Impeachment has been a topical subject in recent months in America. Here, Mac Guffey considers the history of impeachment in American, including how it was designed by America’s Founding Fathers.
The impeachment trial of the 17th President of the USA, Andrew Johnson, in 1868.
Historian David Dewitt wrote this rather vivid description of America’s impeachment process:
The ponderous two-handed engine of impeachment, designed to be kept in cryptic darkness until some crisis of the nation's life cried out for interposition, was being dragged into open day to crush a formidable political antagonist a few months before the appointed time when the people might get rid of him altogether. [1]
It was a passage from his 1903 publication regarding the impeachment trial of President Andrew Johnson - Abraham Lincoln's successor.
But it's true - "impeachment" is one of those terms in the lexicon of American government and politics that, until some crisis of the nation's life, as Dewitt so dramatically put it, remains in the political closet.
But the nature of this process, once this ‘engine’ is dragged forth, makes it essential for a free people to understand the process, and most importantly, the potential effect being unleashed.
It is, and always should be, the people’s weapon of last resort.
Definition
First, the word impeach has two distinct meanings. One sub-definition means “to challenge the integrity of or the validity of”. The other sub-definition refers to a practice that originated in England - “to charge before a competent tribunal with misconduct in office”. [2]
Alexander Hamilton even defined impeachment as “a method of NATIONAL INQUEST into the conduct of public men.” [3]
To be clear, impeachment is not the end result of a Constitutional process as we often erroneously use it. It’s merely the beginning – to challenge the integrity of a public official’s behavior. The rest remains to be determined.
However, this process has a gravely inherent flaw the Founders did NOT expect - politics.
Who and how to impeach - the Constitutional guidelines
This process of removing an elected or appointed official from office is structured by the Constitution exactly like the trials we see in all the courtroom dramas on T.V. It begins with a formal investigation to determine if there is enough evidence of wrongdoing to elicit a charge, formal charges, and a trial before a jury. If there is a conviction, the Constitution even provides the penalty guidelines for the judge. Each specific role in this drama is assigned to a particular branch of the government, with the exception of the defense counsel. (The defendant provides his/her own.)
The Founding Fathers designed and defined this process as a severely restricted power for the Legislative branch to useif and when the actions of an official in the Executive or Judicial branches appear to meet the Founders’ narrow definition.
Here’s how they structured it.
Who is eligible for this process and on what grounds? (Article 2, Section 4)
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.
After the Richard Nixon - Watergate fiasco (1972-1974), the staff of the Impeachment Inquiry in the House of Representatives attempted to add a bit more clarity with this rather relative guideline as to the types of misconduct that may constitute grounds for impeachment.
1. Improperly exceeding or abusing the powers of the office;
2. Behavior incompatible with the function and purpose of the office; and
3. Misusing the office for an improper purpose or for personal gain. [4]
It’s still vague, and it’s by no means complete, but it was a start.
Who serves as the Prosecutor and the Grand Jury? (Article 1, Section 2, Clause 5)
The House of Representatives… shall have the sole Power of Impeachment.
Who acts as the Jury? (Article 1, Section 3, Clauses 6)
The Senate shall have the sole Power to try all Impeachments… And no Person shall be convicted without the Concurrence of two-thirds of the Members present.
Who sits as the Judge? (Article 1, Section 3, Clause 6) Normally, the President of the Senate (Vice-President) or the President Pro-Tempore (Majority Party Leader) serves as the Judge EXCEPT:
When the President of the United States is tried the Chief Justice shall preside;
If there is a conviction, what are the penalty guidelines? (Article 1, Section 3, Clause 7)
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:
The Founders did not want the government to go beyond this two-phase penalty. They felt that removal and banishment accomplished the role that a government of elected representatives should play in judging whether the actions or integrity of another elected official met the narrow limits of ‘treason, bribery, or high crimes and misdemeanors’.
However, they felt that judging ‘criminal intent’ belonged to the people’s court, so they added this caveat to the end of Clause 7: “but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgement and Punishment, according to Law.”
There’s always a ‘but’
Thomas Jefferson once said that "... In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution...". [4] However, David Dewitt and Alexander Hamilton were more pragmatic than Jefferson.
Writing about the subject of ‘impeachment’ one hundred and fifteen years apart, both men mentioned the politics of it all. Because this process is set in motion by perceived violation(s) of the public trust due to the misconduct of public officials, the prosecution of these officials, as Hamilton put it,
…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. [3]
But, the greatest danger from this power to impeach, Hamilton noted, is not the potential for chaos and disruption. It’s the danger of this process – which is governed by the comparative political strength of the parties in Congress – being misused as a threat to bully or render the Executive and/or Judicial branches subordinate, rather than coveted as the only Constitutional means to determine official misconduct and remove the offender.
The true Guardians of our power to impeach
Abraham Lincoln once identified the greatest danger to our Republic as a country that elects its own leaders and the greatest bulwark against that danger.
Invited to give a talk one cold January evening in 1836, Lincoln chose as his topic, The Perpetuation of Our Political Institutions. Near the end of his talk, he posed a rhetorical question: “Is it unreasonable then to expect that some man possessed of…ambition sufficient to push it to its utmost stretch, will at some time, spring up among us?” His answer to the question also contained the solution to this potential threat.
And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.
We, the People – are both the threat and the answer to the perpetuation of our political institutions. Respect for one another and for our Constitution and laws require a thorough understanding of our impeachment process, and a demand for its judicious use.
We are its true Guardians.
What do you think about the impeachment process? Let us know below.
References
[1] Dewitt, David (1903) "The Impeachment Trial of Andrew Johnson" New York City, NY: Macmillan Company, p. 405.
[2] Merriam-Webster Online Dictionary @ https://www.merriam-webster.com/dictionary/impeach
[3] Hamilton, Alexander (1788). The Federalist Papers: No. 65from The Avalon Project, The Lillian Goldman Law Library, Yale Law School @ https://avalon.law.yale.edu/18th_century/fed65.asp
[4] Boyd, Julian P., Charles T. Cullen, John Catanzariti, Barbara B. Oberg, et al, eds. (1950-) The Papers of Thomas Jefferson- 33 vols. Princeton, New Jersey: Princeton University Press. v.30:pp.529-556.
[4] Staff of the Impeachment Inquiry (1974). Committee on the Judiciary, House of Representatives, Constitutional Grounds for Presidential Impeachment, 93rd Conf. 2nd Sess. (Feb. 1974).
[5] Roy P. Basler, et al.eds. (1953). The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, N.J.: Rutgers University Press. v.1: pp.109-116.
