As the Senate sits in the impeachment trial of President Donald Trump, dramatic new revelations outside the chamber contrast with a trial that has so far followed the expected script. While the explosive claims that John Bolton reportedly made in his forthcoming book have reinvigorated the push for witnesses, there is little drama about the expected conclusion—a near party-line acquittal. The ultimate result may seem inevitable, but how and why the Senate arrives there may have significant consequences for our constitutional system going forward.
Throughout the impeachment inquiry and subsequent trial, President Trump’s legal team has deployed reckless rhetoric and advanced shaky legal arguments seeking to not only exonerate him but to delegitimize the impeachment process itself. These claims strike at the heart of essential congressional powers. Distressingly, a number of the president’s allies in Congress have advanced or endorsed positions that, if accepted, will further degrade the power of the body in which they serve.
We’ve heard the impeachment process described as a “sham,” a “coup,” and even “Soviet-style.” (I’m not familiar with Soviet constitutional practices, but I’m fairly certain that Soviet-style impeachment proceedings involved things considerably less pleasant than a deposition in the SCIF, like an ice pick in the head.) We’ve been told that the House may not impeach or and the Senate may not convict in the absence of a chargeable crime, that a partisan impeachment is facially illegitimate, that the Senate should not independently collect evidence during its trial, and that the Founders wanted the voters, not Congress, to decide matters like this. These ahistorical claims are not grounded in the law or constitutional theory. To accept these claims, or even take them seriously, is to further degrade an already dangerously weakened Congress.
Despite what we often hear about “co-equal” branches of government, the Founders never used that term to refer to the separation of powers between the legislature, executive, and judiciary. On the contrary, they quite clearly intended for Congress to be the beating heart of our government. James Madison, writing in the Federalist Papers, reminds us that “In republican government, the legislative authority necessarily predominates” and that the “people are the only legitimate fountain of power.” A simple reading of the Constitution supports this: Article I spells out a rather lengthy list of congressional powers, the far briefer Articles II and III discuss the important but limited powers of the executive and judicial branches respectively.
The impeachment power is the ultimate evidence of legislative primacy. The Founders gave Congress the power to reach into the other branches, remove personnel, and disqualify individuals from ever holding office again. Meanwhile, Congress itself is largely immune from meddling by the other branches and decides for itself whether to punish or eject members for malfeasance.
America inherited impeachment, like so much else, from the British. In England, impeachment was a tool that Parliament developed during its struggles for power with the crown. Through impeachment, the House of Commons could accuse, and the House of Lords try, agents of the crown, though not the crown itself. This gave Parliament the ability to punish “high crimes and misdemeanors,” including abuses of power and attempts to subvert the hard-won balance of powers.
In America the several colonies, later independent states, adapted the English tradition in different ways. The framers of the new federal government considered a range of options for where to seat the power of impeachment, including courts. They placed it in the Legislature, deliberately, to empower the it to keep the other two branches in check. Hamilton wrote in Federalist 65: “Is not this the true light in which [impeachment] ought to be regarded?” “[A]s a bridle in the hands of the legislative body upon the executive servants of the government.”
Similarly, Hamilton thought the danger of the judiciary encroaching on legislative authority “a phantom” due to the “the important constitutional check” of impeachment. “This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”
In the early years of the Republic, the Senate clarified the purpose of impeachment as a tool to police abuses by the other branches of government when it acquitted a senator who had been impeached by the House. In the course of dismissing the case—the first impeachment trial and the only involving a member of Congress—the Senate voted that senators and representatives were not “civil officers of the United States” subject to impeachment.
The impeachment power stands as the ultimate guarantee of legislative primacy and sound constitutional order, not a mere mechanism to punish criminal acts by members of the other two branches of government. Indeed, the punishment for impeachment is limited to removal from office and disqualification from holding office in the future. If impeachment were meant primarily to address criminality, there is no reason the consequences would be so limited. In fact, the Constitution emphasizes that impeached and removed individuals “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Clearly there can be overlap between criminal and impeachable behavior, but fundamentally impeachment and criminal prosecution are about two different things.
The Constitutional Convention devoted considerable time to debating the impeachment power. Some delegates argued that impeachment would only be necessary to remove judges who otherwise serve for life, but that no such power would be necessary to remove the president. The president, they argued, served for a fixed term and would have to face re-election, and this alone would guarantee good behavior. Rufus King argued that the president “would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it.”
