Further Considerations on Impeachment

Dr. Codevilla, who has written some thought-provoking pieces on American government in the recent past, has a new piece treating the history of the impeachment clause. Just what was it supposed to control?
Connecticut’s Roger Sherman, “contended that the legislature should have power to remove the Executive at pleasure.” Nobody agreed. Virginia’s George Mason expressed the general sentiment when he argued that, while “the fallibility” of electors and “the corruptibility of the man chosen” makes indispensable “some mode of displacing an unfit magistrate,” nevertheless he “opposed decidedly making the Executive the mere creature of the Legislature in violation of the fundamental principle of good government.” New York’s Gouverneur Morris agreed, but was wary, lest impeachment “render the Executive dependent on those who are to impeach.”

Having agreed to provide for the president’s impeachment, the question became how to define the occasions of it so as to prevent impeachment from becoming a mere tool of political control. Everyone agreed that “treason and bribery ” ought to be causes. But George Mason noted that “Treason as defined in the Constitution will not reach many great and dangerous offenses….He movd. to add after “bribery” “or maladministration.” Mr. Gerry seconded him. Virginia’s James Madison objected: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Seeing the sense of that, “Col. Mason withdrew “maladministration” & substituted “other high crimes and misdemeanors”
Dr. Codevilla is worried that partisan politics have rendered this system nonfunctional, as recent Congresses have been unwilling to act to defend Congressional power per se if either house is controlled by the President's party. So in the Clinton administration we saw the House but not the Senate act in impeachment; now the House but not the Senate is suing to try to compel the President to keep his oath regarding 'the faithful execution of the law.' If Congress won't act to defend Congressional powers, but pursues partisan outcomes first and the Constitutional separation of powers second (if at all), the controls no longer function.

It turns out that Alexander Hamilton was worried about this at the time:
Alexander Hamilton warned that [nonpartisanship] would be in short supply. In Federalist 65 he wrote: “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.” That is because the “subjects of its jurisdiction…are of a nature which may with peculiar propriety be denominated POLITICAL… The prosecution of them…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.”
So it seems to have proven.

By the way, what constitutes "bribery," that offense which the Founders coupled with treason as a clear-cut case? The President spends very much of his time flying from one fundraiser to another.


Ymar Sakar said...

The 2008 Hussein campaign manually disabled fraud locks on the credit card transactions from oversea donors.

This gets into the foreign potentate issue more.

Ymar Sakar said...

There is also various intel rumours going around that the State Department intentionally pulled our Ambass'. security detail (Blackwater perhaps), so that the embassy could be attacked, an American kidnapped, and a prisoner exchange arranged (or weapons exchange).

When that failed due to 2 oath keepers from the secret CIA complex near there (running guns to Qatar and then AQ true blue), they had to go to the old American defector option, trading 5 Taliban commanders for him.

Cass said...

I think bribery involves a more explicit quid pro quo than fundraising would provide. But you've written several meaty posts today, Grim.

I am looking forward to reading them when I get done with work! Something to look forward to :)

Ymar Sakar said...

It's surprising how much the Hussein Os and Clintons have in the bank account, for dirt poor peasants.

Or perhaps "surprising" is the wrong word.

Grim said...

I think bribery involves a more explicit quid pro quo than fundraising would provide.

The US Code is pretty broad in its language. It says that the gift can be "direct or indirect" and can be "anything of value" as long as it is intended to influence "any official act" (including "to do or to omit to do any act in violation of the lawful duty of such official").

Now there's a lot of giving of things of value -- money, chiefly -- intended to influence official acts. The gifts may be indirect, but the law includes that. And a lot of the specific official acts these folks want done are omissions of lawful duties, e.g., campaign donations by groups that wanted the President to elect not to defend the Defense of Marriage Act in court.

So I think the weasel word must be the adjective "corruptly." These gifts aren't being given corruptly! Why, some of our best citizens are involved!

Ymar Sakar said...

It's the old British saying. What do people call treason when it prospers?