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"High Crimes and Misdemeanors"

Impeachment: The Constitutional Problems by Raoul Berger Harvard University Press, 345 pp., $14.95

By Geoffrey D. Garin

FOR ALL THE GLEE that talk of impeaching President Nixon excites in people, impeachment remains a serious business. The unsuccessful attempt to remove Andrew Johnson from office in 1868 had such grave consequences for American political life in the last half of the 19th century that the use of impeachment to redress presidential misconduct fell into general disrepute. Presidential impeachment became so moot a point during the 100 years after the Johnson affair that scholars failed to give the subject any extensive consideration.

Now that Watergate has again made impeachment a viable alternative to suffering through four years of presidential misrule and misconduct, we are lucky that so able a man as Raoul Berger has taken it upon himself to allow impeachment a full and serious scholarly study. His judgments, and the sound reasoning that lies behind them, will be of the utmost value to those charged with the responsibility of deciding whether to impeach the President--if and when that decision becomes necessary.

Berger, Warren Senior Fellow in American Legal History at the Law School, is concerned primarily with the constitutional and legal issues surrounding impeachment. His book, which was begun just when Nixon became president, does not examine the partisan aspects of impeachment because Berger thinks them illegitimate concerns. Instead, it views impeachment as a constitutional device to be used in appropriate circumstances and to be avoided when its propriety is in doubt.

This approach to his subject forces Berger to specify the conditions under which impeachment is a proper tool of redress. He derives these specifications from the Constitution and from Anglo-American legal history.

ARTICLE two, section four of the United States Constitution says that "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." It is Berger's contention that all of the constitutional causes for impeachment--treason, bribery and high crimes and misdemeanors--have a specific and limitable content, and that impeachment is appropriate only when an official is guilty of one of these constitutional offenses.

The problem which earlier legal historians have faced, and which they have failed to solve, is in defining the content of the impeachable offenses. Treason and bribery are fairly well defined as they stand; the real trouble lies in determining the content of "high crimes and misdemeanors."

Many people have claimed that high crimes and misdemeanors can mean whatever Congress wants it to mean. Berger attacks this position in his book. He reasons that just as the framers of the Constitution did not want the president to possess excessive power over Congress, they did not want to give Congress too great a power over the executive. Consequently, the framers would not allow Congress the leeway to define the legal conditions for impeachment however it might please.

In Berger's search for the meaning of "high crimes and misdemeanors," he argues that the phrase actually means high crimes and high misdemeanors. The thrust of this argument is that Congress cannot impeach the president for just any indictable crimes, but only for crimes of "great offense." Using history as his guide, Berger comes to the conclusion that "high crimes and misdemeanors" was originally intended to include more than indictable criminal conduct. Berger contends that the term encompasses violations of the Constitution and "unfitness to hold public office."

In his attempt to show that impeachment for "political" rather than "constitutional" reasons is both unwarranted and harmful, Berger examines the impeachment of Andrew Johnson. Johnson was impeached because of a disagreement with Congress over Reconstruction policy rather than because he was guilty of unlawful conduct. Berger demonstrates that this resulted in an unfair trial, and he concludes that the ill-conceived impeachment of Johnson, which is described as a blatant misuse of congressional power, made impeachment an unpopular means of dealing with a president who is guilty of midconduct in office.

Berger does not tell the story of the Johnson case to show that impeachment is too dangerous a tool to be used at all, but only to show that it is a tool to be used carefully. Throughout his book he maintains that the power to impeach is a necessary one, both to insure proper administration of office and to guarantee that the executive will not overstep his constitutional authority.

It is worthwhile noting in this regard that by Berger's criteria, the president could be constitutionally impeached if he continued to bomb Cambodia after the Congress passed a law forbidding him to do so.

IMPEACHMENT does not confine itself to the subject of presidential removal. It devotes lengthy chapters to impeachment of legislative and judicial officers, alternatives to impeachment and to the question of judicial review of impeachments.

Berger's treatment of judicial review is probably the most controversial section in the book. Because impeachment involves questions of constitutional intent, Berger concludes that it must be subject to judicial review since only the Supreme Court can be the final arbiter of the Constitution.

Impeachment: The Constitutional Problems is a serious book written by an eminently reasonable and qualified scholar who has a profound faith in the wisdom of the Constitution. While the book is technical--and this is particularly true of the first chapter, which considers early English precedents--it is so sensible with a basic knowledge of the Constitution and American history can profit from a reading of it.

Berger's study is one of the rare works that is relevant without trying to be. Berger and his publishers are lucky that the book's release comes at a time when impeachment is a matter of general concern. There is no doubt that the Watergate revelations will help the sales of the book. If the Watergate probers continue to turn up evidence implicating President Nixon in the scandal, the book will be as much an aid in resolving the confusions about what to do with a criminal president as the scandal is an aid to the book.

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