Berks Barrister Summer 2018 - 28

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Book Review
Impeachment,
A Citizen's Guide
By ROSS SUNSTEIN

Reviewed by Joel A. Ready, Esquire

T

he best type of mental exercise is the isolation of one
specific point of weakness for a focused workout. In that
respect, Impeachment, A Citizen's Guide by Ross Sunstein
is a great book. While constitutional law has been improvidently
relegated to specialists within the legal field, Sunstein emphasizes
that impeachment is one portion of the Constitution which was
explicitly left to We The People as the ultimate cudgel to keep
government powers in check.
Sunstein's background includes advice to both the House
and White House during the Clinton impeachment, as well
as yeoman's service writing memos on the 25th Amendment
during the fretful time surrounding President Reagan's nearassassination. In short, Sunstein knows a thing or two about the
Constitution's rules regarding presidential succession.
Threats of impeachment have been loudly threatened against
every President for at least the last 40 years, but Sunstein
emphasizes impeachment's extreme nature. "The impeachment
mechanism isn't a way for political losers to overturn the outcome
of legitimate elections," Sunstein tells us. Impeachment is a safety
measure to ensure against monarchy, a Break Glass in Case of
True Emergency protection, a "body blow to the republic." It
threatens to change the balance of power within the federal
government each time it is actually invoked.
Sunstein tackles the lack of inherent clarity in the phrase
"High Crimes and Misdemeanors," doing so from various
28 | Berks Barrister

viewpoints on constitutional interpretation. He argues fairly
persuasively that, regardless of one's views of interpretation,
this phrase refers to violations of uniquely public trust rather
than actual crimes. This would mean that the President (and
other "Officers of the United States" and Judges, by the way)
may be impeached without proof of an actual crime, and also
that proof of an actual crime would often not be enough, on its
own, to justify impeachment. In Sunstein's view, impeachment
should be reserved for situations where a candidate obtains the
Presidency by actual electoral fraud, or where the President, as
founder George Mason feared, pardons crimes which he ordered
committed. In a sense, impeachment is a flexible tool to stop the
feedback loop of systematic or egregious abuse of power.
The book's examination of the unique procedural mechanics
called into play by impeachment is thoroughly engaging.
Borrowing on the English tradition, American impeachment is
akin to indictment, which is why the House threshold is a mere
majority. Upon impeachment, the Senate sits as a court, "trying"
the case, while the Chief Justice-the man in our system meant
to be above all politics-is called upon to play procedural and
evidentiary umpire. While the Chief Justice has been a "pretty
minor player" in the two impeachment trials in American
history (Chief Justice Chase presided over President Johnson's
impeachment trial, and Rehnquist over Clinton's), the very
presence of the Chief Justice of the United States has attracted


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Berks Barrister Summer 2018

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