Tuesday, April 6, 2010

Chafetz on Impeachment and Assassination

Josh Chafetz, Cornell Law School, has posted Impeachment and Assassination, which is forthcoming in Minnesota Law Review 95 (2010). Here’s the abstract:
In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly—and rightly—condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal—impeachment—would be preferable.

This Article for the first time takes Franklin’s comments seriously, viewing impeachment as closely tied to assassination. The Article first unpacks Franklin’s statement by analyzing what were, for Franklin and his contemporaries, two paradigm cases of just killings of chief magistrates: those of Julius Caesar and Charles I. From these cases, it draws an understanding of the substantive law of presidential impeachment—or, put differently, it argues that we ought to understand impeachable offenses as (what might otherwise be) assassinable offenses. The Constitution’s innovation in executive removal lay in pairing this older substantive law with new procedures meant to domesticate it and to mitigate the drawbacks associated with political murder.

The Article then traces the interaction of these substantive and procedural features at two key moments for the American presidency: the assassination of Abraham Lincoln followed closely by the impeachment of Andrew Johnson, and the impeachment of Bill Clinton. The Article then concludes by briefly discussing the impeachability of Richard Nixon.
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