The Federal Impeachment Process

A Constitutional and Historical Analysis, Third Edition

Michael J. Gerhardt

• Publisher: University of Chicago Press
• Year: 2019
• Print ISBN: 9780226554839
• eBook ISBN: 9780226554976
• Topic: Politics & International Relations
• Subtopic: North American History
• Index: Politics & International Relations

As President Trump and Congressional Democrats battle over the findings of the Mueller report, talk of impeachment is in the air. But what are the grounds for impeaching a sitting president? Who is subject to impeachment? Is impeachment effective as a safeguard against presidential misconduct? What challenges does today's highly partisan political climate pose to the impeachment process, and what, if any, meaningful alternatives are there for handling presidential misconduct? 

For more than twenty years, The Federal Impeachment Process has served as the most complete analysis of the constitutional and legal issues raised in every impeachment proceeding in American history. Impeachment, Michael J. Gerhardt shows, is an inherently political process designed to expose and remedy political crimes—serious breaches of duty or injuries to the Republic. Subject neither to judicial review nor to presidential veto, it is a unique congressional power that involves both political and constitutional considerations, including the gravity of the offense charged, the harm to the constitutional order, and the link between an official's misconduct and duties. For this third edition, Gerhardt updates the book to cover cases since President Clinton, as well as recent scholarly debates. He discusses the issues arising from the possible impeachment of Donald Trump, including whether a sitting president may be investigated, prosecuted, and convicted for criminal misconduct or whether impeachment and conviction in Congress is the only way to sanction a sitting president; what the "Emoluments Clause" means and whether it might provide the basis for the removal of the president; whether gross incompetence may serve as the basis for impeachment; and the extent to which federal conflicts of interest laws apply to the president and other high ranking officials.

Significantly updated, this book will remain the standard work on the federal impeachment process for years to come.

PART I

THE HISTORICAL ORIGINS OF THE FEDERAL IMPEACHMENT PROCESS

This part examines the most important debates about the federal impeachment process in the federal constitutional and state ratification conventions. This inquiry sheds significant light on the inherently political nature and unique aspects of the federal impeachment power. The framers and ratifiers chose Congress as the federal impeachment authority because they believed that the special power to sanction executive and judicial misconduct should be exercised by an electorally accountable body that was not subject to the control of those whom it was attempting to discipline. The framers and ratifiers further hoped that in making impeachment decisions, the House of Representatives and especially the Senate would be concerned not so much with achieving short-term political advantage but with the need to convict or vindicate the official involved and the long-term ramifications for the Constitution, the balance of power, and the public good.

Chapter One

THE IMPEACHMENT DEBATES IN THE CONSTITUTIONAL CONVENTION

Debates about impeachment in the United States are older than the U.S. Constitution. Prior to the drafting and ratification of the federal Constitution, there were vast differences in state constitutional provisions regarding the officials who would be subject to, the timing of, grounds for, and the authorities empowered to conduct or try impeachments.1 These state procedures were in turn influenced by the English experience with impeachment from the thirteenth through the eighteenth centuries.2

Many scholars have closely examined the history of impeachment prior to 1787.3 Although these studies are not all without problems,4 they are of limited interest to contemporary students of impeachment, because the framers established a special impeachment mechanism in the Constitution that reflected their intention to differentiate the newly proposed federal impeachment process from the English and state experiences with impeachment prior to 1787. This chapter focuses on the major discussions of impeachment among the delegates at the constitutional convention, while the next chapter examines the ratification debates about impeachment. These chapters show the basic concerns of the framers’ generation regarding impeachment. Subsequent chapters use other historical material to illuminate the fundamental aspects of the federal impeachment process, particularly with respect to impeachment issues of contemporary concern.

To be sure, the debates over impeachment at the constitutional convention must be put into perspective. The convention delegates recognized that their views on the meaning of the Constitution mattered less than the opinions of the ratifiers.5 The convention delegates took this position because they believed that the Constitution would take effect only if the American people accepted it and that the public’s only chance to review and debate the proposed Constitution occurred during ratification. To prevent their own views from dominating ratification, the delegates decided shortly after the beginning of the constitutional convention to conduct their deliberations in secret.6 The delegates decided not to call the “yeas” and “nays” by delegate name in order to encourage each other to speak candidly and to avoid playing to the press.7 Instead, the votes were recorded only by states. To make news leaks more difficult, delegates were allowed to inspect the journal of the proceedings but were not permitted to make a copy of any of its entries. The delegates also agreed that “nothing spoken in the House be printed, or otherwise published or communicated without leave.”8 Moreover, to prevent any unauthorized entry, the convention placed sentries both inside and outside its meeting place.9

