Founding Defenders A Matter of Impeachment

The United States Constitution authorizes impeachment of a president, a federal judge, or another federal official for certain crimes, violations, or other improprieties. However, some of the terms by which an official is held to account are somewhat vague.

Article II, 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.”

The Origin
The Constitutional Convention in Philadelphia was in its final days, the draft of the United States’ supreme law nearly complete. George Mason, the author of Virginia’ Declaration of Rights was more than a little concerned over recent developments of the convention. The 61-year-old Mason had come to fear the powerful new government his colleagues were creating, could allow a president to become a tyrant as oppressive as George III.

So on September 8, 1787, Mason rose to ask his fellow delegates a historically crucial question. Why, Mason asked, were treason and bribery the only grounds in the draft Constitution for impeaching the President? He went on to warn that the charge of treason, wouldn’t include “attempts to subvert the Constitution.”

Depiction of the impeachment trial of President Andrew Johnson in 1868. First U.S. President to be impeached by Congress, Chief Justice Salmon P. Chase presiding.

Following many debates between George Mason, James Madison, and fellow Virginian and delegate, Edmund Randolph the basis by which to protect the Republic from a dangerous executive power was finally established. While the three Virginians had different views on the Constitution, A Matter of Impeachment they were surprisingly congruent when it came to defining the standards by which impeachment should be carried out.

The Infamous Sixteen
Since 1797 the U.S. House of Representatives has impeached sixteen federal officials. These include a justice of the Supreme Court, two presidents, a senator, eleven federal judges, a cabinet member, and a Senator. Of those tried, the Senate has convicted and removed seven, all of whom were judges. Not included in this list are the officials who have resigned rather than face impeachment, most notably, President Richard Millhouse Nixon in 1974.

High Crimes and Misdemeanors
Treason and bribery are transparent enough in their definitions, but the phrase “high Crimes and Misdemeanors.” seems a little vague and perhaps even political in nature. So how in a Republic of laws and co-equal branches of government under a system of checks and balances did such a concept develop in early America? James Madison objected to the term “maladministration” a term which had already been decided on because it was so vague that it would allow impeachment for any reason at all, so it was deleted and replaced by the phrase “other high crimes and misdemeanors” a term based in English law dating back to 1386.

Abuse of Power
The convention adopted this new language with little discussion. Most of the framers were well familiar with the phrase. The English Parliament had used “high crimes and misdemeanors” as one of their principle grounds to impeach public officials of the crown since the fourteenth century. Those officials who were accused of “high crimes and misdemeanors” were charged with offenses as varied as misappropriating government funds, not spending money allocated by Parliament. Other potential charges included promoting themselves ahead of more deserving candidates, disobeying an order from Parliament, threatening a grand jury, granting warrants without cause, arresting a man to keep him from running for Parliament, bribery, and more. Some of these charges were criminal in nature, some were not. The one common denominator is that the official had somehow abused the power of his office and was unfit to serve.

The Intent
The adoption of “high crimes and misdemeanors” illustrates that the Framers meant for the phrase to signify only conduct that severely damaged the Republic and compromised the President’s ability to perform his duties. It is not intended to suggest a crime or a legal definition, it is purely political in nature and was intentionally left open-ended for that purpose. Primarily because the Founders realized that if the phrase was given a less broad interpretation, it could allow a rogue Congress to influence and control the President and the courts thereby undermining the system of checks and balances.

Congressional Authority
The U.S. Constitution provides the means for impeaching the President, vice president, federal judges, or other government officials. The impeachment process is initiated in the U.S. House of Representatives and includes the following procedure: The House Judiciary Committee holds hearings to determine whether the official in question should be removed from office. Then, if necessary, prepares articles of impeachment. These are the charges against the President, judge, or another federal official. If a simple majority of the congressional committee votes to approve the articles, it is then referred to the full House where they then debate and vote. There are no provisions for bi-partisan participation, which means an impeachment could be carried out solely on a politically partisan vote.

If a simple majority of the U.S. House votes to impeach the official on an article, then the official must stand trial in the United States Senate.

For the President or official to be removed from office, two-thirds of the Senate must vote to convict. Again, this could be accomplished on a completely politically partisan vote, thereby potentially making the process of impeachment a purely political one. Upon conviction in the Senate, the President or official is automatically removed from office. The Senate then decides whether to allow that official from ever holding governmental office again.

President Richard M. Nixon

In 1974, the same year President Richard Nixon stepped down from the presidency amid a drawn-out political impeachment trial, Yale Law School professor Charles L. Black published an influential book entitled, Impeachment: A Handbook. Black agreed that impeachment is a grave step that should be taken most cautiously. Impeaching a president overturns an election. His research led him to the conclusion that a president should be impeached only for “serious assaults on the integrity of the processes of government,” or for “such crimes as would so stain a president as to make his continuance in office dangerous to public order.”

After nearly 14 hours of debate, the House of Representatives approves two articles of impeachment against
President Bill Clinton, charging him with lying under oath to a federal grand jury and obstructing justice.
Clinton, the second president in American history to be impeached, vowed to finish his term.

In 1970 then Congressman and future President Gerald Ford, who would later succeed Richard Nixon stated regarding the concept of “High crimes and misdemeanors.” “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” He further stated that “there are few fixed principles among the handful of precedents.” Ford clearly understood the political nature of “reversing” the results of a Presidential election through the politically partisan process of impeachment.

In a way, Ford was right. If the House votes articles of impeachment, it cannot be challenged in court since the Constitution gives the House complete authority over the impeachment process. So if the House of Representatives votes in favor of articles of impeachment for whatever reason, that official is impeached and must stand trial in the Senate. But, Ford is also clearly mistaken. The framers of the Constitution did not intend to grant Congress absolute power to remove judges and executive officials at their whim. The Founders wanted Congress to use its impeachment power only under extreme and limited circumstances when an elected official had committed “bribery, treason, or other high crimes and misdemeanors.” The separation of powers depends on Congress exercising political restraint while limiting impeachments to these cases, and these cases only.

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