by David E. Kyvig. Lawrence KS: University Press of Kansas, 2008. 554pp. Cloth. $34.95. ISBN: 9780700615810.
Reviewed by Bruce E. Altschuler, Department of Political Science, SUNY Oswego. Email: altschul [at] oswego.edu.
Historian David Kyvig believes that since 1960, impeachment has been used so often that this period can be termed “the age of impeachment.” In the preface to THE AGE OF IMPEACHMENT, he writes that the book’s goals are to explain this frequent use and evaluate how well this constitutional mechanism serves the country today.
Before 1960 there were only eleven Senate impeachment trials with four lower court judges convicted and removed from office and another four resigning prior to a verdict. Because the two most prominent trials resulted in the acquittals of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868, impeachment became a largely unused weapon. However, every two-term president since 1960 “heard his impeachment seriously proposed.” Richard Nixon and Bill Clinton faced impeachment proceedings while Reagan “narrowly escaped a similar fate” (p.5). Demands for the impeachment of eight federal judges during that period made Congress more comfortable with the process, as three were removed from office and another three (Kyvig includes Justice Fortas) resigned while their impeachment was under consideration.
The bulk of the book consists of case studies of all proposed impeachments since 1960. Kyvig begins with the efforts of conservative groups such as the John Birch Society (JBS) to impeach Chief Justice Earl Warren which, despite their apparent eccentricity, he believes “turned out in retrospect to be the opening shot in a volley of impeachment initiatives over the next four decades” (p.38). This seems quite an overstatement, as no impeachment resolutions were introduced in the House, not even by the two representatives who belonged to the JBS. Nor was there a truly serious impeachment effort prior to that against President Nixon. The chapter itself is more the story of the rise and demise of the JBS, devoting considerable space to relations between the organization and such conservative luminaries as William F.Buckley and Barry Goldwater. Kyvig concludes that the impeachment campaign had a “negligible effect” on Warren (p.58) and later terms it “comparatively feeble” (p.63). Kyvig seems unable to resist a good story even if it is of limited relevance to his subject. Another of many examples is his chapter on the resignation of Spiro Agnew which includes discussions of impoundment, the Pentagon Papers and Watergate.
Although Kyvig interviewed some of the participants and made use of manuscript collections, the case studies depend largely on published sources. He relates these narratives well with a good ear for the telling anecdote and the interesting [*726] quote but very few revelations. I enjoyed his tales of how both Senator John Kennedy, in a letter to a constituent, and Representative Gerald Ford, during his efforts to impeach Justice Douglas, showed a lack of knowledge of the process. I also had not realized that the first person John Doar attempted to recruit for the House Judiciary Committee staff investigating Richard Nixon was Bill Clinton who declined because he planned to run for Congress. Instead, he recommended Hillary Rodham who was drinking coffee in his kitchen at the time.
Unfortunately, the studies of presidential impeachments provide little analysis of the crucial legal issues or major court decisions which are given brief summaries with barely a comment. When Kyvig does comment, he provides little or no evidence to support his opinions. For example, when Spiro Agnew argued that a sitting vice-president could not be indicted on a criminal charge, Kyvig suggests that the constitutional basis of Solicitor General Robert Bork’s brief claiming that, unlike a trial of a president, one of a vice-president would not hamper the functioning of the executive branch “was far from unassailable” without elaborating (p.136). The events and court results prior to the “Saturday Night Massacre” are described without a discussion of the arguments over executive privilege or an analysis of the decisions themselves. Kyvig lays out the Judiciary Committee staff’s conclusions defining impeachable offenses and the reply by Nixon’s attorney, James St. Clair, but his only analysis is a sentence about “the almost desperate tone” of St. Clair’s argument underscoring its weakness” (p.157). The intriguing suggestion made by John Dean in an interview with Kyvig that Nixon might have been acquitted in a Senate trial is merely stated without evaluation. The chapter on Clinton’s impeachment briefly mentions the possible alternative of censure, listing its use against Presidents Jackson, Tyler and Polk yet, surprisingly in a book written by a historian, does not discuss any of these precedents. Since the Senate elected in 1836 rescinded its predecessor’s censure of Jackson, such a discussion would have highlighted the defects of censure.
