Season 2, Episode 14 | High Crimes or Political Fights? When Impeachment Becomes a Constitutional Battleground

When we hear “impeachment,” most of us immediately think: the President. But what if that’s only part of the story? In this episode of This Constitution, Savannah Eccles Johnston and Matthew Brogdon explore the lesser-known history of impeaching cabinet secretaries and other executive officials, revealing how the process has always been more political than legal.

They revisit the case of Secretary of War William Belknap, who resigned in tears in 1876, hoping to dodge impeachment—only to face it anyway. Fast-forward to 2024, and Secretary Alejandro Mayorkas is at the center of a modern-day controversy that reopens the same unresolved questions. Can officials be impeached after they’ve left office? What actually qualifies as a “high crime or misdemeanor”? And who decides?

Through historical case studies, sharp legal insight, and a few surprising turns (including George Washington daring Congress to impeach him), this episode digs into how impeachment functions as a tool of accountability—and a reflection of the political moment.

If you think impeachment is just about criminal wrongdoing, think again. This conversation will shift how you view one of the Constitution’s most powerful and misunderstood mechanisms.

In This Episode

• (00:13) Introduction and overview
• (00:59) Impeachment process and constitutional ambiguity
• (02:52) Impeaching former officials: The Belknap case
• (05:32) Impeachment after resignation: Nixon and precedents
• (07:50) Trump’s second impeachment and unresolved legal questions
• (08:21) Senate jurisdiction and the Blount case
• (11:30) Defining high crimes and misdemeanors: Johnson’s impeachment
• (13:07) Political vs. legal grounds for impeachment
• (15:23) Impeachment standards for judges vs. executives
• (16:12) Early impeachment threats: Washington and the Jay Treaty
• (17:39) Modern debates: Mayorkas's impeachment and political disputes
• (19:19) Impeachment responsibility: Cabinet secretaries vs. presidents
• (22:32) Impeachment as a congressional tool
• (23:16) Impeachment’s political nature and checks and balances
• (24:36) Impeachment vs. criminal prosecution
• (27:05) Conclusion: Impeachment’s role in American government

Notable Quotes

• (00:43) "When it comes to executive impeachments, we have a history of failed impeachments." — Savannah
• (03:01) "Can you impeach former government officials? The Constitution does not tell us... This is something that had to be figured out in the moment that it became an issue." — Savannah 
• (05:10) "I just hope at some point in my life I can find an occasion to look at an office holder and say, you have prostituted your high office out of a lust for private gain." — Matthew
• (06:43) "Impeachment is not just about removing people from office. It's also about the possibility of excluding them or disqualifying them from future office holding." — Matthew 
• (17:05) "Washington was saying, impeach me if you think I can't be trusted and I violated the public interest in negotiating this treaty." — Matthew 
• (26:29) "One use for impeachment is to remove a president so that he can be successfully criminally charged." — Savannah 
• (27:07) "Impeachment is a tool in the checks and balances toolbox when it comes to working out disputes between the branches." — Matthew 

Transcript

Intro

[0:03 – 0:16]:

We the people, do ordain and establish this Constitution.

Savannah Eccles Johnston

[0:13 – 0:15]:

Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon

[0:16 – 0:17]:

And I'm Matthew Brogdon.

Savannah Eccles Johnston:
 [0:17 – 0:47]:

And today we're doing our second episode on impeachment. Except this time, we're going to focus on executive impeachments—which, when we talk about impeachment, everyone thinks: the president. You think about removing a president from office. But really, we've only had three presidents who have been impeached, zero presidents who have been convicted. And we've had two cabinet secretaries who have been impeached—zero cabinet secretaries convicted. So when it comes to executive impeachments, we have a history of failed impeachments, which is what we actually have.

Matthew Brogdon:
 [0:47 – 0:51]:

Well, the other way to put it is, maybe we just have a very successful political system.

Savannah Eccles Johnston

[0:51 – 0:52]:
 
 There we go.

Matthew Brogdon
 [0:52 – 1:00]:

That manages to select people we don't mind too much—and has other ways of getting rid of cabinet secretaries who are scumbags.

Savannah Eccles Johnston
 [1:00 – 1:24]:

Much better way to put it, right. But what's interesting—as you were pointing out before we started recording—is that although impeachment is rare, it's a process that has been kind of iterated on and constructed over time. It doesn't match impeachment processes that existed in the states or in the British system prior to the U.S. Constitution. And maybe that's not a problem.

