• Impeachment and Its Discontents

    Author(s):
    Brian Kalt
    Date:
    2022
    Group(s):
    MSU Law Faculty Repository
    Subject(s):
    Law
    Item Type:
    Article
    Permanent URL:
    https://doi.org/10.17613/4j6j-zw63
    Abstract:
    What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.” I am not a fan of failed or futile presidential impeachments; I do not “believe” in them. Nevertheless, I have seen them done three times now. All of this is, in other words, not the sort of purely theoretical construct in which law professors often traffic. As an actual phenomenon – a tangible political fact, not an abstract legal one – failed and futile impeachments need to be analyzed and not just dismissed out of hand. This Article will do that: criticizing failed and futile presidential impeachments, but finding defensible principles at their core and suggesting that censure offers a better way to vindicate those principles. Part II will argue that a presidential impeachment resulting in an acquittal might serve some valid purposes. At best, however, these purposes are greatly diminished by a failed impeachment, and, at worst, they might be disserved entirely. Part III will consider what has driven the House of Representatives in recent decades to become so much more willing to pursue presidential impeachments that are unlikely to succeed. Part IV will conclude by suggesting that the House’s impulses are better served by censure than by futile impeachment.
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    Journal article    
    Status:
    Published
    Last Updated:
    1 month ago
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