When Joe Biden shockingly, and yet somehow unsurprisingly, pardoned his son, Hunter Biden, in December 2024, many called for the outgoing president’s impeachment. Writer Jonah Goldberg contended, for instance, that if that welcome development were to come, “Congress would assert its primacy, and send a clear signal that the sort of corrupt self-dealing that both Democrats and Republicans claim to loathe is no longer acceptable.”
Indeed, the Founding Fathers appeared to have just such a contingency in mind when they devised the Constitution’s impeachment clause. As James Madison reflected at the 1788 convention at which Virginia ratified our founding document, “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”
But why punish an ailing, heartbroken man on his way out of office? Wouldn’t impeaching Biden simply worsen the partisan divide? Do such proceedings comport with the original public meaning of the Constitution?
To these and related questions, Yale Law School’s Keith Whittington devotes his absorbing and persuasive new book. “The impeachment power,” he writes, “reflects not only the worries that the founding generation had when imagining how republican politics might work in a new nation, but also our persistent fears about how government power can be abused and how those abuses might be remedied.”
Whittington traces the origins of the impeachment power to 17th-century England, where frequent disputes between Parliament and King James I led to a revival of a little-used medieval practice. John Pym, a leader in the House of Commons, crowed that “the High Court of Parliament is the great eye of the kingdom to find out offenses and punish them.” But this enthusiasm quickly passed, largely because parliamentary systems such as England’s possessed the power to dissolve governments through alternate means.
Not so in the emerging American regime, founded as it was on a strict separation of powers. The Constitution assigns the House of Representatives responsibility for the “power of impeachment” over “high crimes and misdemeanors” and the Senate the duty to conduct the impeachment trial as a high court, presided over ceremonially by the chief justice of the Supreme Court when the president is impeached, and to convict and remove the wrongdoer from office.
Concerns about these powers abounded from the outset of the republic. In 1797, then-Vice President Thomas Jefferson presided over the first-ever impeachment against Tennessee Sen. William Blount, who allegedly conspired to help Britain usurp Florida and Louisiana from Spain. Blount’s lawyer argued that the Senate’s trial was definitionally partisan and, therefore, inherently unfair. “Trial by jury, like every human institution, is subject to abuse,” he asserted, but “infinitely less so than trial by impeachment,” where “the demon of faction most frequently extends his scepter over numerous bodies of men.” The Senate ultimately dismissed Blount’s case for lack of jurisdiction.
As the House and Senate are political bodies, so too is the impeachment process intrinsically political. Ordinary rules of due process do not apply, and senators may freely discuss their views before, during, and after the trial. The 1868 impeachment of then-President Andrew Johnson unleashed ferocious partisan vitriol, as did the subsequent impeachment proceedings against Presidents Richard Nixon, Bill Clinton, and Donald Trump. But partisan doesn’t necessarily mean unfair, and members of Congress must strive to conduct equitable impeachment trials that allow the accused to make their case.
Indeed, more often than not, impeachments have played out appropriately. In 1804, New Hampshire District Judge John Pickering became the first federal officer to be convicted and removed from office. Seven more federal judges have subsequently faced the same fate, generally for reasons of severe corruption or exceptionally poor moral character. “The impeachment power can be an effective tool for articulating, establishing, preserving, and protecting constitutional norms,” Whittington posits.
But what constitutes “high crimes and misdemeanors”? This question troubled the founders and has bewildered commentators ever since, with some, such as the celebrated 19th-century Supreme Court Justice Joseph Story, declaring that “no one has yet been bold enough to assert that the power of impeachment is limited to offences positively defined in the statute-book of the union,” and others, including the always-controversial defense lawyer and professor Alan Dershowitz, proposing exactly that: a specific list of impeachable offenses.
At the Constitutional Convention, the original language encompassed “malpractice or neglect of duty” and “maladministration,” but those suggestions gave way to the more restrictive language now employed. Whittington acknowledges that the impeachment clause’s scope “should not be construed so broadly as to encompass ordinary political and policy disputes.” But he also conjures a parade of horribles — colossally poor judgment leading to a catastrophic war, extreme dereliction of duty in which a president ignores his duties and takes up permanent residence in another country, or literal incitement of a race riot — that would warrant disqualification.
The House itself has developed a practice manual that describes historical impeachments as covering abusing or exceeding the lawful powers of the office, behaving in a manner grossly incompatible with the office, and using the power of the office for an improper purpose or personal gain. “Impeachments require judgment,” Whittington asserts. “They are not the mechanical application of constitutional law.” He reckons that in both the Clinton and Trump impeachments, the Senate prosecutors failed adequately to articulate the substantive constitutional principles at stake, although he disagrees vigorously with those proceedings’ most extreme opponents, who slandered them as attempted coups.
Along the way, Whittington addresses interesting, if somewhat tangential questions, such as whether impeachment is consummated upon the vote of the House or transmission of articles to the Senate (the latter), whether the House must formally vote to authorize impeachment proceedings (no), whether former federal officials may be impeached (yes, but only in extraordinary circumstances), whether the Senate may simply refuse to conduct a trial (technically yes, but doing so would constitute a gravely damaging precedent), and whether the Supreme Court would ever intervene (extremely unlikely).
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Ultimately, Whittington offers sound and convincing guidance for would-be practitioners of the impeachment clause. “Congress owes a judicial officer nothing,” he argues, “but Congress owes the American people cool deliberation rather than heated passion before intruding itself into the workings of the other branches of government.”
So should Congress have impeached Biden for pardoning his son? Would a strong disavowal of Biden’s abuse of the clemency power outweigh the possibility of further fanning the flames of partisan warfare? On The Remnant Podcast with Jonah Goldberg, Whittington himself called the pardon “an abuse of authority” absolutely worthy of impeachment while also acknowledging, appropriately, that Biden and his Democratic Party are already suffering political consequences short of impeachment that adequately convey communal disgust and opprobrium. It’s a measured and thoughtful approach, like the rest of his excellent book.
Michael M. Rosen is an attorney and writer in Israel and a nonresident senior fellow at the American Enterprise Institute