The Case for Impeaching Trump

by Elizabeth Holtzman

  Comments in the state ratifying conventions also suggest that those who adopted the Constitution viewed impeachment as a remedy for usurpation or abuse of power or serious breach of trust. Thus, Charles Cotesworth Pinckney of South Carolina stated that the impeachment power of the House reaches “those who behave amiss, or betray their public trust.” Edmund Randolph said in the Virginia convention that the President may be impeached if he “misbehaves.” He later cited the example of the President›s receipt of presents or emoluments from a foreign power in violation of the constitutional prohibition of Article I, section 9. In the same convention George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, “to stop inquiry and prevent detection.” James Madison responded:

  [I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty …

  In reply to the suggestion that the President could summon the Senators of only a few states to ratify a treaty, Madison said,

  Were the President to commit anything so atrocious … he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.

  Edmund Randolph referred to the checks upon the President:

  It has too often happened that powers delegated for the purpose of promoting the happiness of a community have been perverted to the advancement of the personal emoluments of the agents of the people; but the powers of the President are too well guarded and checked to warrant this illiberal aspersion.

  Randolph also asserted, however, that impeachment would not reach errors of judgment: “No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion resulted from a wilful mistake of the heart, or an involuntary fault of the head.”

  James Iredell made a similar distinction in the North Carolina convention, and on the basis of this principle said, “I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other.” But he went on to argue that the President

  Must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them,—in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him.

  In short the framers who discussed impeachment in the state ratifying conventions, as well as other delegates who favored the Constitution, implied that it reached offenses against the government, and especially abuses of constitutional duties. The opponents did not argue that the grounds for impeachment had been limited to criminal offenses.

  An extensive discussion of the scope of the impeachment power occurred in the House of Representatives in the First Session of the First Congress. The House was debating the power of the President to remove the head of an executive department appointed by him with the advice and consent of the Senate, an issue on which it ultimately adopted the position, urged primarily by James Madison, that the Constitution vested the power exclusively in the President. The discussion in the House lends support to the view that the framers intended the impeachment power to reach failure of the President to discharge the responsibilities of this office.

  Madison argued during the debate that the president would be subject to impeachment for “the wanton removal of meritorious officers.” He also contended that the power of the President unilaterally to remove subordinates was “absolutely necessary” because “it will make him in a peculiar manner, responsible for [the] conduct” of executive officers. It would, Madison said, subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.

  Elbridge Gerry of Massachusetts, who had also been a framer though he had opposed the ratification of the Constitution, disagreed with Madison’s contentions about the impeachablility of the President. He could not be impeached for dismissing a good officer, Gerry said, because he would be “doing an act which the Legislature has submitted to his discretion.” And he should not be held responsible for the acts of subordinate officers, who were themselves subject to impeachment and should bear their own responsibility.

  Another framer, Abraham Baldwin of Georgia, who supported Madison’s position on the power to remove subordinates, spoke of the President’s impeachability for failure to perform the duties of the Executive. If, said Baldwin, the President “in a fit of passion” removed” all the good officers of the Government” and the Senate were unable to choose qualified successors, the consequence would be that the President “would be obliged to do the duties himself; or, if he did not, we would impeach him, and turn him out of office, as he had done others.”

  Those who asserted that the President has exclusive removal power suggested that it was necessary because impeachment, as Elias Boudinot of New Jersey contended, is “intended as a punishment for a crime, and not intended as the ordinary means of re-arranging the Departments,” Boudinot suggested that disability resulting from sickness or accident “would not furnish any good ground for impeachment; it could not be laid as treason or bribery, nor perhaps as a high crime or misdemeanor.” Fisher Ames of Massachusetts argued for the President’s removal power because “mere intention [to do a mischief] would not be cause of impeachment” and “there may be numerous causes for removal which do not amount to a crime.” Later in the same speech Ames suggested that impeachment was available if an officer “misbehaves” and for “mal-conduct.”

  One further piece of contemporary evidence is provided by the Lectures on Law delivered by James Wilson of Pennsylvania in 1790 and 1791. Wilson described impeachments in the United States as “confined to political characters, to political crimes and misdemeanors, and to political punishment.” And, he said:

  The doctrine of impeachments is of high import in the constitutions of free states. On one hand, the most powerful magistrates should be amenable to the law: on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the constitution and the laws: every one should be secure while he observes them.

  From the comments of the framers and their contemporaries, the remarks of the delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly. It was intended to provide a check on the President through impeachment, but not to make him dependent on the unbridled will of the Congress.

  Impeachment, as Justice Joseph Story wrote in his Commentaries on the Constitution in 1833, applies to offenses of “a political character”:

  Not but that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements; and in short,
by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.

  …

  III. The Criminality Issue

  The phrase “high Crimes and Misdemeanors” may connote “criminality” to some. This likely is the predicate for some of the contentions that only an indictable crime can constitute impeachable conduct. Other advocates of an indictable offense requirement would establish a criminal standard of impeachable conduct because that standard is definite, can be known in advance and reflects a contemporary legal view of what conduct should be punished. A requirement of criminality would require resort to familiar criminal laws and concepts to serve as standards in the impeachment process. Furthermore, this would pose problems concerning the applicability of standards of proof and the like pertaining to the trial of crimes.

