Impeachment

Background

The inclusion of the impeachment function in the Constitution goes to the very nature of the government itself. When the fathers began the preamble with the words, “We the People,” they changed the fundamental nature of government from everything that had gone before. No longer were the kings, the emperors, the princes, the parliaments nor other elements of the government responsible for the nature, quality, and virtues of the state. Henceforth the responsibility for the very character of the government would be the people themselves. It is that profound change that made the American Revolution truly revolutionary.

Since the people were to be responsible for the character of government, it was necessary to include in the Constitution the mechanisms for removing officials up to and including the president from office if they were guilty of misconduct involving abuses or violations of the public trust. In the excerpt of Federalist No. 65 below, Hamilton explains why the mechanisms, namely impeachment in the House of Representatives and trial in the Senate, were included.

Impeachment is a serious business. Although there have been many attempts to impeach numerous federal officers, most of those attempts came to nothing. One justice of the United State Supreme Court, Samuel Chase, was impeached by the House of Representatives but acquitted by the Senate. Impeachment proceedings against 4 vice presidents and 30 cabinet and other high-ranking officials were instituted, but none came to fruition. In a few cases, officials being impeached were removed from office by resignation or appointment to a different post. None were successfully impeached by the House and convicted by the Senate.

The most important figure to face impeachment has, of course, been the president. John Tyler was the first to face a serious impeachment investigation in 1842. The charge brought against him was that he had vetoed bills sent to him by Congress on other than constitutional grounds. The underlying cause was the fact that John Tyler was a former Democrat who had joined the Whig party because of his differences with Andrew Jackson. When he failed to support the Whig program, an impeachment proceeding was begun. The vote to impeach Tyler in the House of Representatives failed by 22 votes.

Better known is the impeachment of President Andrew Johnson. The underlying cause was the fact that Vice President Johnson was a Democrat who succeeded to the presidency when Abraham Lincoln was assassinated. Lincoln had not run as a Republican in 1864, but had chosen to run under the banner of the Union Party. When President Johnson failed go along with the Radical Republican reconstruction program by repeatedly vetoing bills, they passed a law they were sure he would refuse to obey. It was called the Tenure of Office Act, and details on that act can be found elsewhere. Although Republicans dominated Congress, Johnson's continued vetoing of bills was annoying, even though they could easily override his vetos. When Johnson violated the Tenure of Office Act, he was impeached, but the Senate failed to convict him by one vote, quite possibly because the next person in line was Senator Ben Wade, who was not popular with the Republican Radicals.

The next serious attempt at conviction of a president involve Richard Nixon. It came about as a result of what was known as the Watergate Affair. Nixon resigned from office in order to avoid impeachment, and it is widely believed that he would have been both impeached and convicted had the process gone forward.

More recently, President Bill Clinton was impeached for lying in the matter of the Lewinsky scandal. That event has also been discussed in detail in many places. He was in fact impeached by the house, but was not convicted by the Senate, as the vote fell far short of the required two-thirds majority.

What the Constitution Says about Impeachment

The House of Representatives shall ... have the sole Power of Impeachment.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The President shall ... have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

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.

It is worth noting that there is no exact definition of high crimes or misdemeanors here. It also important to point out that impeachment is not the same as a criminal trial. Although crimes punishable by criminal law may be part of an impeachment process, impeachment does not deal with them directly. Impeachment is only about whether or not the official in question is fit to continue in office in the United States government. In Federalist 65, Alexander Hamilton describes impeachment as a political act, not an act handled under the mechanisms of criminal law.

Federalist 65
Hamilton

Excerpts

To the People of the State of New York:


A well-constituted court for the trial of impeachments is an 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 the 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.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

[… Discussion about uniting Supreme Court with the Senate to create a court of impeachments. Hamilton explains why that was not done.]

[… Discussion of creating a special court for impeachments, which Hamilton describes as impractical.]

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.
PUBLIUS.

Link to Federalist No. 65

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