Kyvig also needs to make better use of polls. He compares a July 1973 Gallup Poll showing that 24% of those interviewed believed that Nixon should be impeached and removed from office with a June 2005 Zogby survey showing 42% agreeing that Bush should be impeached if he had not told the truth about why the United States invaded Iraq to show how much impeachment had been legitimized in the interim period as well as the increase in partisan division. Instead, the difference in these polls is most interesting for the changes in phrasing which show that those who take polls had learned something. The Zogby question asked whether, if certain facts were proven, Bush should be impeached and then tried. In contrast, Gallup asked, without suggesting what evidence or offenses were charged or proven, whether Nixon should be both impeached and removed from office. No mention was made of a Senate trial. The logical answer would be to take no position without waiting for a more complete presentation of the evidence.
Since much less is known about judicial than presidential impeachments, LPBR readers are likely to find these chapters [*727] more interesting. Kyvig’s argument that, because the judicial impeachments of the 1980s were driven by the need to strengthen public trust in government, the results showed that the process was more political than judicial, is well supported. In each case, after the original criminal charges proved an overreach, prosecutors continued with lesser ones. When three grand juries failed to indict Judge Harry Claiborne on bribery charges, a fourth was convened. Although it did bring charges, the trial resulted in a hung jury. Only after all charges except for two counts of income tax evasion were dropped was Claiborne convicted. Based on the testimony of witnesses whose penalties were sharply reduced, Walter Nixon was convicted of perjury despite being acquitted of the underlying offense, accepting an illegal gratuity, and not being charged for covering up the crime for which he supposedly took the gratuity. As his lawyer told the Senate, Nixon was “accused of having lied to conceal his innocence” (p.283). Despite his acquittal on all charges, Alcee Hastings was impeached by the House and convicted by the Senate. Subsequently he achieved a measure of redemption by winning a seat in the House of Representatives where he voted against the impeachment of President Clinton.
Kyvig concludes that impeachment is now far more often discussed than prior to 1960, even when there is no actual attempt to impeach. He cites conservative criticism of the court rulings in the Terry Schiavo case even though he concedes it was primarily “political posturing” with no impeachment resolutions even introduced (p.365). How much of such invocations of impeachment is mere rhetoric and how much is a serious threat is worth additional analysis.
Theodore Lowi (1997) has argued that impeachment is part of a larger process of “politics by other means” in which a lack of party competition causes candidates to worry more about legal prosecution and personal disgrace than debate over policy stands. Benjamin Ginsberg and Martin Shefter (1999) continue this by examining Republican attempts in 1996 to use the investigative powers of Congress to prevent President Clinton from pursuing his legislative agenda. At that time, they had little interest in impeaching him. Ginsberg and Shefter believe that, as the media have shown increased interest in exposing political scandal, the result has been “a major new weapon of political combat: revelation, investigation, and prosecution,” first developed as a weapon against Nixon but later adopted by the Republicans as well.
Although he dates the origins of “politics by other means” to the movement to impeach Earl Warren, Kyvig agrees with the conclusion that this changed process has failed to arrest the dramatic expansion of presidential power. However, for Lowi, Ginsberg and Shefter, impeachment is but a small part of “politics by other means.” Kyvig’s book does not really refute this. He ends with a brief evaluation of alternatives to the existing impeachment process, concluding that all have even greater flaws. [*728]
Ginsberg, Benjamin and Martin Shefter. 1999. POLITICS BY OTHER MEANS: POLITICIANS, PROSECUTORS, AND THE PRESS FROM WATERGATE TO WHITEWATER, Revised and Updated Edition. New York: W. W. Norton.
Lowi, Theodore. 1997. “President v. Congress: What the two-party duopoly has done to American separation of powers.” CASE WESTERN LAW REVIEW 47 (Summer): 1219-1237.
© Copyright 2008 by the author, Bruce E. Altschuler.