  The central issue raised by these concerns is whether requiring an indictable offense is an essential element of impeachable conduct is consistent with the purposes and intent of the framers in establishing the impeachment power and in setting a constitutional standard for the exercise of that power. This issue must be considered in light of the historical evidence of the framers’ intent. It is also useful to consider whether the purposes of impeachment and criminal law are such that indictable offenses can, consistent with the Constitution, be an essential element of grounds for impeachment. The impeachment of a President must occur only for reasons at least as pressing as those needs of government that give rise to the creation of criminal offenses. But this does not mean that the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense control the impeachment process. Nor does it mean that state or federal criminal codes are necessarily the place to turn to provide a standard under the United States Constitution. Impeachment is a constitutional remedy. The framers intended that the impeachment language they employed should reflect the grave misconduct that so injures or abuses our constitutional institutions and form of government as to justify impeachment.

  This view is support by the historical evidence of the constitutional meaning of the words “high Crimes and Misdemeanors.” That evidence is set out above. It establishes that the phrase “high Crimes and Misdemeanors”—which over a period of centuries has evolved into the English standard of impeachable conduct—has a special historical meaning different from the ordinary meaning of the terms “crimes” and “misdemeanors.” “High Misdemeanors” referred to a category of offenses that subverted the system of government. Since the fourteenth century the phrase “high Crimes and Misdemeanors” had been used in English impeachment cases to charge officials with a wide range of criminal and non-criminal offenses against the institutions and fundamental principles of English government.

  There is evidence that the framers were aware of the special, non-criminal meaning fo the phrase “high Crimes and Misdemeanors” in the English law of impeachment. Not only did Hamilton acknowledge Great Britain as “the model from which [impeachment] has been borrowed,” but George Mason referred in the debates to the impeachment of Warren Hastings, then pending before Parliament. Indeed, Mason, who proposed the phrase “high Crimes and Misdemeanors,” expressly stated his intent to encompass “[a]ttempts to subvert the Constitution.”

  The published records of the state ratifying conventions do not reveal an intention to limit the grounds of impeachment to criminal offenses. James Iredell said in the North Carolina debates on ratification:

  …, the person convicted is further liable to a trial at common law, and may receive such common law punishment as belongs to a description of such offences if it be punishable by law. Likewise, George Nicholas of Virginia distinguished disqualification to hold office from conviction for criminal conduct: If [the President] deviates from his duty, he is reponsible to his constituents … He will be absolutely disqualified to hold any place of profit, honor, or trust, and liable to further punishment if he has committed such high crimes as are punishable at common law.

  The post-convention statements of and writings of Alexander Hamilton, James Wilson, and James Madison—each a participant in the Consititutional Convention—show that they regarded impeachment as an appropriate device to deal with offenses against constitutional government by those who hold civil office, and not a device limited to criminal offenses. Hamilton, in discussing the advantages of a single rather than a plural executive, explained that a single executive gave the people “the opportunity of discovering with facility and clearness the misconduct of the person they trust, in order either to their removal from office, or to their actual punishment in cases which admit of it.” Hamilton further wrote, “Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment.”

  The American experience with impeachment, which is summarized above, reflects the principle that impeachable conduct need not be criminal. Of the thirteen impeachments voted by the House since 1789, at least ten involved one or more allegations that did not charge a violation of criminal law.

  Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process—removal from office and possible disqualification from holding future office. The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government. Furthermore, the Constitution itself provides that impeachment is no substitute for the ordinary process of criminal law since its specifies that impeachment does not immunize the officer from criminal liability for this wrongdoing.

  The general applicability of the criminal law also makes it inappropriate as the standard for a process applicable to a highly specific situation such as removal of a President. The criminal law sets a general standard of conduct that all must follow. It does not address itself to the abuses of presidential power. In an impeachment proceeding a President is called to account for abusing powers that only a President possesses.

  Other characteristics of the criminal law make criminality inappropriate as an essential element of impeachable conduct. While the failure to act may be a crime, the traditional focus of criminal law is prohibitory. Impeachable conduct, on the other hand, may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.

  To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as not to reach conduct that might adversely affect the system of government. Some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.

  If criminality is to be the basic element of impeachable conduct, what is the standard of criminal conduct to be? Is it to be the criminality as known to the common law, or as divined from the Federal Criminal Code, or from an amalgam of State criminal statutes? If one is to turn to State statutes, then which of those of the States is to obtain? If the present Federal Criminal Code is to be the standard, then which of its provisions are to apply? If there is to be new Federal legislation to define the criminal standard, then presumably both the Senate and the President will take part in fixing that standard. How is this to be accomplished without encroachment upon the constitutional provision that “the sole power” of impeachment is vested in the House of Representatives?

  A requirement of criminality would be incompatible with the intent of the framers to provide a mechanism broad enough to maintain the integrity of constitutional government. Impeachment is a constitutional safety valve; to fulfill this function, it must be flex
ible enough to cope with exigencies not now foreseeable. Congress has never undertaken to define impeachable offenses in the criminal code. Even a respecting grounds for impeachment, the federal statute establishing the criminal offense for civil officers generally was enacted over seventy-five years after the Constitutional Convention.

  In sum, to limit impeachable conduct to criminal offenses would be incompatible with the evidence concerning the constitutional meaning of the phrase “high Crimes and Misdemeanors” and would frustrate the purpose that the framers intended for impeachment. State and federal criminal laws are not written in order to preserve the nation against serious abuse of the presidential office. But this is the purpose of the constitutional provision for the impeachment of a President and that purpose gives meaning to “high Crimes and Misdemeanors.”

  APPENDIX II

  The Articles of Impeachment against President Richard Nixon

  On July 27, 1974, the House Judiciary Committee adopted the three following articles of impeachment against President Richard Nixon:

  RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:

  ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN THE NAME OF ITSELF AND OF ALL OF THE PEOPLE OF THE UNITED STATES OF AMERICA, AGAINST RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, IN MAINTENANCE AND SUPPORT OF ITS IMPEACHMENT AGAINST HIM FOR HIGH CRIMES AND MISDEMEANOURS.