Fractured Into Factions? What The Founders Feared About Impeachment
As the Founding Fathers were drafting the U.S. Constitution, they were explicitly trying to avoid a repeat of the situation they had just fought a war to free themselves from — a ruler with unchecked power.
While they wrote a bare minimum about impeachment in the country's essential governing document, other writings from the time provide rich insights about their intentions.
In Federalist No. 69, Alexander Hamilton described impeachment essentially as a release valve from another "crisis of a national revolution." He and other Founders grappled with how best to execute such a check, and eventually they settled on the system we have today.
Even more than 230 years ago, they were eerily prescient in fearing how the impeachment process could play out: beset by partisanship and broken down by factions. Every impeachment proceeding so far — from Andrew Johnson to Bill Clinton and now President Trump — was split along those lines.
Why was impeachment so important to the Founders?
To understand the Founders' rationale for impeachment first requires an examination of their feelings about the presidency. Hamilton (yes, that one) actually wanted a more robust chief executive, but he did realize there needed to be some check on their power. That's why he would argue in The Federalist Papers for why impeachment should be included in the Constitution.
According to preeminent Hamilton biographer Ron Chernow, Hamilton was trying to protect the country from someone with demagogic tendencies. "From the outset, Hamilton feared an unholy trinity of traits in a future president — ambition, avarice and vanity," Chernow wrote last month in The Washington Post.
He points to one of Hamilton's writings in 1792 where the Treasury secretary warns about someone who might exhibit those inclinations, and Chernow argues that it sounds a lot like the current occupant of the Oval Office:
"When a man unprincipled in private life[,] desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind.'"
Setting the standards for impeachment
The first two impeachable offenses laid out in the Constitution are very specific. Treason is betraying the United States. Bribery is being swayed to do something or to act a certain way because you are being given a thing of value or asking someone else to.
The latter is one that Democrats in the House now appear to be finessing an argument for.
"Bribery, first of all, as the Founders understood bribery, it was not as we understand it in law today. It was much broader," House Intelligence Committee Chairman Adam Schiff, D-Calif., told NPR in November. "It connoted the breach of the public trust in a way where you're offering official acts for some personal or political reason, not in the nation's interest."
The more ambiguous term of "high crimes and misdemeanors" appears to give lawmakers more leeway — or ammunition. But as Harvard Business School historian Nancy Koehn told member station WGBH in a discussion about the Founders and impeachment last month, a "high crime" isn't some kind of really, really bad crime. It means a crime against the country.
The Founders, Koehn said, had an "imputed faith ... in the seriousness of purpose and commitment that the people that came after them in Congress would have" when it came to weighing impeachment. And that includes an understanding that even though something "might not be a prosecutable offense in a court of law, it can be discerned as something that is against the American nation." The intent of that wording was to provide a standard for both legislators and the public, as opposed to "whatever the political wind decides."
Searching for an impartial arbiter
As the National Constitution Center details, differing proposals at the Constitutional Convention dealt with impeachment in different ways — the Virginia Plan wanted impeachment to be handled by the federal judiciary, while the New Jersey Plan only had a removal process if a majority of state governors petitioned for it.
It was Hamilton's compromise, modeled after the British system of removing public officials, that was largely adopted. That led to the lower chamber acting as a grand jury in deciding an indictment and then the upper chamber acting as the trial jury.
There was some push to have the Supreme Court be the final arbiter in deciding an impeachment conviction. Hamilton stridently pushed back at that idea, arguing that only senators could be independent enough to thoroughly judge a president, instead of justices that may have been appointed by that same president under accusation.
"Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?" Hamilton wrote in Federalist No. 65. "What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers."
But what if the Senate turned partisan?
That's exactly what has happened in every impeachment that went to a Senate trial and is very much happening now ahead of a potential impeachment.
While the Democrat-controlled House requires only a simple majority to impeach, the Senate requires a two-thirds majority to convict, or 67 votes. Republicans hold a 53-47 edge, and only a few GOP senators show any sign of being willing to cross over and vote to convict Trump, such as Utah Sen. Mitt Romney or Alaska Sen. Lisa Murkowski. Others, like Ohio Sen. Rob Portman, have said that while it's improper for an American president to court foreign assistance for a political campaign, it's not impeachable and ultimately voters should decide Trump's fate in the 2020 election.
There were reasons the Founders at first hoped that senators might be more independent-minded. It wasn't until the 17th Amendment was ratified in 1913 that senators were directly elected by the people.
Now, in a hyperpartisan environment, reelection could often be the motivating factor, with little incentive to cross sides. In today's Republican Party, going against Trump can mean signing your political death sentence.
Hamilton outlined those fears about how partisan the process would become in Federalist No. 65. Because impeachable violations are by definition political, as they're "done immediately to the society itself," Hamilton wrote that the charges:
"... 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."
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