There is an interesting interplay between articles published by Harvard Law that readers might wish to explore. Michael Paulsen, of the University of St. Thomas, wrote a response to the book written by Professor Laurence Tribe and attorney Joshua Matz entitled “To End a Presidency: The Power of Impeachment,” in an article published in the Harvard Law Review: “To End a (Republican) Presidency.” Tribe and Matz’s book attempts to establish the proper standard for impeachment. In his article, Paulsen complains that Tribe and Matz set forth an overly restrictive standard, by introducing an elements which lack textual support: 1) that the President use formal powers of his office to further wrongdoing; 2) that he is not viable as a national leader; and 3) that he “pose[s] a prospective danger of grave harm for which there is no alternative short of removal.” Paulsen claimed, additionally, that Tribe and Matz’s analysis had an unacceptably partisan slant.
Tribe and Matz wrote a strong response to Paulsen published in the Harvard Law Review forum, in an article entitled “To (Pretend to) Review our Book.” It that response they refuted that their book was aimed at partisan ends. Rather, they sought to end the tendency to jump so readily to talk of impeachment by “[emphasizing] realism over fantasy.” They wrote “impeachment is neither a magic wand nor a doomsday device. Instead, it is an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents.” It is for this reason they offer a more restrictive definition, about which Paulsen’s complaints were unfounded. First they deny that they asserted it was necessary for the President to use his office for an offense to be impeached, and though they admit to the second two requirements, refute that they lack textual support. Rather, they are borrowed from Professor Charles L. Black, Jr.’s canonical study, Impeachment: A Handbook, in which he writes:
Many common crimes–willful murder, for example–though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader; I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order. Indeed, it may be this prospective tainting of the presidency that caused even treason and bribery to be made impeachable.
There is, of course, more substance contained in the articles themselves. For an interesting debate on the subjects of originalism and partisanship in the formation of an impeachment standard, readers should visit the links above.
Richard Drew/AP
Impeachable Offenses? 