Matthew Brogdon
 [1:24 – 2:52]:

No, I don't think so. I mean, if the framers had really tried to be terribly specific about all this... I mean, they have some guidelines: they've got a lot of provisions about who brings the articles of impeachment, who tries the impeachment, who decides guilt, what are the available consequences. Those sort of essential things are laid out. And then there's a lot of play in the joints for how you implement this and just exactly how you go about the process. That’s the founders showing some wisdom—leaving room for this.
 James Madison had this concept of "liquidation" of constitutional meaning. He mentions this in The Federalist Papers at one point. He says there are certain provisions of the Constitution—I think he's thinking about institutional processes here—where there’s genuine ambiguity. The Constitution doesn't answer the question. And he says those kinds of gaps have to be filled in through time, over practice. And when those practices are engaged in, and people accept them, the meaning becomes liquidated. In other words, it almost becomes sort of part of the constitutional system—these things that aren’t explicit but become established understandings of the way we do things.
 Now, that's a bit different than living constitutionalism, which would suggest that the Constitution just changes its meaning over time—like words that meant something at one time now mean something completely different. That's not what Madison’s saying. But where you have genuine gaps—you do have to go through a process of figuring it out.

Savannah Eccles Johnston
 [2:52 – 3:26]:

And we have at least two of those gaps that we want to talk about today as they relate to impeachment. And the first—this is very interesting: can you impeach former government officials? The Constitution obviously does not tell us in the impeachment clauses, “In case someone resigns first, you can still impeach them.” This is something that had to be figured out in the moment that it became an issue.
 So in this case, we have William Belknap, 1876. He is the Secretary of War under Grant.

Matthew Brogdon
 [3:26 - 3:30]:

And the only cabinet secretary ever to be impeached. Is that right?

Savannah Eccles Johnston
 [3:30 - 3:33]:

No, we've had two impeachments, zero convictions.

Matthew Brogdon
 [3:33 - 3:33]:

Okay.

Savannah Eccles Johnston
 [3:33 - 3:37]:

Yeah. So the second being Alejandro Mayorkas.

Matthew Brogdon
 [3:37 - 3:39]:

I always forget. It's so recent.

Savannah Eccles Johnston
 [3:39 - 5:09]:
 
 
 

It's so recent. It doesn't factor in yet. So he's Secretary of War under Grant. And basically where this comes from is this guy lives this super lavish lifestyle, and you see it in particular with his first and then later his second wife. They're always dressed to the nines. They're hosting big parties, and people begin to ask questions, how is he affording this on an $8,000 a year salary? And it comes out that he's getting some serious kickbacks. Basically corruption in the War Department is how this is happening. And so the House begins investigating, and the day that they're going to bring impeachment charges against him, he flees to the White House, resigns to President Grant, and bursts into tears thinking he saved himself from the ignominy of impeachment by resigning first. But the House says, no, no, we can continue with this. It doesn't matter that you're resigned, because at least part of conviction is preventing you from ever holding a position of trust in the United States again. And I do want to read out because it's so good. This is their article of impeachment against him. This is 1800s language, criminally disregarding his duty as Secretary of War and basically prostituting his high office to his lust for private gain. That is the article of impeachment against Secretary of War Belknap. So how do you justify continuing with an impeachment and conviction for someone who is now resigned and no longer a threat in office?

Matthew Brogdon
 [5:10 - 5:49]:

I just hope at some point in my life I can find an occasion to look at an office holder and say, you have prostituted your high office out of a lust for private gain. And then watch the melt, you know, from the sort of shame. Righteous indignation of the statement and the shame that results How do you justify this? How do you justify it? I think we should first observe that in many cases people do resign from office and the Senate sort of drops the charges. That happened with quite a few judges who were impeached for misbehavior in various ways.

Savannah Eccles Johnston
 [5:49 - 5:50]:

And Nixon resigned, did this, though they never even impeached him.

Matthew Brogdon
 [5:50 - 5:58]:
 
 
 

Yeah, Nixon, they had drawn up articles of impeachment. The House committee had proposed them. The House had not voted to adopt them yet. But Nixon had been told, if these articles of impeachment come to the Senate, you're gonna be convicted.

Savannah Eccles Johnston
 [6:04 - 6:07]:

And interestingly, they don't pursue it after he resigns.

Matthew Brogdon
 [6:07 - 6:07]:

No.

