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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