These precautions ensured that the people who publicly discussed and ratified the new Constitution had no access to any of the notes on the constitutional convention. Indeed, the man who took the most copious notes of debates at the constitutional convention, James Madison, did not publish his notes until many years after the ratification of the Constitution.10 Madison objected for several reasons to relying on the convention debates to guide constitutional interpretation: his awareness of the framers’ desire to keep the convention’s proceedings secret from the ratifiers; various defects in the historical record, including his having given only an abbreviated account of the proceedings (and possibly having rewritten or revised portions of his notes after the convention); and the status of the ratifiers as the genuine sources of the Constitution’s authority.11 Accordingly, he urged later generations to look “for the meaning of [the Constitution] not in the General Convention which proposed, but in the State Conventions which accepted and ratified it.”12

Nevertheless, the early debates and origins of the federal impeachment process command our attention because they are inherently interesting and provide insights into the creative process of framing the Constitution, and perhaps the general public’s understanding of the Constitution’s language at or around the time of the framing and ratification. The debates may help modern students of the Constitution figure out what certain words may have meant to the framers and ratifiers. If nothing else, the constitutional and ratification convention debates provide a unique glimpse into the context from which the impeachment clauses sprang.13

Indeed, the historical record on the federal impeachment process is relatively clear on several matters of current interest. To begin with, all of the delegates principally involved in the impeachment debates in the constitutional convention were familiar with state impeachment procedures at that time; and the most influential speakers—Edmund Randolph, James Madison, George Mason, William Paterson, Hugh Williamson, James Wilson, Benjamin Franklin, Elbridge Gerry, Rufus King, Gouverneur Morris, Alexander Hamilton, and Charles Pinckney—were each well informed about the history of impeachment in England and their respective states.14 Moreover, the convention used as its model the basic features of the most popular state impeachment systems—particularly the common provision that only officers could be impeached for criminal acts in office, with removal and disqualification as the only sanctions15—rather than the English practice under which the Parliament could impeach public officials and private citizens for so-called political crimes—offenses or conduct that injured the nation in some way— and, upon their convictions, impose various criminal penalties, including death.

Indeed, there were five particular issues relating to impeachment that elicited some significant discussion in the constitutional and ratification conventions. Two of these issues—the proper forum for impeachment trials and the appropriate means for judicial removal—overlapped, because they both involved similar aspects of each of the four main plans before the constitutional convention.

For example, Edmund Randolph made the first significant suggestion regarding the proper court for impeachment trials by suggesting as part of his proposed Virginia Plan the creation of a national judiciary, which would hold its offices during “good behavior” and have the power to impeach “any national officers.”16 This plan became the order of business the next day when the convention resolved itself into a Committee of the Whole to begin serious deliberation. On the same day, Charles Pinckney of South Carolina proposed an alternative draft of a federal constitution,17 which was also referred to the Committee of the Whole.18 Randolph’s resolutions became the focus of the convention’s discussion and, as amended, the substance of the first report of the Committee of the Whole to the convention on June 13. Randolph and Madison agreed that the convention should give the power of impeachment to the national judiciary.

In the middle of June, William Paterson, who also was the attorney general of New Jersey, proposed the New Jersey Plan as an alternative to the Virginia Plan. The New Jersey Plan gave the national judiciary “the authority to hear and determine in the first instance on all impeachments of federal officers.”19 It further provided that Congress could remove the executive upon the application of a majority of the state governors but it could not impeach. Shortly after the introduction of the New Jersey Plan, James Wilson of Pennsylvania contrasted the New Jersey and Virginia plans’ treatments of impeachment.20 He noted that the Virginia Plan provided for the removal of officers upon impeachment and conviction by the federal judiciary, while the New Jersey Plan neglected to include impeachment by the lower house but instead provided for removal only through application of a majority of the state governors.

