Public Law & Legal Theory
With the charging and trial of President Trump, impeachment has once again assumed a central role in United States constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in American history, we have little understanding of how removing presidents in the middle of a term alters the direction of a constitutional democracy. This article illuminates the appropriate scope and channels of impeachment by examining the law and practice of presidential removal globally. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and South Africa. We then deploy large-n empirical analysis of constitutional texts, linked to data about democratic quality, in order to understand the impact of impeachment on democracy. Contrary to claims tendered in the present political fracas, we show that impeachment is not well conceived as a tool for removing criminals or similar “bad actors” from the presidency. Instead, it is commonly and effectively used as a tool to resolve deep political crises. Moreover, despite much recent concern about the traumatic and destabilizing effects of an impeachment, we do not find that successful removals have a negative impact on the quality of democracy. Our comparative analysis has significant implications for the design and practice of impeachment, especially in the United States. It supports consequentialist grounds for embracing a broader, more political gloss on the famously cryptic phrase “high crimes and misdemeanors,” in contrast to the narrow, criminal standard promoted by President Trump and other presidents. Against settled U.S. understandings, it shows how other institutions, such as courts, can also play a valuable role in increasing the credibility of factual and legal determinations made during impeachment. And it suggests that impeachment works best where, in contrast to U.S. design, a successful removal triggers rapid new elections that can serve as a “hard reboot” for a crisis-ridden political system.
Tom Ginsburg, Aziz Huq & David Landau, "The Uses and Abuses of Presidential Impeachment", Public Law and Legal Theory Working Paper Series, No. 731 (2020).