The Convention, however, rejected these arguments, and agreed that impeachment would provide an essential protection against executive usurpation of power—including the possibility of a president who corruptly achieved re-election. George Mason argued that “No point is of more importance than that the right of impeachment should be continued.” A president, James Madison warned, “might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph urged that Congress must have the power to remove presidents because “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.”
The Framers considered enumerating specific impeachable offenses—such as bribery and treason—but instead selected a more flexible standard. The then-ongoing impeachment trial of Warren Hastings, the former British governor of India, heavily informed their decision. That prosecution (led by Edmund Burke, the intellectual father of modern conservatism) included a long list of charges, which boiled down to allegations that Hastings subverted the constitutional order of British India to benefit and enrich himself personally and in so doing harmed the interests of both Indians and the British Empire. To capture behavior like this, which may not have violated any laws, George Mason of Virginia suggested impeachment should be an available remedy for “maladministration.” Madison objected that such a standard would be too low and “equivalent to a tenure during pleasure of the Senate.”
And so the Convention adopted the now familiar standard of “high crimes and misdemeanors”—a standard flexible enough to capture noncriminal conduct injurious to the public or constitutional order. Madison argued that impeachment should be a tool “for defending the community against incapacity, negligence, or perfidy.” James Wilson explained that impeachment power concerns “political punishments” for “political crimes and misdemeanors.” These matters were not “within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects.”
In addition to the Hastings matter, the Founders regularly described noncriminal actions as potentially impeachable. During the debates in the Convention on behaviour that should trigger impeachment, Benjamin Franklin referred to William V of Orange who, allegedly, failed to provide promised Dutch support to French naval operations during the American Revolution.
By all indications the Founders expected impeachments to happen with some regularity. Their decision to place impeachment in the popular branch of the legislature where it requires only a majority vote strongly suggests this. Hamilton, well aware of the dangers of popular democracy, nonetheless wrote of impeachment “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?” Furthermore, the Founders believed the process of trying an impeachment case would itself be healthy for the country. Franklin argued that the impeachment process would “provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”
Far from thinking partisan-inflected impeachments a dangerous precedent, Hamilton expected such scenarios would be common, writing that impeachment “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 solution to this problem was not to neuter the ability of the House to open a “national inquest” by voting for impeachment, instead it was to place the trial in the Senate. Hamilton explained that the Senate could rise above these popular partisan passions: “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?” Furthermore, the two-thirds vote required to remove would be an added guarantee that conviction would only follow some level of national consensus: “the security to innocence, from this circumstance, will be as complete as itself can desire.”
America has now witnessed only 20 impeachment trials: federal judges, one senator, one Cabinet member, and three presidents. Several other impeachment inquiries have been opened and stalled out for one reason or another. Of those twenty trials, to date, only eight individuals have been removed from office, all of them judges. Given the erosion of Congressional power over time, the Founders would likely be surprised by how rarely Congress has used that ultimate tool to maintain its authority in our system.
Still, a review of impeachment precedents reveals plenty of examples of impeachment for non-criminal conduct. Especially in 19th century cases, majorities in Congress clearly believed that the impeachment could and should be used to punish abuse of power and attempts by either the judiciary or the executive to encroach on Congressional authority.
After the ascendency of the Democratic Republicans—and especially after the election of Thomas Jefferson—the party’s congressional majorities turned a skeptical eye towards Federalist judges and the judiciary’s asserted power of judicial review. The first successful impeachment and removal occurred in 1804 when Congress ousted Judge John Pickering for drunkenness, blasphemy, and failure to follow precedent. (He may have simply been mentally ill, itself a potential noncriminal ground for impeachment.)
The next year, the Democratic-Republican House impeached Justice Samuel Chase, who it perceived as a Federalist partisan. Specifically, the impeachment articles concerned a series of judicial decisions and actions, one of which President Thomas Jefferson considered a “seditious and official attack on the principles of our Constitution.” A majority of the Senate voted to convict on five of eight articles of impeachment but fell short of the two-thirds required to remove. Some argue that the Chase trial established a precedent that judges cannot be removed based on judicial philosophy or the quality of judging, but that’s a dubious conclusion to draw when the majority of senators voted for conviction.
The first serious impeachment inquiry directed at the executive also involved not criminal behavior, but an allegation that the president had exceeded his constitutional authority. President John Tyler became the first president to succeed to the office via the death of his predecessor. Called “His Accidency” by critics, he never had better than a relationship of convenience with the Whigs who had nominated him to the vice presidency. As president, he clashed with the Whig congressional majorities often. In general, some resisted the idea that a vice president having succeeded a president by death should claim the full powers of an elected president. The specific trigger for an impeachment inquiry, however, came when Tyler vetoed legislation on policy grounds, as opposed to constitutional ones, which had been the basis for all previous vetoes. A committee of the House concluded that this constituted an abuse of power, but the movement to impeach fizzled when Whigs lost their majority in the midterm elections.
