'THE MISCONDUCT OF PUBLIC MEN’… WHAT EVERYONE NEEDS TO KNOW ABOUT IMPEACHMENT – AND 'WILL DONALD TRUMP BE IMPEACHED-’
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers And Reviews Editor, “The Barrister”
If you have lost count of the number of legal issues raised by the Trump presidency, you are not alone. One issue sheds its baleful light over all the others and that is the spectre of impeachment. As you’ll discover from this book by Professor Michael J. Gerhardt, the issue is complex and therefore all-the-more mesmerizing.
Gerhardt, a legal expert, is especially noteworthy as 'the only joint witness in the impeachment proceedings against President Clinton’. This is not too surprising when you discover that Gerhardt has made impeachment a special area of study, having written about it since 1989 (in an article for the Texas Law Review). His book 'The Federal Impeachment Process: A Constitutional and Historical Analysis’ in 2018 has been published in a new third edition by the University of Chicago Press. Included in his formidable list of credentials is a distinguished professorship in Constitutional Law at the University of North Carolina, Chapel Hill.
Many tend to regard impeachment as a peculiarly American concept, but it isn’t, as Gerhardt explains in detail. And yes, this is an American book published in America in both hardback and paperback by the Oxford University Press.
What distinguishes the book is not only its erudition, but its accessibility to every reader, thanks to the author’s plain English approach and the robust question and answer format. The questions are short and to the point; the answers certainly aren’t. They are necessarily detailed, carefully argued, concise and consistently illuminating.
'What are the origins of impeachment-’ is just one example of a simple question with a discursive answer which identifies two sources: 'England and the States.’ The States created 'a uniquely American system of impeachment,’ says the author, adding that Americans (of the eighteenth century) 'adapted the English procedures and precedents, as best they could, to their circumstances.’ It is explained further that one of the authorities used by the original 'framers’ of the American constitution was William Blackstone’s “Commentaries on the Laws of England”.
The book offers numerous examples of certain controversies that have arisen from perceived differences or ambiguities in the language in which the Constitution – an 18th century document – is written. Such luminaries as Alexander Hamilton – (again a famous name on both sides of the Atlantic thanks to the wildly popular musical) – expounded their views in the Federalist Papers on 'the Constitution they had just drafted.’
Discussing the types of offences that could be regarded as impeachable, Hamilton referred to 'those offences which proceed from the misconduct of public men or… from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety, be denominated POLITICAL as they relate chiefly to injuries done immediately to society itself.’ The capitalization is Hamilton’s.
The upshot appears to be that impeachable offences must be those that are political in nature – and determined by the case by case evolutionary process that characterises English common law. The point is made that not all crimes are impeachable and not all impeachable offences are necessarily crimes. The exact meaning/definition of the phrase 'high crimes and misdemeanours’ elicits much discussion, which of course makes the book more interesting.
Gerhardt’s stated aim in writing this book includes the asking of 'every conceivable question about impeachment’ and putting forward in detail every pertinent answer in – we might add – the clearest possible manner. However, as no human – and no human institution is perfect, neither is the impeachment process, as is demonstrated by the book’s concluding chapter which asks the question: 'Will Donald Trump be Impeached-’ There follow some three dozen other questions ending with a quite lengthy discourse on his tweets on which controversy still rages.
One can conclude from the book that there are any number of factors which determine not just whether an impeachment can take place, but whether it will be ultimately successful. The book’s appendix is a Table of US Impeachments (19 of them, mostly district judges and two presidents) dating from 1797 to 2010. The outcomes in each case are, well, interesting to say the least.
Of special note is the author’s conclusion which certainly summarises the often-bewildering complexities of the impeachment process. While constitutional standards do not change, pubic mores and attitudes do, over the generations and it appears for the most part, that there seems to have been a reluctance to impeach.
What is important, in the words of Gerhardt, is that 'the American people must know that, if their leaders cannot maintain the standards of behaviour that the Constitution demands from them, they have the power to do something about it.’ Whether that power is exercised is the direction of the current president remains to be seen. If it is decided that the president should be impeached, we will expect a brand-new edition of this book.
The publication date of this paperback book is cited as at 17th July 2018.