The Future of Democracy Newsletter: January 2020

When is impeachment justified?

As we all know, President Donald Trump was impeached by the House of Representatives in December and is being tried in the Senate to determine if he should be removed from office.

At our January meeting, we reviewed the perspectives of the US founders about impeachment, but we started with the Farewell Address of George Washington, which was delivered to Congress before he left office in March, 1796. Many people are aware of Washington’s skill as a general, but not of his eloquence as a speaker and as an inspiration for his generation and those to come. Washington was perhaps the only US President solely devoted to the principles on which the country was founded and not beholden to any political party. He refused a third term to ensure that the country would remain a nation of principles and laws, and not centered on a single ruler or dynasty. During his presidency, political parties already were in place starting in 1792 — the Democratic Republicans under Jefferson and Madison, and the Federalists under Hamilton. Washington implored the nation to above all remain attached to “the love of liberty with every ligament of your hearts.” He minded Americans to work together to preserve their freedoms as “You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.” Above all, he considered it imperative to put principles first in “carefully guarding and preserving the union of the whole.” He was particularly concerned about partisanship and wary of political parties: “Let me warn you in the most solemn manner against the baneful effects of party generally. … A fire not to be quenched, it demands a uniform vigilance to prevent it bursting into a flame, lest, instead of warming, it should consume.” I think we can agree that, for the most part, this warning has been ignored throughout our history with the all-consuming presence of political parties rather than devotion to the principles of our founding “common cause” — continuing right up to our own time.

The idea of impeachment only came up as the Constitutional Convention was winding down in 1787. George Mason of Virginia was concerned that the president could become a tyrant and that there would be no way to remove him from office under the provisions in the current draft that only included “treason and bribery.” What about, he asked, “attempts to subvert the Constitution?” His solution, which was widely debated, was to add the phrase “other high crimes and misdemeanors.” Others thought that the impeachment power could become a tool for weakening the presidency. Governor Morris of Pennsylvania and others feared that the threat of impeachment would make “the Executive dependent on those who are to impeach.” Other fears were that the president would bribe electors to gain office or become subservient to a foreign power. The idea of impeachment for abuse of power was borrowed from English law with which the founders, having been English citizens, were familiar. Ultimately the provision was passed 8 votes to 2.

The Federalist Papers were written by three founders — Alexander Hamilton, James Madison, and John Jay — in support of the Constitution which was written in 1787 and being sent to the colonies for ratification. In Federalist No. 65, Hamilton stated that breaking a law is not necessarily an adequate reason for impeachment, but some acts may lead to justification for impeachment, whether violation of the law or not, such as “abuse or violation of the public trust.” Hamilton questioned whether impeachment trials might be conducted by bodies other than the Senate, such as the Supreme Court or an independent body. The language agreed upon by the founders, after much debate, was: “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.” (Article II, Sec 4) Hamilton argued that despite the impreciseness of the procedure, the Constitution should be ratified.

Only three presidents have, to date, been impeached, but none have so far been removed from office. Andrew Johnson was impeached in 1868 for obstructing reconstruction efforts after the Civil War by Congress "to protect the rights and safety of black Southerners.” (Madison and Mason on Impeachment, Erik Trickey, smithsonian.com, October 2, 2017) Bill Clinton was impeached in 1988 for lying to Congress about his alleged affairs. Richard Nixon resigned before a likely impeachment in 1974 for involvement in the Watergate scandal. And now Donald Trump has been impeached for Abuse of Power and Obstruction of Congress in December, 2019.

Stay tuned.

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