Constitution Daily

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What the Founders thought about impeachment and the President

May 18, 2017 by Scott Bomboy

 

One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials through the impeachment process. But what did the Founders who crafted that language think about the process and its overall intention?

George MasonThe need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early at the 1787 convention in Philadelphia. Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the Impeachment Clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention.

Today, impeachment remains as a rarely used process to potentially remove the “President, Vice President and all civil Officers of the United States” if Congress finds them guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

In all, 19 federal officials have been brought up on impeachment charges by the House of Representatives since 1789, with eight people convicted after a Senate trial. Two Presidents – Andrew Johnson and Bill Clinton – faced Senate trials but were not found guilty by a two-thirds majority of the Senate.

The threat of impeachment remains a power check, at least in theory, against the abuse of power, and it is sometimes discussed in times of political controversy, as well as in cases where there is a clear issue with personal conduct in office. Of the eight persons impeached and convicted in Congress, all were judges who faced charges including perjury, tax evasion, bribery, and in one case, supporting the Confederacy.

At the 1787 convention, delegate Edmund Randolph quickly brought up the subject as part of his Virginia Plan.  William Patterson’s rival New Jersey Plan had its own impeachment clause. National Constitution Center scholar-in-residence Michael Gerhardt explained the differences in his book, “The Federal Impeachment Process: A Constitutional and Historical Analysis.”

“The Virginia Plan provided for removal of officers upon impeachment and conviction by the federal judiciary, while the New Jersey Plan neglected to include impeachment by the lower house and provided for removal only through application of a majority of the state governors,” he said. Alexander Hamilton then introduced his own plan based on the British legal system, where governors, Senators and other officials could be removed for “mal- and corrupt conduct” after being charged by the lower house and tried by the upper house.

As the convention debate unfolded, not everyone favored impeachment, especially for the chief executive, or President. Gouverneur Morris and Charles Pinckney were both concerned about impeaching a President. Morris feared that a President would feel beholden to the branch of government that could impeach him, leading the President to become “a tool of a faction.”

They were in the minority. James Madison saw the Impeachment Clause as "indispensable . . . for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate." Elbridge Gerry stated that impeachment was needed as a check against presidential abuse of power. “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them,” he argued. George Mason then refuted Morris’ argument that only the President’s assistants should face the impeachment process. “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?” he asked.

Benjamin Franklin also said, in his unique way, the impeachment was preferable to the more traditional way of removing a monarch in Europe – by death.

Eventually, Morris changed his thinking on the issue of executive impeachment, believing that the President should act more like a Prime Minister, and 8 of the 10 delegations voting approved the Impeachment Clause’s addition to the draft Constitution. Into August and September 1787, the process became more defined. The Supreme Court was removed as a possible trial venue; a two-thirds vote requirement was required for conviction in the Senate; and George Mason added the words “high crimes and misdemeanors,” a phrase borrowed from English impeachment proceedings.

In Federalist 65, Hamilton made an extended argument for the states to ratify a Constitution with an Impeachment Clause. The Founders and some of Hamilton’s audience were familiar with the concept from English law and several state constitutions had impeachment provisions for “maladministration,” a term Madison objected to and which caused Mason to add “high crimes and misdemeanors” to the clause as its replacement.

Hamilton argued strongly for the Senate and not the Supreme Court as the place where impeachment charges would be considered at trial related to “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,” Hamilton added.

The “high crimes and misdemeanors” language remains controversial today. In two essays in our Interactive Constitution, Neil J. Kinkopf and Keith E. Whittington looked at the Founder’s vision.

“The Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts,” said Kinkopf.

“When the Founders wanted to ensure accountability, they mostly relied on elections and the voters to hold government officials responsible for their actions,” said Whittington. “But what might fall into the category of ‘other high Crimes and Misdemeanors’ was still quite unclear.”

Scott Bomboy is the editor in chief of the National Constitution Center.

 

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