Impeachment is the constitutional process by which federal officials may be removed from office. Across multiple episodes of the Bob Zadek Show, guests Gene Healy and Timothy Sandefur examined its historical origins, its application to presidents and other civil officers, and competing views about how broadly the remedy should be understood.
Historical Origins and the Founders’ Design
Gene Healy, Vice President at the Cato Institute, traced impeachment’s lineage to a period well before the American founding. He noted that impeachment had a 400-year history before it made its way into the U.S. Constitution, dating from the 14th century in England, where it was considered by Parliament a guarantor of the rights of the people and the rights of Parliament. That history, Healy said, informed the framing of the Constitution and the framing of impeachment provisions in the state constitutions Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Healy emphasized that the bulk of discussion at the Constitutional Convention about impeachment concerned the presidency. The longest debate on the impeachment power, on July 20th, was entirely with reference to the impeachment of the president. James Madison addressed the matter at that debate, arguing that an impeachment remedy for the presidency was indispensable because the presidency is the one office headed up by a single man. Madison observed that if a judge goes wrong, or if a congressman or two are corrupt, the multiplicity of members dilutes the damage any one of them can do. But with the presidency, Madison said, incapacity or negligence or perfidy in that office could be fatal to the republic Which Impeachment Movie Are You Watching? (2019).
Healy drew a connection between the Founders’ concern and the modern expansion of presidential power. He argued that if the Founders viewed the presidency as uniquely dangerous because it is headed by one person, that concern only becomes more compelling when the office gains vast new powers. He noted that some law professors have argued too much depends on the office of the presidency to remove a president, but he contended that reasoning cuts the other way: the United States can survive a crooked federal judge or cabinet secretary, but the one official who has nuclear weapons and controls federal law enforcement poses a continuing danger if unfit Which Impeachment Movie Are You Watching? (2019).
Scope: Who Can Be Impeached
The question of which officials are subject to impeachment arose in a discussion between Bob Zadek and Gene Healy. Zadek observed that most impeachment discussion at the founding concerned the president, and he suggested this was because there were not many federal officials other than the House and Senate, which cannot be impeached because each body runs itself. Healy responded that the Founders were envisioning a judiciary, and that James Madison at least was not clear on the fact that impeachment does not apply to congressmen and senators. Healy noted that this was decided pretty much in the first impeachment, in 1797, involving Senator William Blount. In the Senate trial, there was no vote of conviction, and it appears the reason was that the Senate said it did not have jurisdiction because a senator is not one of the civil officers of the United States who could be impeached. Healy added that federal judges were certainly in the mix, and that impeachment was a remedy the Founders extended further than just the president The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
Obstruction of Congress as an Article of Impeachment
Healy discussed the article of impeachment based on obstruction of Congress, distinguishing it from obstruction of justice. He explained that Article I of the Nixon impeachment and Article II of the Clinton impeachment concerned obstruction of justice in the criminal process sense, while the second article of impeachment that the House passed against Trump was obstruction of Congress. That article, Healy said, was based on an article of impeachment that the House Judiciary Committee passed against Nixon in 1974—the third article—which was also obstruction of Congress. The theory was that in an impeachment inquiry, the House’s entitlement to information from the president is at its height and the president cannot just decide for himself what he will provide. Healy noted this was the most controversial of the three articles against Nixon, receiving the fewest votes, only one Republican vote. He contrasted Nixon’s partial compliance—releasing edited transcripts of tapes Congress wanted—with Trump’s behavior, which Healy described as more sweeping and categorical, with Trump saying from the beginning of the impeachment inquiries that he thought the process was biased and illegitimate and that he would not give Congress anything. Healy said the Trump article based on obstruction of Congress was, in his view, pretty well grounded Which Impeachment Movie Are You Watching? (2019).
The Case for Broader Impeachment Standards
Timothy Sandefur offered a different perspective, arguing for expanding the grounds for impeachment. He stated that he and co-authors believed the Constitution as originally written and intended was perfectly fine, but that misconceptions had grown up around how impeachment operates. Their view was that there should be a heck of a lot more impeachment than has ever occurred in American history, not just of presidents but of judges and others as well. Sandefur addressed the question of whether a president could be impeached for something other than a crime, or simply for being unfit. He said many people think impeaching a president for unfitness would be inappropriate, but that it is perfectly legitimate and should be done more often. He described amending their proposed constitution to add language beyond the original “treason, bribery, or other high crimes and misdemeanors”—specifically adding “or other behavior that renders them unfit for office.” He illustrated the problem with the narrower standard by positing a president who left the country, moved to Sweden, and refused to answer his telephone; under the theory that only criminal conduct is impeachable, such a president could not be impeached. Sandefur called that ludicrous and said the amended language would allow impeachment for any behavior rendering the president unfit Timothy Sandefur on The Libertarian Constitution (2021).
Zadek asked whether the behavior would need to occur while serving as president, or whether pre-election behavior could qualify. Sandefur replied that pre-election behavior is a perfectly legitimate target and that their language would allow a president to be impeached for it. Zadek then asked whether a president could take the oath and then face impeachment proceedings on the way off the platform, served with impeachment papers. Sandefur answered affirmatively, saying he thought it would be a healthier nation if that were done Timothy Sandefur on The Libertarian Constitution (2021).
Impeachment as an “Indispensable Remedy”
Healy’s book, Impeachment: The Indispensable Remedy, and his article “Don’t Freak Out” framed much of the discussion. Zadek noted that the phrase “indispensable remedy” has a rich constitutional history and is not merely Healy’s own point of view Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018). Healy argued that impeachment tends to become a subject of major discussion in the United States only when there is a president in the crosshairs, but that one’s view of how broad or narrow the causes of impeachment should be should not turn on what one thinks of Donald Trump, because Trump will not be the last president. He warned that raising the bar to impeachment to save a president one loves, or lowering it to target a president one hates, may lead to regretting the standard that was set when a different president comes along Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Healy also sought to counter what he characterized as hysteria over impeachment. He said that on the rare occasions when a serious debate about impeachment occurs, there is agonizing over the process, with people acting as though it is a Doomsday device wired into the Constitution. But looking at historical experience with presidential impeachment, he said, none of the scare stories turn out to be true: it is not that disruptive, it does not paralyze government, it does not wreck the economy, and it is not a national trauma. It has rarely done serious harm and, in at least one occasion—1974—it did a lot of good. He argued that treating impeachment as a world-historical, earth-shaking, emotional event is itself a reflection of the cult of the presidency and the outsized importance placed on that office Which Impeachment Movie Are You Watching? (2019).
Across episodes
The topic of impeachment appears across four episodes spanning 2014 to 2021. In the 2014 episode, Gene Healy discussed the scope of impeachment and the Blount case; in the 2018 and 2019 episodes, Healy returned to discuss his book and article, the historical origins of impeachment, the Founders’ focus on the presidency, and the obstruction of Congress article against Trump. In the 2021 episode, Timothy Sandefur advanced a distinct argument for amending the Constitution to broaden impeachment grounds to include behavior rendering an official unfit for office. The excerpts show a development from Healy’s historical and defensive account of impeachment as an underused but not catastrophic remedy to Sandefur’s more expansive proposal for constitutional amendment.
What the sources do not cover
The excerpts do not provide the full text of the Constitution’s impeachment provisions, nor do they detail the specific procedures of the Senate trial beyond the Blount case. They do not state the outcome of the Trump impeachment proceedings in the Senate, nor do they discuss the first article of impeachment against Trump. The excerpts also do not address impeachment of state officials or the role of the Chief Justice in presidential impeachment trials.