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.