On June 18, Alexander Hamilton of New York entered the debate on the proper court for impeachments. He proposed a plan modeled on the British system and the New York Constitution. Under his plan, the chief executive, senators, and federal judges were to serve during good behavior.21 He further proposed that

[t]he Governor, Senators and all officers of the United States were to be liable to impeachment for maladministration and corrupt conduct; and upon conviction to be removed from office, and disqualified for holding any place of trust or profit—all impeachments to be tried by a Court to consist of the Chief or Judge of the Superior Court of Law of each state, provided such judge shall hold his place during good behavior and have a permanent salary.22

While Madison in late July still pushed for the national judiciary as the body to be empowered to try impeachments, the Committee of Detail,23 responsible for putting all resolutions and suggestions into draft form, considered a compromise solution to allow trial “before the Senate and the judges of the federal judicial Court.”24 But, on August 6, the committee released its official report proposing in part that the House of Representatives “shall have the sole power of impeachment”25 and that the president “shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court. . . .”26 The committee further suggested giving the Supreme Court original jurisdiction of “the trial of impeachments. . . .”27

On August 27, the convention, at the request of Pennsylvania’s Gouverneur Morris, postponed consideration of vesting the power to hold impeachment trials in the Supreme Court. Morris worried that the Supreme Court was unsuited for that purpose, “particularly, if the first judge was to be of the [P]rivy Council.”28 John Dickinson of Delaware moved to provide that judges should serve “during good behavior” but “may be removed by the Executive on the application [of] the Senate and House of Representatives.”29 Elbridge Gerry of Massachusetts seconded the motion, but Morris argued against Dickinson’s motion on the ground that it was contradictory to “say that the Judges should hold their offices during good behavior, and yet be [removable] without a trial.”30 Roger Sherman of Connecticut disagreed with Morris, noting that a similar provision was contained in the British statutes.31 James Wilson responded that such a provision was less dangerous in England because it was unlikely the House of Lords and the House of Commons would ever concur on judicial removal. But, “[t]he judges would be in a bad situation,” Wilson warned, “if made to depend on every gust of faction which might prevail in the two branches of [the American] government.”32 John Rutledge of South Carolina and Virginia’s Randolph agreed with Wilson and objected to Dickinson’s motion. When the motion came to a vote, only Connecticut favored it, while seven state delegations opposed it.33

On September 4, the Committee of Eleven, which the convention commissioned to report on those parts of the Constitution that had been postponed or not yet acted upon, urged the convention to accept the proposal that “[t]he Senate of the United States shall have power to try all impeachments. . . .”34 The committee agreed to vest the Senate with this power after concluding that the president would not be selected by the Senate but rather by a college of electors, thereby removing what the committee had perceived as the troublesome conflict of granting both the trial and appointment powers to the same body.

In the ensuing convention debate, Madison objected to the Senate as the forum for trying impeachments because it would make the president “improperly dependent” on the Senate “for any act which might be called a misdemeasnor [sic].”35 Madison proposed that the Supreme Court, acting either alone or in conjunction with another body, was the more appropriate forum.36 Morris favored the Senate, maintaining that “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes. . . .”37 He thought the Supreme Court “might be warped or corrupted” if it had the power to try impeachments, particularly in a case involving a president who had appointed any of its members.38 Pinckney agreed with Madison that empowering the Senate to try impeachments would make the president too dependent upon the legislature.39 Hugh Williamson of North Carolina argued that the Senate would be too lenient in presidential impeachments because it shared various powers with the president, while Sherman contended that the Supreme Court was an improper body for trying impeachments because the president appointed its members, at least some of whom might feel loyalty to him for having selected them.40

The convention delegates ultimately agreed that the Senate posed the fewest problems of any of the various proposed trial courts. When the full convention voted on the Senate as the trial body for impeachments, only two state delegations—Pennsylvania and Virginia—dissented from the proposal to make the Senate the “sole” court for impeachment trials.41

The th...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• CONTENTS
• Preface to the Third Edition
• Acknowledgments
• PART I: THE HISTORICAL ORIGINS OF THE FEDERAL IMPEACHMENT PROCESS
• PART II: TRENDS AND PROBLEMS IN IMPEACHMENT PROCEEDINGS
• PART III: CLARIFYING THE CONSTITUTIONAL ASPECTS OF THE FEDERAL IMPEACHMENT PROCESS
• PART IV: IMPEACHMENT REFORMS
• PART V: PRESIDENTIAL IMPEACHMENT IN THE AGE OF CLINTON AND TRUMP
• Notes
• Bibliography
• Bibliography Addendum
• Index