Savannah Eccles Johnston
 [6:07 - 6:08]:

That's very interesting.

Matthew Brogdon
 [6:08 - 6:20]:

They leave him alone. And then, of course, Ford pardons him. So there's. In Richard Nixon's case, there's a kind of like, we got him out of office, it's over. Everybody sort of goes home.
  It's just, this is over, let's move on. And that is not how this is being treated. There's a kind of, you know, in some ways, an appropriate moral indignation that goes on in Belknap's case. And the Senate wants to go forward with the prosecution. And like you pointed out, the important thing here is that impeachment's not just about removing people from office. It's also about the possibility of excluding them or disqualifying them from future office holding. Though you can't do it all. It's from holding any office of profit or trust under the United States. So not a state. Like, they could still go be governor or something.

Savannah Eccles Johnston
 [7:01 - 7:01]:

You just can't be an ambassador.

Matthew Brogdon

[7:03 - 7:26]:

So I don't see a problem with that. I mean, I. What? Of course. I mean, there could be people. There are people. You, you think, well, you've egregiously mishandled the responsibilities of your office. You violated the public trust. We don't want you to be in office again. I don't see why the Senate shouldn't be able to follow through on that and go, no, you're not going to show, but we're going to disqualify you so that we don't have to worry about you popping back up.

Savannah Eccles Johnston
 [7:26 - 7:35]:

Right. So this logic holds for 150 years. Although we should point out the Senate does not convict Belknap, I think he dies within just a few months.

Matthew Brogdon
 [7:35 – 7:38]:

So why don't they convict? Did they actually take a vote? I don't know about this.

Savannah Eccles Johnston
 [7:38 – 8:21]:

I don't know why they didn't convict. But he didn't reach the level of conviction. But again, it's very, very difficult to convict. So they don't convict him. And for 150 years, this logic holds that you can proceed with an impeachment conviction trial of someone who's no longer in office. The next time we deal with this is President Trump's second impeachment trial—so 2021, in response to his actions on January 6th. But this trial is happening in February—or late January, early February. He is no longer in office. President Biden is now president. And that logic still holds, again, for that second reason. It's not just about removing someone from office. It's about the potential to prevent them from ever holding a position of trust in the United States again.

Matthew Brogdon
 [8:21 – 8:33]:

And it's important that a number of Republicans in the Senate argued, I'm not voting for conviction because I think he's already out of office. We have no jurisdiction.

Matthew Brogdon
 [8:33 – 8:50]:

So this is actually one of those cases where the Senate says, this is not a question of whether they're guilty or not, it's just a question of whether we have jurisdiction over them. And this actually—the very first impeachment in our country raised this, though. It's really a weird one. A guy named William Blount, who's a signer of the Constitution.

Savannah Eccles Johnston
 [8:50 – 8:51]:

Okay.

Matthew Brogdon
 [8:51 – 9:00]:

One of the 39 signers of the Constitution is in the Senate. He's plotting to help the British take over Spanish territories in the West. And he's the head of it. He's a Tennessee senator. He's plotting to sort of go out and help the British invade, which was a problem because the Spanish were our allies at the time. This is learned by the Adams administration. And the Adams administration, after investigating it in the Cabinet, sends a message to the House and informs them—says, we'd like you to know that a member of the Senate has been plotting to do this thing. And we think the appropriate response is to impeach him right now.

This is weird in a way, because the Senate has the power to expel him—which they do—but the House nonetheless brings articles of impeachment and impeaches him. The Senate schedules a trial, plans it, all the stuff, and then they wind up dismissing the charges before it's over on the ground that they lack jurisdiction.

But there were two possible reasons they lacked jurisdiction. They might lack jurisdiction because he's a senator and not an officer of the United States, which is what the Constitution says. And therefore the appropriate thing is not impeachment, but expulsion—which they do. That's one ground. And I think that's the ground that we've largely assumed is the reason they say we have no jurisdiction.

The other claim that was floated in the Senate is: we have no jurisdiction because he had already been expelled. And once he's expelled, he's no longer a senator, and therefore the Senate can't go forward with an impeachment proceeding.

Now, if it was the latter—if it was because he was already out of the chamber—then that would suggest very early on, the Fifth Congress decides we can't do anything about an officer that's already left government. I don't think that's the precedent that's established.

Savannah Eccles Johnston
 [10:50 – 10:52]:

No. They assume it's issue number one.

