The One-Year Itch

I received an email from Jimmy, our resident Einstein in high school. After reading the first installment on the impeachment primer, he wanted to know if the United States Constitution also contained a one-year prohibition on a succeeding impeachment complaint.

There is no similar provision in the U.S. Constitution. In fact, the United States Congress tried to impeach a sitting president twice within a span of one year.

Andrew Johnson was a Democratic senator from Tennessee, a state that seceded from the Union at the start of the American Civil War. He was the only Southern senator who did not resign from his seat. In 1864, forming a unity ticket, the Republican Party chose him to be Abraham Lincoln's running mate and won. 5 days after General Robert E. Lee surrendered, Pres. Lincoln was assassinated and he succeeded Honest Abe to the presidency.

As a Democrat from the South, he had ideological clashes with the Republicans that preferred a different policy in integrating the former Confederate States to the Union. As a result, the Republican Congress investigated Johnson for various impeachable offenses. In November of 1867, the House Judiciary Committee voted to impeach him by a vote of 5-4. However, the full House refused to impeach him.

But the Radical Republicans were determined to remove him from office. In August 1867, President Johnson demanded the resignation of Edwin Stanton, Secretary of War, an ally of the Radical Republicans. Mr. Stanton refused on the ground that the Tenure of Office Act required Senate approval for his resignation. President Johnson later suspended him but Congress rejected the suspension.

On 21 February 21, 1868, President Johnson removed Mr. Stanton from office. 3 days later, the full House impeached Johnson by a vote of 126-47. He was the first US president to be impeached. But by one vote, President Johnson was dramatically acquitted in the Senate impeachment trial. Thus, in a span of one year, the House tried to impeach a president twice.

The Johnson impeachment trial resulted to numerous analyses on the effect on the American presidency and the abuse of Congress' impeachment power. However, none seemed to propose a prohibition period to avoid the Johnson conundrum.

In drafting the 1987 Constitution, the Committee on Accountability of Public Officers chaired by Mr. Christian Monsod, a proponent of the Truth Commission, proposed a one-year ban on succeeding impeachment proceedings. This was a novel provision not found in both the 1935 and the 1973 Constitutions. Its purpose was to protect the official concerned from further harassment.

While the one-year constitutional ban is laudable, it has, however, spawned a number of unintended consequences.

First, a frivolous impeachment complaint can be filed by a presidential cohort and later dismissed by the president's men in Congress, thereby preventing the filing of a more substantive impeachment complaint immediately.

Second, assuming the president has committed acts constituting betrayal of public trust, bribery or abuse of official power, the one-year ban will allow him to continue in office with impunity, raid the national treasury or install cronies in positions of influence and power. This runs counter to the main purpose of impeachment which is to immediately remove the president and to prevent the further subversion of the constitutional order.

Third, with the Answer filed by the President, Congress will be constrained to rely heavily on the Rules of Court to address technical issues. As a result, the impeachment process will not only be delayed but the fight becomes one of form than of substance, making it alien and less intelligible to the people whose frustrations may well up and lead to the streets once more.

Without the one-year ban, the Lozano complaint would have been thrown into the dung heap. The more substantial Zamora complaint sans technical issues could have been filed by Monday and the fight would have been on.

The president need not worry about harassment especially if there is no factual basis to the suit. The business of government can continue since the president can delegate her defense to the lawyers and to her allies in Congress. If government cannot continue, what then is the purpose of constitutional succession? It is not a fair-weather mechanism. It is precisely in place to address dark times.

But the one-year ban makes lethal the continued stay of a corrupt president in power. And the more the president stays in power, the more probable an extra-constitutional grab can occur. And that is a political limbo our country must not be allowed to suffer. To paraphrase the High Priest, it is better to impeach one man than for the whole nation to perish.

Truly, the road to constitutional hell is paved with good intentions.