We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
CONVICTION, NULLIFICATION, AND THE LIMITS OF IMPEACHMENT AS POLITICS.
- Authors
Broughton, J. Richard
- Abstract
The election of Donald Trump to the American presidency has brought with it controversies that have prompted serious talk about presidential impeachment. Even if an impeachment of President Trump never comes to fruition, the national conversation about it has revived the need for serious study of presidential impeachment-the kind of serious study that took place twenty years ago during and after President Clinton's impeachment. This Article contributes to the revival of academic literature on this subject by exploring the institutional role of the Senate as a court of impeachment. It gives attention to the Constitution's mandate that the Senate decide whether the impeached Party should be "convicted"-a term that is used elsewhere in the Constitution and always in the criminal law context. Combined with other attributes of impeachment found in the constitutional text and historical understandings, the requirement of a "conviction" before removal helps give impeachment a criminal justice character that mitigates, though does not destroy, its political character. Accordingly, this Article argues that the political character of impeachment is often overstated. The Senate is transformed into something different than a conventional political or legislative body. This Article therefore considers various approaches to deciding whether to convict, including one that views the Senator simply as finder of factual guilt, one that combines a finding of factual guilt with a legal finding that the offense is constitutionally impeachable, and another approach that separates the normative value of removal from the factual and legal conclusions. The Article further argues that considerations of raw partisanship or electoral politics as a basis for acquittal are akin to a form of nullification similar to that found in the criminal law. In light of the quasi-criminal-quasi-judicial role that the Senate plays as a court of impeachment, the importance of presidential responsibility, and the need to protect the legitimacy of the Senate and impeachment as a constitutional defense mechanism, the Senate should be just as wary of partisan or politically-motivated acquittals, whether overt or covert, as it should be of partisan or politically-motivated convictions.
- Subjects
UNITED States; IMPEACHMENTS; NULLIFICATION (States' rights); CRIMINAL law; TRUMP, Donald, 1946-; STRICKLAND v. Washington (Supreme Court case)
- Publication
Case Western Reserve Law Review, 2017, Vol 68, Issue 2, p275
- ISSN
0008-7262
- Publication type
Article