|I read the 1998 re-publication, but this new, updated edition is coming out in September|
half of the 20th century. In 1974, as the possibility of impeachment was becoming more and more likely, Black penned this short book. (Black's preface is dated 21 May 1974; Nixon resigned in the face of an impending impeachment in August of that year.) Black mentions Nixon early in the book, pointing out that he'd never been a fan of Nixon, but Black also noted that he didn't think that Nixon was legally obligated to produce the tapes. (The Supreme Court differed.) This brief mention at the beginning of the book is about all that's topical; thus, the remainder of the book focuses on the law and issues surrounding a presidential impeachment. And this is one reason why this book remains so valuable today.
I'll quote liberally from Black because his writing is so pithy and graceful, not to mention authoritative. Black makes this important point near the beginning of his work:
No matter, then, can be of higher political importance than our considering whether in any given instance, this act of choice [presidential election] is to be undone and the chosen president dismissed from office in disgrace. Everyone must shrink at this most drastic measure.
Impeachment: A Handbook (1974; 1998 with forward by Akil Reed Amar), 1
Thus, Black makes clear his assessment of the profundity of the issues at hand. But while the issues are profound, they can be considered by careful analysis. In his Forward, Akil Reed Amar (another Yale constitutional scholar) describes Black's framework and process: "The right question to ask, says Black, is not 'what finite set of offenses James Madison had in his head when he agreed to the phrase 'high crimes and misdemeanors'? but rather 'what misdeeds do we today--here and now--deem so gross and malignant as to warrant undoing a national election?'" (Id. X) Thus does Black dispatch the naive "originalism" propounded by some in the arena of constitutional law today. On the topic of interpreting the Constitution, Black states:
An understanding of the questions is more important than a fixed conviction concerning the answers." Id. 3.
Black builds on this insight by stating:
"[I]t is the cardinal principle at least of American constitutional interpretation that the Constitution is to be interpreted so as to be workable and reasonable. This principle does not collide with respect for the "intention of the Framers" because their transcendent intent was to build just such a Constitution." Id. 4.
With these principles in mind, Black turns more directly to the issues and procedures of impeachment. For instance, while the courts have no direct role in impeachment (there is no judicial review of the decisions of the House and Senate), the matter is one that calls for the practice of sound legal procedures and analysis. Black argues that members of the House, who impeach the president (the equivalent of the criminal indictment), should act as if they were grand jurors in reviewing the issues and evidence. By implication, members of the Senate should act as trial jurors. But there are limits to the analogy of a legal proceeding. For instance, no standards of proof or rules of evidence apply. These issues remain within the sound discretion of the members of Congress (heaven help us!). In voting on each Article (element) of the House charges, each senator must
ask two questions together: "Did the president do what in this Article he is charged with having done?" "If he did, did that action constitute an impeachable offense within the meaning of the constitutional phrase?" Id. 13.But the real key to understanding the impeachment provision surrounds the phrase "Treason, Bribery, and other high Crimes and Misdemeanors." The first two elements are (relatively) clear, but that last is a bit of a challenge. Black, before wading deep into the issues of understanding the third element, emphasizes that "maladministration" is not an element and that the phrase "high Crimes and Misdemeanors" "out to be conceived as offenses having about them some flavor of criminality." Id. 29. Note--not that an element must constitute some kind of crime, only that it has "the flavor" of "criminality." Black goes on to argue that there are some acts that while not crimes per se, they do nevertheless constitute grounds for impeachment. And some acts that are clearly crimes do not provide sufficient grounds. For instance, religious tests for office or blanket pardons while not crimes per se, would, in Black's opinion, constitute grounds. (My, how his examples ring topical!) And sexual improprieties or other minor crimes or crimes unrelated to the exercise of the office, would not be grounds. (Again, how prescient!). Black discusses scenarios that elucidate his principles and provide easily appreciate examples. He has his perspective, but true to his principles of constitutional interpretation, he does not lay down dogmatic conclusions but well-constructed arguments. The book is worth the time just to review his consideration of the various scenarios, which display a subtle and learned mind at work.
I can't think of a better primer about the issue of impeachment, and certainly not one so worthwhile and so short. Two books published this year, one by Cass Sunstein (I've read) and one by Laurence Tribe and Joshua Matz ( I'm reading) are excellent and point to Black as a valued predecessor, but neither is as short or pithy nor as removed from current events (distance themselves as they try). So, this is the place to start and even where to end if you're short of time.
N.B. As I noted in the caption to the cover image, a new edition, updated by constitutional scholar Phillip Bobbit, is due out on 18 September, and will certainly become the preferred edition, since it can incorporate the effects of the Clinton impeachment.