Today we have the advantage of knowing what to do, of having the model for action—full throated congressional inquiries, a bipartisan impeachment inquiry, and an investigation by Robert Mueller that proceeds without interference until it is properly concluded. These are simple, realizable objectives.
The American people can force action on this agenda as they did in response to presidential misconduct in Watergate. We have the power, we have the votes. We are still a democracy. If this book tells us anything, it is that we will have to fight hard, really hard, to keep it that way. And we can.
APPENDIX I
Report on the History and Law of Impeachments
In February 1974, the House Judiciary Committee released a report on the history and law of impeachments. The following excerpts contain the report’s summary of the key constitutional impeachment provisions and the history of the Impeachment Clause’s adoption at the Constitutional Convention.
Constitutional Grounds for Presidential Impeachment Report by the Staff of the Impeachment Inquiry
Introduction
The Constitution deals with the subject of impeachment and conviction at six places. The scope of the power is set out in 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.
Other provisions deal with procedures and consequences.
Article I, Section 2:
The House of Representatives … shall have the sole Power of Impeachment.
Similarly, Article I, Section 3, describes the Senate’s role:
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.
The same section limits the consequences of judgement in cases of impeachment:
Judgement 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, Judgement and Punishment, according to Law.
Of lesser significance, although mentioning the subject, are: Article II, Section 2:
The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Article III, Section 2:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury …
…
Delicate issues of basic constitutional law are involved. Those issues cannot be defined in detail in advance of full investigation of the facts. The Supreme Court of the United States does not reach out, in the abstract, to rule on the constitutionality of statutes or of conduct. Cases must be brought and adjudicated on particular facts in terms of the Constitution. Similarly, the House does not engage in abstract advisory or hypothetical debates about the precise nature of conduct that calls for the exercise of its constitutional powers; rather it must await full development of the facts and understanding of the events to which those facts relate.
What is said here does not reflect any prejudgement of the facts or any opinion or inference respecting the allegations being investigated. This memorandum is written before completion of the full and fair factual investigation the House directed be undertaken. It is intended to be a review of the precedents and available interpretive materials, seeking general principles to guide the Committee.
This memorandum offers no fixed standards for determining whether grounds for impeachment exist. The framers did not write a fixed standard. Instead they adopted from English history a standard sufficiently general and flexible to meet future circumstances and events, the nature and character of which they could not foresee.
The House has set in motion an unusual constitutional process, conferred solely upon it by the Constitution, by directing the Judiciary Committee to “investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach.” This action was not partisan. It was supported by the overwhelming majority of both political parties. Nor was it intended to obstruct or weaken presidency. It was supported by Members firmly committed to the need for a strong presidency and a healthy executive branch of our government. The House of Representatives acted out of a clear sense of constitutional duty to resolve issues of a kind that more familiar constitutional processes are unable to restore.
To assist the Committee in working toward that resolution, this memorandum reports upon the history, purpose and meaning of the constitutional phrase, “Treason, Bribery, or other high Crimes and Misdemeanors.”
…
The Intentions of the Framers
The debates on impeachment at the Constitutional Convention in Philadelphia focus principally on its applicability to the President. The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that “the maxim would never be adopted here that the chief Magistrate could do [no] wrong.” Impeachment was to be one of the central elements of executive responsibility in the framework of the new government as they conceived it.
The constitutional grounds for impeachment of the President received little direct attention in the Convention; the phrase “other high Crimes and Misdemeanors” was ultimately added to “Treason” and “Bribery” with virtually no debate. There is evidence, however, that the framers were aware of the technical meaning the phrase had acquired in English impeachments. Ratification by nine states was required to convert the Constitution from a proposed plan of government to the supreme law of the land. The public debates in the state ratifying conventions offer evidence of the contemporaneous understanding of the Constitution equally as compelling as the secret deliberations of the delegates in Philadelphia. That evidence, together with the evidence found in the debates during the First Congress on the power of the President to discharge an executive officer appointed with the advice and consent of the Senate, shows that the framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments.
1. The Purpose of the Impeachment Remedy
Among the weaknesses of the Articles of Confederation apparent to the delegates to the Constitutional Convention was that they provided for a purely legislative form of government whose ministers were subservient to Congress. One of the first decisions of the delegates was that their new plan should included a separate executive, judiciary, and legislature. However, the framers sought to avoid the creation of a too-powerful executive. The Revolution had been fought against the tyranny of a king and his council, and the framers sought to build in safeguards against executive abuse and usurpation of power. They explicitly rejected a plural executive, despite arguments that they were creating “the foetus of monarchy,” because a single person would give the most responsibility to the office. For the same reason, they rejected proposals for a council of advice or privy council to the executive.
The provision for single executive was vigorously defended at the time of the state ratifying conventions as a protection against executive tyranny and wrongdoing. Alexander Hamilton made the most carefully reasoned argument in Federalist No. 70, one of the series of Federalist papers prepared to advocate the ratification of the Constitution by the State of New York. Hamilton criticized both a plural executive and a council because they tend “to conceal faults and destroy responsibility.” A plural executive, he wrote, deprives the people of “the two greatest securities they can have for the faithful exercise of any delegated power”—“[r]esponsibility
… to censure and to punishment.” When censure is divided and responsibility uncertain, “the restraints of public opinion … lose their efficacy” and “the opportunity of discovering with facility and clearness the misconduct of the persons [the public] trust, in order either to their removal from office, or to their actual punishment in cases which admit of it” is lost. A council, too, “would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.” It is, Hamilton concluded, “far more safe [that] there should be a single object for the jealousy and watchfulness of the people; … all multiplication of the Executive is rather dangerous than friendly to liberty.”