Matthew Brogdon
 [10:52 – 10:57]:

Right. So we've been dealing with this, though, sort of repeatedly. It's not—

Savannah Eccles Johnston
 [10:57 – 11:56]:

But now we have two cases that have clarified that you can be out of office. So this is the first big hurdle that we have to figure out. I guess not the first, we're gonna talk about this in this episode. And the second is kind of a bigger, broader issue, which is: what qualifies as a high crime and misdemeanor?

So you can be impeached and convicted for treason, bribery, high crimes and misdemeanors. And we spoke about this a little bit in the last episode. How does misdemeanor relate to the good behavior standard for judges, but how does it apply to presidents?

And we really begin to see this come into play in the Johnson administration. So Johnson is, of course, the vice president under Lincoln. He becomes president, and the radical Republicans at the beginning are really excited about this guy. They think they'll just be able to push him around and get anything they want. But as it turns out, they don't get any of the things they want from him. He keeps on vetoing things like the Freedmen's Bureau, etc.,  And so they actually try three separate times to impeach him.

Matthew Brogdon
 [11:57 – 12:00]:

The Civil Rights Act. Where—the Civil Rights Act. Vetoed the Civil Rights Act.

Savannah Eccles Johnston
 [12:00 – 12:23]:

Right. He's not like a hero of American political history. So they try three separate times to impeach him. The last time, they succeed with 11 articles of impeachment. And here's what it is: it's for violating the Tenure in Office Act. You've got making speeches, quote, with a loud voice, certain intemperate, inflammatory and scandalous harangues with the intent to disgrace Congress.

Matthew Brogdon
  [12:23 – 12:24]:

That's the haranguing article.

Savannah Eccles Johnston
 [12:24 – 13:06]:
 
 
 

That's the haranguing article, among others. This then goes to the Senate, and it becomes a massive public trial. Everyone is tuned into this. He's saved by one vote in the Senate. And the reasoning is very interesting. This is from Senator James Grimes of Iowa. He says, quote, I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable president. Basically, disagreeing with this man politically—him standing in the way of Congress by using his constitutional power to veto—is not a sufficient reason constitutionally to convict a president. The question is, is Senator James Grimes correct?

Matthew Brogdon
 [13:06 – 13:35]:

The argument for it is that the Constitution’s got a way of getting rid of presidents you don’t like politically, and that’s just not reelecting them—which Johnson’s not going to succeed in reelection to the presidency. So if someone’s political decisions are so onerous, especially something like, in this case, the abuse of the veto power—right, he’s vetoing things we think he should sign—well, okay. That sounds like a disagreement between the president and Congress.

Savannah Eccles Johnston
  [13:36 – 13:36]:

Right.

Matthew Brogdon
  [13:36 – 13:48]:

That’s why separation of powers exists. Now, in this case, I think the Senate had a sort of special bone to pick, because they thought, well—but Johnson’s only president because Lincoln got assassinated.

Matthew Brogdon
  [13:48 – 14:07]:

And he was only vice president because Lincoln had to console people from Kentucky and keep them from leaving the Union. So he put a Democrat—right? A southern slaveholding Democrat who was nonetheless a Unionist—as vice president in 1864, to make sure he could win in Kentucky and Maryland.

Savannah Eccles Johnston
 [14:07 – 14:08]:

Right.

Matthew Brogdon
 [14:08 – 14:24]:

Okay. But that rubs Republicans in Congress the wrong way because they’re like, okay, but just because Lincoln had to cater to a small segment of the Republican party to get reelected in 1864, we’re now saddled with a president who never could have won election.

Savannah Eccles Johnston
  [14:24 – 14:25]:
  Right.

Matthew Brogdon
 [14:25 – 15:19]:

Is that sort of a special circumstance? We got to get this guy out of here, get somebody else in office. I think that kind of rationale points to exactly the kind of political nature of this—that is, in fact, you can’t disentangle that judgment from the political circumstances.

Like, is it ordinarily fine to wait until a president’s out of office? You know, just wait a couple of more years and the people will boot him out? Yes. Are there exceptional circumstances where it's—we've got to get him out now, before he does more damage? And for various reasons he’s not really a representative of the people? Can imagine those circumstances.

Would I foreclose the Senate from using that logic to say, No, we’ve got to get him out now, right now? I think that’s fine. But this actually is—you know, every time there’s an impeachment, the parties line up, and whoever wants to keep the president in office advances this argument.

