Yale Bulletin
and Calendar

October 26-November 2, 1998Volume 27, Number 10

'Impeachment' revisited: Yale Press re-issues
Professor Black's 1974 treatise

In 1974, when the nation was in the throes of the Watergate scandal, and the media and Congress were abuzz with discussions of the impeachment of President Richard M. Nixon, Yale University Press rushed into print a thin book by Yale law professor Charles L. Black Jr.

The 75-page book, titled "Impeachment: A Handbook," was immediately hailed by constitutional scholars and others for its informative, easy-to-read assessment of the impeachment process. Time magazine said of the work, "Black's timely volume clearly and lucidly covers everything from what constitutes 'high crimes and misdemeanors' to the scope of Executive privilege. ... The measure of his book's achievement is that it tells the reader not what to think but what to think about."

Nearly a quarter-century later, the Yale Press has once again responded to government crisis in Washington, D.C. by speedily re-issuing Black's book, which he wrote to inform citizens of the issues involved in cases of presidential impeachment. While Black -- who is currently adjunct professor of law at Columbia University -- has not changed a single world of his original book, the just-released edition includes a new foreword by Yale constitutional scholar Akhil Reed Amar, the Southmayd Professor of Law, who writes, "the wise words of this small yet great book are as apt today as they were a quarter-century ago."

In "Impeachment," Black addresses the questions of what constitutes an impeachable offense, the meaning of "high crimes and misdemeanors," the roles and responsibilities of the House and the Senate, and whether the president has any privileges in impeachment proceedings, as well as whether there should be any judicial review of the Senate's verdict.

On the issue of "high crimes and misdemeanors," Black argues that no attempt should be made to interpret what James Madison had in mind when he agreed to that phrase, but rather, American citizens should ask "what misdeeds do we today -- here and now -- deem so gross and malignant so as to warrant undoing a national election?"

Presidential offenses that would warrant impeachment, says Black, must meet several criteria: they must be "extremely serious," they must in some way "corrupt or subvert the political and governmental process," and they have to be "plainly wrong in and of themselves to a person of honor, or to a good citizen, regardless of words in the statute books."

Black offers in the book a number of examples of impeachable and nonimpeachable offenses. The latter include acts that, while illegal, would not be cause for the removal of a president from office. One example of these would be transporting a woman across state lines "for what is quaintly called an 'immoral purpose,'" the legal scholar says, as would helping a White House intern to hide marijuana. Income-tax fraud, however, would be an impeachable offense because it "uses office for corrupt gain" and undermines both government and citizens' confidence in it, according to Black. On the issue of obstruction of justice, he says that the misdeed must be examined in the context of whether it "has to do with public affairs and the political system," as opposed to an act such as helping a friend conceal a misdeed.

"[T]he obstruction of justice is ordinarily a wrong as well as a crime, and when it occurs in connection with government matters, and when its perpetrator is the person principally charged with taking care that the laws be faithfully executed, there must come a point at which excuses fail," Black wrote.

Any impeachment inquiry must be entirely nonpartisan, and the president cannot appeal the Senate's verdict in the courts, Black emphasizes in his book. He also argues that in the early stages of an investigation (before the Senate takes up the matter of impeachment), raw evidence that has not yet been deemed credible or relevant should not be disclosed to the public. And while an impeachment trial is "public business," says Black, he believes that there should be no live national television or radio coverage of the proceedings. "Nothing solid is added to public information by making a continuing spectacle of a trial," he wrote.

-- By Susan Gonzalez





T