Why Don't We Impeach Officials More?

Honestly asking...

Editor’s Note: I am have been pretty under the weather the past two days, and my brain feels at once swollen and made of cotton balls. This may be the ramblings of a madman who just bought a 43 year old belt sander. Still, I need to write this up before it gets away from me, or I convalesce enough to realize it is a bad idea.

Well, that was fast. The Disinformation Governance Board (DGB) was scrapped before I really had time to write anything about it more detailed than “Wow, how does anyone think this is a good idea?” CNN claims the board “drew condemnation from GOP lawmakers and right-wing media” due to Nina Jankowicz herself. Because to CNN, nothing about a “Disinformation Governance Board” itself could be questionable, much less deserving condemnation, in and of itself, I guess. I am not surprised, just disappointed.

My thought, back when I believed this business was going to last more than a month, was that I would love to be running for congress this year on a platform of abolishing the DGB and, I don’t know, let’s not CRT, stop COVIDing, FDA/CDC delenda est, stop inflation, audit the Fed, whatever. There has been so many ridiculous things in the past two years that the DGB is basically the icing on the crazy cake. No matter how you slice it, you have a lot of options.

Primarily, however, my thought was that impeaching Jankowicz, Homeland Security Secretary Alejandro Mayorkas, and maybe anyone else who was involved in okaying the obviously anti-Constitutional business would be a very good move. Throw in Fauci, and you’d have a pretty popular platform with a lot of voters, but impeachment has a lot going for it beyond just getting elected.

1. Impeachment is actually one of the enumerated powers of Congress. There’s a lot to be said for actually following the Constitution when dealing with legal matters!

2. Officials who are removed from office via the impeachment process suffer “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The revolving door suddenly becomes exit only.

3. Power moves from the executive branch and the bureaucracy back to the Congress. As we have seen under Trump, the executive does not have a great deal of control over the bureaucracy, but someone ought to have some control over the regulatory state.

Those are some strong virtues! Number two and three, together, are I think the most important to changing the dynamics of government. A great deal of authority rests largely uncontrolled in the hands of bureaucrats, some appointed and serving at the pleasure of the president, some careermen who have climbed the ladder without any oversight from the citizenry. In some sense these agencies are controlled by the president through his cabinet and secretaries, but many of the officials will remain long after the president has left office. A congress that makes it clear that impeachment is on the table creates a tension between obeying the president (or their own self interest) and not doing something so egregious as to piss off representatives. This is particularly desirable considering how often the opposition party wins the House and Senate after a presidential election.

This incentive to stay within the bounds of acceptability to both parties comes with some serious teeth. Even deep state bureaucrat who has lived his entire career in the bureaucracy and seen hundreds of elected officials come and go must respect a hard end to his career in government. The standard path is to get a midtier position in some agency, then switch over to the industry overseen by the agency when you are ousted by a new administration or just get a better offer, only to return to government at some higher level; rinse and repeat. Impeachment ends that revolving door, exiling the impeached from government service forever. Even the move to industry itself is possibly cut off, if one benefit of offering former officials a sinecure is their cooperation after they go back to government.

So, why don’t we see this sort of congressional flex more often? It wasn’t too uncommon in the first century and a half, but between 1936 and 1986, nothing¹. Even then, only judges and presidents have been impeached since Secretary of War Belknap in 1876. Why no bureaucrats? No agency heads?

One might argue that impeachment is for statutory crimes, but it is really pretty wide open:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Historically, “abuse of power” has been a very common reason for impeachment, along with misuse of office and being drunk at the bench². Abuse of power is a pretty broad description, nowhere defined in the Constitution, and easily could include bureaucratic behavior that goes outside of those Congress thinks they allocated or consider constitutional. As others have pointed out, impeachment is more a political than a legal process.

Maybe impeachment is just a pain to get going, so if you are not going to impeach a president or judge it isn’t worth while? Maybe, but those two don’t seem to be of a kind. Two judges have been impeached fairly recently, 2009 and 2010, but does anyone remember that? That suggests to me that non-presidential impeachments are pretty low key affairs, getting done without much ado. Perhaps judges being awful are more likely to get congressional dander up than agency heads but… really?

Now, appointed federal judges do serve for life, so perhaps the important aspect is to remove those who can’t be removed by the president simply firing them. Yet, again, the Trump administration demonstrated how difficult it is to fire bureaucrats, and certainly the president doesn’t always get to firing people that desperately need it. Why not take action to get bureaucrats removed more aggressively? It seems like a strong move when your party controls the House and Senate, and even removing a scant handful would serve as quite an example.

So, yea, I am kind of wondering why the Congress has pretty much just ignored this option. Of course I wonder why they gave up the power to write budgets or declare war, or any of a dozen other powers they sort of shrugged off onto the president. To some extent power and responsibility go together, and apparently Congress does not like responsibility.

What do you guys think? Am I missing something, or is Congress just so allergic to responsibility for power that giving a few bureaucrats the ax is entirely off the table?

1. Nixon, the president not the judge (what are the chances?) didn’t get impeached because he resigned first, but fair enough, he might count.

2. Judges getting drunk and presiding over court was apparently quite a problem in the old days.