Savannah Eccles Johnston
 [15:19 - 15:20]:
 
 
 

Right.

Matthew Brogdon
  [15:20 - 15:22]:

Can't… can the president just for political reasons.

Savannah Eccles Johnston
 [15:22 - 15:33]:

Right. Which is interesting because in the previous episode we spoke about removing judicial officers and how there is no other method to remove them, and therefore it seems perfectly acceptable to remove them.

Matthew Brogdon
 [15:33 - 15:53]:

The irony there is that would mean we should have a lower bar for judges for impeachment and a higher bar for political officials. Like, intuitively you would think it was the other way around. Don't impeach judges unless it's, you know, like serious lawbreaking. But, you know, the politicians. Well, it's politics. But actually the logic would go the other way around.

Savannah Eccles Johnston
 [15:54 - 15:54]:

Right.

Matthew Brogdon
 [15:54 - 15:58]:
 
 
 

Impeachment's your only recourse with the judge, so the bar needs to be lower.

Savannah Eccles Johnston
 [15:58 - 15:58]:
 Right.

Matthew Brogdon

 [15:58 - 16:02]:
 And with a politician, you've got elections. Yeah, there's elections.

Savannah Eccles Johnston
 [16:02 - 16:11]:

And yet there's the same standard. It's 2/3 in the Senate, majority in the House. It's the same standard. Same. Treason, bribery, high crimes and misdemeanors. It's the exact same thing.

Matthew Brogdon
 [16:12 - 16:18]:

I will point out the first serious mention I know of of impeachment between the President and Congress actually involves George Washington. Washington refused to give some documents to the House of Representatives over the Jay Treaty, which was very controversial. And when he refused it, the House sort of sent him a message and insisted on this. Said, by golly, you've got to give us this information. And Washington, in the first exercise of executive privilege, said, I'm not sending you this info. These are private communications between me and my subordinate who was, you know, negotiating this treaty. There's sensitive stuff in here about our relationship to the British. It could damage foreign policy. You can't have it. And Washington says, if you want it, you've got to show me some constitutional interest that the House has, like some constitutional duty the House has that would entitle them to see this says, I only know of one, and that's impeachment. So Washington was saying, impeach me if you think I can't be trusted and I violated the public interest in negotiating this treaty and sort of sold the farm to the British, then impeach me and we'll have a trial. And if you can convince 2/3 of the Senate that I can't be trusted with the presidency. You can have all this stuff and embarrass the administration in public and kick me out of office.

Savannah Eccles Johnston
 [17:26 - 17:26]:
 Right.

Matthew Brogdon
 [17:27 - 17:37]:
 Now, the interesting thing about that is Washington is assuming that a ground of impeachment would be negotiating a treaty that violated the public interest of the United States.

Savannah Eccles Johnston
 [17:38 - 19:19]:
 Ah, yes, okay. So we keep arguing over this. In each century we seem to argue over this. So we've got Washington saying that is a perfectly reasonable ground for impeachment. You know, I dare you to try it. And of course they don't. You have Johnson being saved by one vote, but by a person saying that's not an acceptable ground for impeachment, though I disagree with him and I find him to be an unacceptable president. And then you fast forward to 2024 where we have this argument again, this time over the potential impeachment of a cabinet secretary, not a president — Alejandro Mayorkas. So he is charged by the House, the Republican-dominated House, with willfully and systematically refusing to comply with federal immigration laws and breaching the public trust by lying to Congress and hindering the House investigation into the Department of Homeland Security. What's interesting is what happens when you get to the Senate. Though of course, the Senate is controlled by Democrats. The Senate refuses to take up this trial on a point of order that the articles of impeachment did not comply with the Constitution because they did not allege conduct that rises to the level of a high crime or misdemeanor. In other words, you disagree with him politically, that's not a sufficient reason for conviction. It's not a high crime or misdemeanor. We keep arguing over this question, and as you said, it's usually a really politically convenient argument. The one side who doesn't want the guy gone says that's not a constitutional basis, and the other side says it doesn't have to be, or it's an extraordinary circumstance or it does rise to the level. But we've never — unlike the "can you impeach former officials" — we've never really settled this question. We're still arguing over it.

Matthew Brogdon
 [19:20 - 19:29]:
 Well, and the Mayorkas case actually raises a really interesting question too, about just who should we be holding accountable with impeachment.

