT. art. II, § 4.
2 For a more comprehensive discussion of how the Constitution limits impeachment to
only these two potential consequences, see notes 46-51 and the accompanying text.
3 Alexander Hamilton made this point:
The necessity of a numerous court for the trial of impeachments is equally dictated
by the nature of the proceeding. This can never be tied down by such strict rules,
March 1999 Vol. 67 No. 3

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