James Iredell, who played a leading role in the North Carolina ratifying convention and later became a justice of the Supreme Court, said that under the proposed Constitution the President “is of a very different nature from a monarch. He is to be … personally responsible for any abuse of the great trust reposed in him.” In the same convention, William R. Davie, who had been a delegate in Philadelphia, explained that the “predominant principle” on which the Convention had provided for a single executive was “the more obvious responsibility of one person.” When there was but one man, said Davie, “the public were never at a loss” to fix the blame.
James Wilson, in the Pennsylvania convention, described the security furnished by a single executive as one of its “very important advantages”:
The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes … Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege, is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.
As Wilson’s statement suggests, the impeachability of the President was considered to be an important element of his responsibility.
Impeachment had been included in the proposals before the Constitutional Convention from its beginning. A specific provision, making the executive removable from office on impeachment and conviction for “mal-practice or neglect of duty,” was unanimously adopted even before it was decided that the executive would be a single person.”
The only major debate on the desirability of impeachment occurred when it was moved that the provision for impeachment be dropped, a motion that was defeated by a vote of eight states to two.
One of the arguments made against the impeachability of the executive was that he “would periodically be tried for his behavior by his electors” and “ought to be subject to no intermediate trial, by impeachment.” Another was that the executive could “do no criminal act without Coadjutors [assistants] who may be punished. Without his subordinates, it was asserted, the executive “can do nothing of consequence,” and they would “be amenable by impeachment to the public Justice.”
This latter argument was made by Gouveneur Morris of Pennsylvania, who abandoned it during the course of the debate, concluding that the executive should be impeachable. Before Morris changed his position, however, George Mason had replied to his earlier argument: “Shall any man be above justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors.”
James Madison of Virginia argued in favor of impeachment stating that some provision was “indispensible” to defend the community against “the incapacity, negligence or perfidy of the chief Magistrate.” With a single executive, Madison argued, unlike a legislature whose collective nature provided security, “loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.” Benjamin Franklin supported impeachment as “favorable to the executive”; where it was not available and the chief magistrate had “rendered himself obnoxious,” recourse was had to assassination. The Constitution should provide for the “regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” Edmund Randolph also defended “the propriety of impeachments”:
The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided it will be irregularly inflicted by tumults & insurrections.
The one argument made by the opponents of impeachment to which no direct response was made during the debate was that the executive would be too dependent on the legislature—that, as Charles Pinckney put it, the legislature would hold impeachment “as a rod over the Executive and by that means effectually destroy his independence.” That issue, which involved the forum for trying impeachments and the mode of electing the executive, troubled the Convention until its closing days. Throughout its deliberations on ways to avoid executive subservience to the legislature, however, the Convention never reconsidered its early decision to make the executive removable through the process of impeachment.
2. Adoption of “High Crimes and Misdemeanors”
Briefly, and late in the convention, the framers addressed the question how to describe the grounds for impeachment consistent with its intended function. They did so only after the mode of the President’s election was settled in a way that did not make him (in the words of James Wilson) “the Minion of the Senate.”
The draft of the Constitution then before the Convention provided for his removal upon impeachment and conviction for “treason or bribery.” George Mason objected that these grounds were too limited:
Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined-As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments.
Mason then moved to add the word “maladministration” to the other two grounds. Maladministration was a term in use in six of the thirteen state constitutions as a ground for impeachment, including Mason’s home state of Virginia.
When James Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason withdrew “maladministration” and substituted “high crimes and misdemeanors agst. the State,” which was adopted eight states to three, apparently with no further debate.
That the framers were familiar with English parliamentary impeachment proceedings is clear. The impeachment of Warren Hastings, Governor-General of India, for high crimes and misdemeanors was voted just a few weeks before the beginning of the Constitutional Convention and George Mason referred to it in the debates. Hamilton, in Federalist No.65, referred to Great Britain as “the model from which [impeachment] has been borrowed.” Furthermore, the framers were well-educated men. Many were also lawyers. Of these, at least nine had studied law in England.
The Convention had earlier demonstrated its familiarity with the term “high misdeameanor.” A draft constitution had used “high misdemeanor” in its provision for the extradition of offenders from one state to another. The Convention, apparently unanimously struck “high misdemeanor” and inserted “other crime,” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.”
The “technical meaning” referred to is the parliamentary use of the term “high misdemeanor.” Blackstone’s Commentaries on the Laws of England—a work cited by delegates in other portions of the Convention’s deliberations and which Madison later described (in the Virginia ratifying
convention) as “a book which is in every man’s hand”—included “high misdemeanors” as one term for positive offenses “against the king and government. The “first and principal” high misdemeanor, according to Blackstone, was “mal-administration of such high officers, as are in public trust and employment,” usually punished by the method of parliamentary impeachment.
“High Crimes and Misdemeanors” has traditionally been considered a “term of art,” like such other constitutional phrases as “levying war” and “due process.” The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them. Chief Justice Marshall wrote of another such phrase:
It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.
3. Grounds for Impeachment
Mason’s suggestion to add “maladministration,” Madison’s objection to it as “vague,” and Mason’s substitution of “high crimes and misdemeanors against the State,” are the only comments in the Philadelphia convention specifically directed to the constitutional language describing the grounds for impeachment of the President. Mason’s objection to limiting the grounds to treason and bribery was that treason would “not reach many great and dangerous offences” including “[a]ttempts to subvert the Constitution.” His willingness to substitute “high Crimes and Misdemeanors,” especially given his apparent familiarity with the English use of the term as evidenced by his reference to the Warren Hastings impeachment, suggests that he believed “high Crimes and Misdemeanors” would cover the offenses about which he was concerned.
Contemporaneous comments on the scope of impeachment are persuasive as to the intention of the framers. In Federalist No. 65, Alexander Hamilton described the subject of impeachment as “those offences 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 Case for Impeaching Trump Page 17