Once the group of brilliant men who founded the most extraordinary nation in the history of mankind had developed the rules on how to acquire a leader for the new United States of America, they then had to devise a way to dispose of him.
The result was a process called ‘impeachment,’ and its definition as found in the Constitution is: “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”
During the deliberations in the 18th Century, our Founders, who fully understood how devastating implementing this process could be for the country and its citizens, consciously kept this process as brief and simple as possible. The founding fathers thought impeachment to be a “heroic medicine, an extreme remedy.”
There is no nuance to be found in the impeachment process.
The deliberations of our extraordinary Founders in the creation of this necessary process were, as they always are, brilliant, fascinating, and profound.
James Madison, one of our greatest Founders and the primary author of our constitution, said in the Federalist Papers regarding the need of impeachment, “It may be a reflection of human nature that such precaution may be necessary. But what is government but the greatest of all reflections on human nature?”
Madison also explained the requirement for impeachment:: “[S]ome provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”
Peculation and oppression certainly seem to apply since hope and change came to America.
The Founders pondered what should be done if, as the great Dr. Benjamin Franklin asked during the deliberations, a President “rendered himself obnoxious”? To Alexander Hamilton, an ardent supporter of a strong Chief Executive, impeachment was the ultimate device for checking power in a democracy. In Hamilton’s words, it was “a method of National Inquest into the conduct of public men,” to be conducted by “the inquisitors for the nation” in Congress.
Hamilton also expressed the view that: impeachment of the president should take place for “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.” He went on to say: “Men in public trust will much oftener act in such a manner as to render them unworthy of being any longer trusted, than in such a manner as to make them obnoxious (subject) to legal punishment.”
If Franklin and Hamilton agree that obnoxiousness is enough to rid us of an unwanted President, it’s good enough for me.
In effect, the impeachment process was created as the ‘constitutional remedy for those public servants who would potentially violate the public trust.’ This process was part of the painstakingly developed system of checks and balances, separation of powers, and limited government with the consent of the governed, and other ‘enlightened principles inherent to a constitutional republic.’
‘Consent of the governed?’ What part of that simple concept does hope and change not understand?
Our Founders deemed a republic to be the best and highest form of government, ‘whereby men are endowed by their Creator with the inviolable and inalienable natural rights to life, liberty, property, and the pursuit of happiness’. These natural rights preceded those of government and ‘were granted by God, guaranteed by constitutional government, a government based on the judicious rule of law rather than the capricious rule of man,’ and ultimately enforced by the nation’s citizens.
As John Adams wrote in 1798: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
The Founding Fathers wisely provided definitions for each of the terms used in describing the process. Treason, for example, was defined as the following: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
’High crimes and misdemeanors’ became part of the text of the Constitution thanks to both George Mason and James Madison. Mason had argued that the reasons having been given for impeachment – treason and bribery – were not enough. He worried that other “great and dangerous offenses” might not be covered, so Mason then proposed that ‘high crimes and misdemeanors’ be added to cover any and all of these transgressions. ‘High crimes and misdemeanors’ was a phrase well-known in English common law in the late 18th century, and while ‘high crimes’ is easily understood, the lesser known term ‘misdemeanor’ was meant to describe a ‘mis-demeanor,’ or bad behavior.
‘High crimes and misdemeanors’ does not refer to a criminal act, as some over the years have mistakenly assumed. Our Founding Fathers fully intended to provide for the removal of a President whose actions were, according to a Constitutional scholar “… egregious, grossly incompetent, grossly negligent, outright distasteful, or which clearly show malevolence toward this country.”
The Constitution provides for Congress to decide the definition of impeachable offenses by majority vote in the House for impeachment, and by 2/3 vote in the Senate for conviction. The Framers of the Constitution purposely put impeachment under the aegis of the legislative branch, rather than into the hands of the judicial branch, in order to transform the process “from strictly a matter of legal definition to a matter of political judgment.”
It was actually then-Congressman Gerald Ford who, in putting the process in an appropriately political perspective in 1970, stated that an impeachable offense is ‘whatever a majority of the House of Representatives considers it to be at a given moment in history.’
Perhaps the most ironic application of the meaning of the words creating the process of impeachment were those uttered by an Arkansas law school professor who was running for Congress in 1974. In February of that year, William Jefferson Clinton explained “high crimes and misdemeanors” as follows: “I think the definition should include any criminal acts plus a willful failure of the president to fulfill his duty to uphold and execute the laws of the United States. [Another] factor would be willful, reckless behavior in office; just totally incompetent conduct of the office and the disregard of the necessities that the office demands.” How scholarly – and prescient.
The House power to impeach and the Senate power to try and convict are exclusive powers, according to our Constitution, and it is stated as well that the “sanctions of removal and disqualification from office are the only punishments possible.” At this point in our history, it is considered to be a normal practice that legislation calling for impeachment is introduced in just about every Presidential Administration for a myriad of reasons. It was the case in the Administration of President Nixon, for example, that the first legislation calling for his impeachment had nothing to do with Watergate; it was for the President’s “unlawful” bombing during the Vietnam war.
There have been four Presidents in our history who have been involved in the process of impeachment, and the process was not completed in any of these. President Andrew Johnson, succeeding to the Presidency after the assassination of Abraham Lincoln, was impeached in the House, but the Senate voted not to convict him, Johnson avoiding conviction by only one vote. There was an impeachment effort made in the House of Representatives against President John Tyler, but it was not successful. President Richard Nixon resigned before the impeachment process against him was completed; in another ironic twist of history, our current Secretary of State, Hillary Rodham Clinton, served as a staff attorney on the Impeachment Committee. Our most recent impeachee, William Jefferson Clinton and the husband of the aforementioned Hillary, was impeached by the House of Representatives, but not convicted by the Senate.
Our cherished U.S. Constitution and its brilliant creators never fail to be able to answer all our questions. But in this case, one remains.
What are we waiting for?