“I’m breathing, I’m available Thursday morning at 11:15, I can use Google Search, and I can wear plaid.” That’s how I described my credentials to take part in a live podcast about the history of impeachment, alongside two actual political scientists. My Bethel colleagues Chris Moore and Andy Bramsen had planned a special episode of their now-long-running podcast, Election Shock Therapy, to coincide with the week of Constitution Day. But alas, their colleague who actually teaches our course on the Constitution, Mitch Krumm, was unavailable. So in I stepped…
You can listen to the results here. I certainly learned a lot as Andy and Chris talked about everything from the politics of impeachment to what that procedure looks like in other countries. My principal job was to explain the origin story for this passage in the U.S. Constitution:
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. (Art. II, sect. 4)
I taught myself enough to talk semi-knowledgeably about roots in English politics and law (there was actually a major impeachment trial stretching out in Parliament at the same time as our Constitutional Convention) and then a couple of early examples of how Congress tried to implement this procedure. But mostly, I wanted to point people to some actual resources: for example, an ongoing series of posts on the topic by conservative legal scholar Michael Stokes Paulsen, who believes that we have generally misunderstood what was meant to be a “formidable power” in our system of checks and balances; and a 1974 report on “Constitutional Grounds for Presidential impeachment,” written by the House Judiciary Committee during the Watergate Crisis and then republished online by the Washington Post during the impeachment of Pres. Bill Clinton.
Of course, I was most tickled to have an excuse to read something by our “ten-dollar founding father.” Among the dozens of papers Alexander Hamilton contributed to The Federalist, numbers 65 and 66 deal most directly with impeachment. In the podcast, Andy, Chris, and I talked about several aspects of Hamilton’s argument, which Paulsen points out “does not treat the meaning of the Constitution’s impeachment standard as a matter of dispute or controversy” and is mostly meant to defend the choice of the Senate rather than the Supreme Court as rendering the actual verdict on an impeached president or other official. (The vast majority of federal impeachments have involved judges.) But here’s the key passage from Federalist 65:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Of course, in the event that the public trust has suffered “abuse or violation,” there are other non-violent remedies here that stop short of the military coups and civil wars that have plagued other democracies: leaving it to the electorate to vote out those unworthy of such positions; giving those voters (as my own state’s constitution does but the U.S. Constitution does not) the power to recall officials in certain situations; legislative censure. But if we’re at the level of the chief executive (or a justice or judge with a lifetime appointment), impeachment seems to be the final check.
A.Ham. had the foresight to recognize that impeachment proceedings would necessarily inflame the very factionalism that the framers hoped to avoid and so should be “an object not more to be desired than difficult to be obtained,” but he also thought the possibility of impeachment was absolutely essential to his vision of a powerful executive branch. Here it seemed that the chief problem with the English tradition is that there was no constitutional means for removing the monarch, only his or her officers. (One solution, of course, was to dispense with an executive altogether, which proved to be a fatal flaw of the Articles of Confederation.) So while impeachment may have appealed to some framers who wanted to keep the executive weaker than the legislature, Hamilton actually believed that impeachment allowed the executive to be both powerful and responsible.
In fact, the former was impossible without the latter: citizens in a democratic republic cannot be expected to entrust vast power to a president if she or he cannot expect to be held responsible for the use of that power and the abuse of that trust. I’ll leave it to you to decide what that means in 2018.