Savannah Eccles Johnston
  [19:29 - 19:29]:
  Right.

Matthew Brogdon
 [19:29 - 19:39]:
 So Mayorkas is a cabinet secretary. He's appointed by the President. The President could fire the Secretary of Homeland Security tomorrow because, you know, he didn't like what he ate for breakfast.

Savannah Eccles Johnston
 [19:39 - 19:39]:

Right.

Matthew Brogdon

[19:39 - 20:26]:
 And so one thing that Congress could look at the President do is say we think one of your cabinet secretaries or some other person who's your direct subordinate is violating the law or handling their office in a way that violates the public interest in some egregious way, you need to fire them. And if you don't, you're responsible for their conduct. This is actually— We've talked about unitary executive theory, and the reason the President can fire people before. The President is constitutionally responsible for whatever his subordinates do, and his recourse if they're mishandling their office is to fire them, get rid of them. In fact, this is with Nixon, right? Nixon didn't do the stuff in Watergate. He didn't break into the Democratic headquarters. The problem was his subordinates were involved in it, and he failed to fire—

Savannah Eccles Johnston
 [20:26 - 20:28]:
 Them for it and helped cover it up.

Matthew Brogdon
 [20:28 - 20:32]:
 He helped cover it up, that's right. But his alternative was he should have fired everybody in the room. And gotten on TV and said, members of my administration, without my knowledge, in a misguided attempt to get me reelected, did this.

Matthew Brogdon
  [20:41 - 20:51]:
 This is not in keeping with my understanding of the office. Everyone involved in this has been fired. I mean, that was the alternative, right? I might still have gotten impeached or booted out of office, I don't know.

Savannah Eccles Johnston
 [20:51 - 20:52]:
  But at least he would have kept  his integrity, and he would have been claiming responsibility for the actions of his subordinates

Matthew Brogdon
  [20:52 - 21:10]:
 So to come back to the Mayorkas case, Congress could have looked at Mayorkas and said, you're mishandling your office. That's the President's responsibility. So if the President doesn't do something about this and change the way you're conducting your office, we're going to impeach him.

Savannah Eccles Johnston
 [21:11 - 21:13]:

Oh, you think they—according to this theory—they've targeted the wrong parts?

Matthew Brogdon
  [21:14 - 21:25]:

If you took seriously the unitary executive theory here and applied it to impeachment, I think you ought to impeach the President that is responsible for that person's conduct, potentially.

Savannah Eccles Johnston
 [21:25 - 21:29]:

So then you're saying there's never any reason to impeach a Cabinet secretary?

Matthew Brogdon
 [21:29 - 21:45]:

Well, here would be the deal. This is an interesting elaboration on this, because what this might resolve into is actually a disagreement between the President and Congress, who would look at the conduct of a Cabinet secretary. And the President says, I think that's perfectly fine. That’s in keeping with my administration's policies.

Matthew Brogdon
 [21:45 - 21:54]:

And Congress looks at it and says, no, that's illegal. We insist the laws be executed. By not executing the laws in this way, you're actually violating them.

Savannah Eccles Johnston
 [21:55 - 21:55]:
 Right.

Matthew Brogdon
 [21:55 - 22:15]:

That counts as high crime and misdemeanor for us. We're going to remove them from office. What I'm asking is, in that case, why not remove the President too? Maybe it ought to be the Cabinet secretary and the President. Because if the President's subordinate is carrying out a policy that you think rises to the level of high crime and misdemeanor, the President's responsible for it too.

Savannah Eccles Johnston
 [22:15 - 22:26]:

See, but this brings us back to the Belknap case, which is: you're not impeaching this guy because he's currently in office and doing bad things. You're impeaching this guy so you can potentially convict him to prevent him from holding future office.

Matthew Brogdon
 [22:26 - 22:26]:
 That's a good point.

Savannah Eccles Johnston
 [22:26 - 22:30]:
 So there is some utility to still targeting Cabinet officials.

Matthew Brogdon
 [22:32 - 23:16]:

But this example also brings up that Congress can utilize the impeachment power to rival the President's control of administration. If Congress says, I know the President told you to do that, but if you do it, we're going to impeach you, it means it's actually a sort of weapon that Congress can use to try to control administration—control the administration of the laws. And alongside funding, I think these are the two mechanisms. Congress can control the flow of money—cut it off or provide more of it, carrot or stick—or they can threaten impeachment against a Cabinet officer. And I guess if the Cabinet officer listened to Congress and went, they're going to impeach me if I don't do this, I'm going to do it—then the President would fire them and say, then I'll put somebody in office with more backbone who will stand up to Congress.