The first successful impeachment of a president came in the case of another “accidental” president, Andrew Johnson, who had an even weaker connection to the party that nominated him to the vice presidency. Johnson, a slaveholding southern Democrat who nonetheless remained loyal to Union, earned a spot on Abraham Lincoln’s ticket as a gesture of reconciliation to the South. After Lincoln’s assassination he quickly became an enemy of the Republican Congress. His use of the veto pen dwarfed any of his predecessors and, in turn, Congress ran up a record number of veto overrides.
After the conclusion of the Civil War, President Johnson especially clashed with the Republican Congress over reconstruction policies. In March of 1867, Congress passed, over Johnson’s veto, the Tenure of Office Act. The (patently unconstitutional) law purported to restrict the ability of the president to fire certain members of the Executive Branch absent Senate approval. Notably, the law itself specified that anyone who violated its terms committed a “high misdemeanor.”
Johnson, correctly believing the Tenure of Office Act unconstitutional, fired the secretary of war. Within days the House (on near party-line votes) impeached the president and submitted 11 articles of impeachment to the Senate. Most of these related to violations of the Tenure of Office Act, but they also alleged that Johnson sought to usurp Congress’s centrality in our system of government. Article 10 stated that Johnson: “intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, which all officers of the government ought inviolably to preserve and maintain, and to excite the odium and resentment of all good people of the United States against Congress.” Although this article passed the House by the slimmest margin of the 11, it still earned an overwhelming 88-44 vote.
In contrast to the hasty process in the House, the Senate conducted an extensive trial, calling dozens of witnesses. A strong majority of the Senate supported convicting and removing President Johnson but fell one vote short of the two-thirds necessary for removal. No Democrats supported removal and 10 of 45 Republicans broke with their colleagues. A major factor in the acquittal appears to have been the ambiguity of the Tenure of Office Act itself, which arguably did not apply to holdover appointees from previous presidents and presidential terms.
In the 150 years since Andrew Johnson’s impeachment, the bulk of impeachments have involved illegal or unethical behavior, if not always violations of criminal law. Meanwhile, the judiciary and, especially, the executive have gathered unto themselves ever more power. Congressional reaction to executive overreaching has rarely exceeded a shrug, an angry press release, or litigation. The Framers did not expect that the most powerful branch of government would be so impotent in the face of abuses by the other branches. They certainly did not expect that Congress would beg the courts to protect its prerogatives. In impeachment, the Founders gave Congress a tremendously powerful too—one which Congress has left on the shelf for far too long.
Allies of President Trump fret about the precedent this impeachment sets. They worry that future presidents will be impeached far too readily and will have to waste time defending the constitutionality of their actions before a vigorous Senate trial. It is difficult to understand what the republic has to fear from such a scenario. A president should have to defend questionable assertions of his or her authority and, with a two-thirds requirement for removal, will only lose his or her position in times of true national consensus. The Founders believed the constitutional process of adjudicating abuses of office would be healthy to the republic and help diffuse, rather than inflame, divisions.
Barack Obama famously adopted a “pen and phone” approach to governing after losing congressional majorities. He undid federal policy on immigration through a dubious categorical claim of “prosecutorial discretion.” He claimed the power to decide for himself when Congress is in recess in order to make appointments without Senate approval, a move later rejected unanimously by the Supreme Court. He reinterpreted existing law to make substantive policy changes that Congress would never approve.
Republicans itching to gut the impeachment power to defend President Trump should ask themselves—if they really believe President Obama abused his powers in the above instances—why didn’t Congress impeach? Shouldn’t it have? Admittedly, removing a popularly elected president involves some real trauma to the public. One can understand a prudential hesitance to remove a president in all but the gravest scenarios, but why not remove a Cabinet member closely involved with abuse of executive power? Punishing executive overreach in that manner would echo the British tradition that our Founders embraced and would also help curb executive overreach.
However the Senate concludes in the current trial, it should not accept arguments that would erase the very purpose of the impeachment power. To the contrary, the health of the Constitution would benefit from the rediscovery and invigoration of impeachment.
Photograph of the Capitol building by Win McNamee/Getty Images.