Week 48: Impeachment

In this election cycle, a topic has arisen that had not been among those originally contemplated for this 52 Weeks blog. The topic, of course, is impeachment. Let us begin by grounding ourselves in the Constitution of the United States of America, which is the foundation of our social contract with one another, including those citizens chosen for public office.

·        Article I, Section 2, Clause 5 of the Constitution gives the House of Representatives the sole power of impeachment.

·        Article I, Section 3, Clause 6 give the Senate the sole power to try all cases of impeachment. When serving in this function, Senators are under oath or affirmation. When trying the president, the Chief Justice of the Supreme Court presides. A concurrence of two-thirds of members present are required for conviction.

·        Article II, Section 4 lists the offenses for which a president may be removed from office, which include: treason, bribery or other high crimes and misdemeanors.

·        Article 1, Section 3, Clause 7 lays out the punishments for a conviction of treason. They include: removal from office and the disqualification to hold office. This is the extent of the powers of Congress. An impeached individual may still be subject to trial and penalty as a citizen under the law.

In the late eighteenth century, after the War of Independence was won and after the Articles of Confederacy were being found insufficient in terms of governing the new nation, the Constitution was drafted and an effort for ratification was underway. To further explain and gain support for the new Constitution, Alexander Hamilton, John Jay and James Madison wrote a series of 85 essays, which are collectively known as The Federalist Papers.

In Federalist 65, Hamilton opens in regard to the powers of the Senate, “A well-constituted court for the trials of impeachments is anb object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself. The prosecution of them, for this reason, 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; 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.”

By way of background, and as an illustration of how times change, the power to try cases of impeachment was vested in the Senate, as it was, at the time, viewed as “significantly dignified” and “sufficiently independent.” The Supreme Court was thought to lack the appropriate degree of credit and authority to try such cases. Additionally, impeachment is predicated on some political violation, as described above, and not necessarily a violation of law, for which the Supreme Court was designed to adjudicate.

Providing alternative arguments during the period of consideration of ratification were writings that have become, collectively, The Anti-Federalist Papers. Under the nom de plume Brutus, the issue of high crimes and misdemeanors was mentioned on March 20, 1788. “Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors.

With insight from these papers into the intentions of those who designed the impeachment process, we must weigh the impending impeachment of Donald Trump from two perspectives.

First, are the accusations against him ones of errors in judgment or want of capacity to discharge his office? For clarification, the word capacity, at that time, included concepts that we may differentiate today as capability. It is ability in a legal, moral or intellectual sense.

Second, are the accusations against him born of a dislike for the political philosophy he espouses or the personal characteristics he embodies.

In The Federalist Papers, impeachment is described as a “national inquest.” If this inquest proves nothing more than an error in judgment or exposes no more than an agitation of the passions, we must, through the lens of principle, disregard his alleged offenses, if we are to cast votes unprejudiced by the animosity of the president’s political opponents. However, if he be accused and perhaps condemned of substantive violations of the public trust, which injure the body politic, we must let that guide our consciences in casting our votes.

In Federalist 64, Jay writes, as it relates to corruption in the execution of treaties, “As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained.” The Founders envisioned persons of good will to be elected to office and that the will of the people would guide such elections.

The House of Representatives, our representatives, hold the power to impeach; the Senate to convict. As citizens, it is our duty to let our voices be heard by our representatives. Weigh the issue in the context of the Constitution and informed by the two questions above. Then, without the subjectivity of passion, tell your representative how to proceed, consistent with your expectation of him or her.