Savannah Eccles Johnston
 [23:16 - 23:51]:

Right. So what we're getting to here in these impeachment episodes is kind of an interesting conclusion, which is, one: that impeachment has developed over time. The Constitution really just gives you bare bones here. It's up to you to interpret it in particular situations. And the second is that it's much, much more political, more situational, and more key to this checks-and-balances system than we think. It's not just like a nuclear option. It's a way for Congress to combat and to get what they want out of both the executive and the judicial departments.

Matthew Brogdon
 [23:51 - 24:31]:

You know, a lot of people would say our line of reasoning here is quite dangerous because it's actually healthy that there's a norm that we reserve sort of the nuclear option of impeachment for cases of clear violation of the law, bribery—really the things that fit in that category of high crimes and misdemeanors. And we're making it very political. We're making it sort of a tool in the separation of powers and the system of checks and balances, the competition between the branches to try to get their way in federal policy. And that's politicizing it to a degree and making it a political weapon rather than a sort of nuclear option that's there for violations of law.

Savannah Eccles Johnston
 [24:31 - 24:36]:

But we have a process for violations of law. It's the judicial system. We don't need a duplicate.

Matthew Brogdon
 [24:36 - 25:29]:
 Oh, but there's an answer to that too, which is that's why the provision in Article One that talks about the process—maybe it'd help to read this real quick, because I don't think we even read this in the last episode—when the Senate's power to try impeachments comes up. It says, "Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States." Then the operative part: "But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." So one of the arguments for this, though—this came up with Clinton and has come up with other presidents too, when we've gone to prosecute them—is, well, the chief law enforcement officer of the United States, who controls the prosecutorial power of the United States, can't really be subject to prosecution—not effectively. And so if you want to prosecute the president for criminal wrongdoing, or maybe even any senior executive branch official who's part of the executive branch and thus the law enforcement portion of the government, the appropriate method, if there is a violation of law, a crime, is to remove them from office, and then the new office holder uses the prosecutorial power to enforce the law against them and prosecute them. So there is no effective legal recourse against a sitting president, a senior executive branch official.

Savannah Eccles Johnston
 [26:00 - 26:01]:
 And this is actually a very…

Matthew Brogdon
 [26:01 - 26:06]:
 So that just makes it an order of operations. Impeach first, then prosecute.

Savannah Eccles Johnston
  [26:06 - 26:09]:

Yeah, which is a very good argument. But again, this can be a yes-and.

Matthew Brogdon
 [26:10 - 26:20]:

And also makes a little bit of nonsense out of the Supreme Court's immunity decisions about criminal immunity for presidents. That's really hard to square with—with—

Savannah Eccles Johnston
 [26:20 - 26:24]:
 The Constitution in this case. Yeah, with the original Constitution.

Savannah Eccles Johnston
 [26:26 - 26:56]:
  But this again raises an interesting point, which is that is one use for impeachment: to remove a president so that he can be successfully criminally charged. But it's certainly not the only use for impeachment because, again, there are different processes ultimately, and there is no arbiter who comes in and says, "This is a correct use of impeachment," and, "This is not a correct use of impeachment," other than Congress—other than the House and ultimately the Senate deciding what does and does not rise to the level of high crimes and misdemeanors.

Matthew Brogdon
 [26:56 - 26:57]:

Yep.

Savannah Eccles Johnston
 [26:58 - 27:05]:

So to conclude on impeachments, how do we understand them going forward?

Matthew Brogdon
 [27:05 - 27:38]:

I think they're a tool in the checks and balances toolbox when it comes to working out disputes between the branches. And it's Congress's ultimate authority to get someone out of office if they've violated the public trust in an egregious way. That's a pretty political thing. But I think the framers actually foresaw that when they took impeachment out of federal jurisdiction of the courts and they moved it over into Congress and said, "Actually, the legislature is going to have to handle this because it's political." I think they were recognizing that fact.

Savannah Eccles Johnston
 [27:38 - 27:47]:

And in a sense, this is in harmony with every other check and balance and every other way the Constitution presents itself. There's gray areas, and you have to solve them politically.

Outro
  [27:49 - 28:30]:

The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life—from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought and Leadership Initiative.