John K.M. Ohnesorge (University of Wisconsin Law School) has posted Impeachment and the Rule of Law: It's Complicated (Forthcoming in Flinders, Huq, Monaghan, eds., IMPEACHMENT IN A GLOBAL CONTEXT: LAW, POLITICS AND COMPARATIVE PRACTICE (Routledge, 202_)) on SSRN. Here is the abstract:
This chapter explores impeachment and the Rule of Law, and for framing that discussion of several possible approaches come to mind. One could connect impeachment and the Rule of Law by asking what role the Rule of Law plays in impeachment actions, leading naturally to the normative question of what role the Rule of Law should play. A second strategy for connecting impeachment and the Rule of Law asks under what circumstances impeachment can be used to help a society achieve, or perhaps maintain, the Rule of Law, regardless of whether impeachment would be carried out in a Rule of Law manner. A third avenue for approaching impeachment and the Rule of Law draws on the observation that impeachment and the Rule of Law share an important similarity, which is that at the operational level both can raise substantial tensions between short-term and long-term goals, between desires for results in individual cases and concerns for the larger systems within which individual decisions are taken. This chapter proceeds in the order outlined above, discussing in Section II the extent to which the Rule of Law can or should prevail within impeachments. Section III then turns to the question of whether, or under what circumstances, impeachment can be used by a society to maintain the Rule of Law. Finally, Section IV explores the dynamic shared by impeachment and by the Rule of Law which is that they both can raise tensions between outcomes in individual cases and important long-term concerns.
