The Law Incongruous Ideas of Impeachment: “Impeachable Offenses” and the Constitutional Order

Abstract

AbstractDespite a wealth of historical evidence and constitutional, political, and legal theory, impeachment in the United States remains hotly contested and poorly understood. This article argues there is a historical explanation for the confusion. In particular, the confusion stems from two competing ideas about impeachment, one layered atop the other. Constitutionally, impeachment is an important aspect of the separation‐of‐powers system, and a tool Congress can use to remove officials who are shirking their constitutional duties or damaging the polity itself. Soon after the founding, however, a new, competing idea of impeachment began to develop—that of impeachment as a legal device to remove officials who had committed an indictable offense. This idea had roots in civic republican traditions about political opposition being illegitimate. The interplay and tension between these competing ideas can help explain why impeachment politics today is both so fraught with tension and poorly understood.