Their writings and debates surrounding the creation of the Constitution make clear that the framers feared a certain kind of character coming to power and usurping the republican ideal of their new nation. Having just defeated a tyrant — “Mad” King George III of England — they carefully crafted rules to remove such a character: impeachment. In the process, they revealed precisely the kind of corrupt, venal, inattentive and impulsive character they were worried about.
The very embodiment of what the Founding Fathers feared is now residing at 1600 Pennsylvania Ave.
Again and again, they anticipated attributes and behaviors that President Trump exhibits on an all-too-regular basis. By describing “High Crimes and Misdemeanors,” the grounds for impeachment, as any act that poses a significant threat to society — either through incompetence or other misdeeds — the framers made it clear that an official does not have to commit a crime to be subject to impeachment. Instead, they made impeachment a political process, understanding that the true threat to the republic was not criminality but unfitness, that a president who violated the country’s norms and values was as much a threat as one who broke its laws.
Gouverneur Morris, who wrote the Constitution’s preamble, and future president James Madison were worried about a leader who would “pervert his administration into a scheme of peculation” — theft of public funds — “or oppression. He might betray his trust to foreign powers,” as Madison put it. Morris, who like many in the colonies believed King Charles had taken bribes from Louis XIV to support France’s war against the Dutch, declared that without impeachment we “expose ourselves to the danger of seeing the first Magistrate [the President] in foreign pay without being able to guard against it by displacing him.”
Will Trump be impeached? It’s far less likely than some Democrats are suggesting
The possible involvement with a Russian scheme to corrupt the election process was something else the framers worried about, with George Mason, at the Constitutional Convention in 1787, calling for impeachment for any president who “might engage in the corrupting of electors.”
Meanwhile, Trump’s decision to fire FBI Director James B. Comey, the man investigating his administration’s Russian connections, is clearly an impeachable act, according to Madison. He wrote that if “the President can displace from office a man whose merits require that he should be continued in it … he will be impeachable … for such an act of maladministration.”
Constitution-signer Abraham Baldwin of Georgia likewise seemed to be speaking about the Comey firing way back in the first Congress, when he noted that if a president “in a fit of passion” removed “all the good officers of government,” he should be susceptible to impeachment.
But Baldwin had in mind a more pressing fear: a president who didn’t live up to his constitutional duty to properly staff the executive branch, including the various departments such as the State Department — say, by removing appointments of a previous administration and not replacing them. Sound like anyone you know? According to Baldwin, the duty of Congress in such situations was to “turn him out of office, as he had others.”
Another attribute the Founding Fathers feared in a president was the abuse of the power to issue pardons. Mason, at the Virginia constitutional ratification convention, worried in fact that the president might use his pardoning power to “pardon crimes which were advised against himself,” or before indictment or conviction “to stop inquiry and prevent detection.”
Whether Trump is considering a self-pardon is unknown, but it is fairly widely speculated that, with the August pardon of former Arizona sheriff Joe Arpaio, he was signaling to the likes of former campaign aides Paul Manafort and Michael Flynn that they too might be pardoned for disregarding valid orders and laws. To which the words of Madison would apply: “if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him,” he should be impeached.
And on it goes. The Founding Fathers tried to prepare the country for the possibility of someone not only corrupt and venal — whereby impeachment was “an essential check … upon the encroachments of the executive,” as Alexander Hamilton put it in the “Federalist Papers” — but also from someone simply unable to perform the job, whether through incompetence, ignorance or incapacity. (The first successful impeachment conviction in our history, for example, was of an elderly federal judge who had slipped into dementia.)
As Supreme Court Justice James Wilson, signer of both the Declaration of Independence and the Constitution, taught: The president “cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person his criminality … and he is responsible for every nomination he makes … far from being above the laws, he is amenable to them … in his public character by impeachment.”
But prescient as they were, what the framers may not have anticipated was someone who epitomized so many of their fears at once — someone like Donald Trump — being elected to the presidency in the first place. They hoped that the electoral college system would prevent that from happening. But in the event that didn’t happen, they added an additional fail-safe: impeachment. It’s now up to Congress to fulfill the framers’ vision.
Many people see chaos in the Trump administration and fear for the nation’s future. The president was duly elected, and yet this presidency has already been marked by lawsuits, an FBI investigation, policy confusion and escalating rhetoric with North Korea. Fortunately, the U.S. Constitution offers a direct, doable way to respond to such crises: impeachment.
The Founding Fathers, after all, won a revolution against a tyrannical chief executive — “Mad” King George III of England. They were fearful of a similar kind of leader taking charge in the new United States. They embedded in the Constitution an orderly process run by Congress, not the courts, to remove civil officers — the president, the vice president, federal judges, Cabinet members and others — who cause substantial harm to society. The idea, said Edmund Randolph, a leader of the Virginia delegation to the Constitutional Convention, was to circumvent “irregularly inflicted … tumults and insurrections.”
A resolution to impeach can only be filed by a member of the House of Representatives. If a simple majority of the House votes in favor of at least one article of impeachment, the accused official is impeached and must be brought to trial on the charges before the Senate, which acts as court and jury. If the Senate votes by a two-thirds majority to convict, the official is removed from office (the Senate can, by another vote, make it a permanent ban from public office).
Impeachment is an entirely political process; it isn’t a function of criminal or civil law. As Alexander Hamilton wrote in the Federalist Papers, impeachable offenses are “those offences which proceed from the misconduct of public men or … from the abuse or violation of some public trust. They are of a nature which may . . . be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
Misleading the public or lying in a way that causes harm to society — an allegation in the first Article of Impeachment against Nixon — is impeachable.
Impeachment requires no actual lawbreaking, and conviction by the Senate does not mean that an official has been found guilty of a crime. Impeachment requires no intent to do wrong. In fact, the first impeachment conviction in U.S. history involved a judge who was unable to perform his duties due to senility. He was, in other words, incapable of legal intent to do wrong.
Others among the founders gave us more detailed examples of impeachable offenses. James Madison cited negligence, abuse of presidential pardon power, the “wanton removal” of a meritorious officer and betrayal of trust to a foreign power. He feared a president who “might pervert his administration into a scheme of peculation or oppression” (“to peculate” is to steal public funds). James Wilson, one of the few founders who signed both the Declaration of Independence and the Constitution, believed in presidential impeachment liability “for every nomination he makes” and for attempts to “roll upon any other person his criminality.”
Yet the mainstay grounds for every impeachment in U.S. history remains the principle enunciated by Hamilton: harm to society. Two hundred years later, the 1974 House Judiciary Committee Impeachment Inquiry Staff Report, investigating charges against President Nixon, concurred with Hamilton when it concluded, “The crucial factor is not the intrinsic quality of behavior but the significance of its effect upon our constitutional system or the functioning of government.”
Misleading the public or lying in a way that causes harm to society — an allegation in the first Article of Impeachment against Nixon — is impeachable. So too is personal misconduct, subversion of the rule of law or undermining the integrity of the office, as in the Clinton impeachment.
Despite fairly recent proceedings such as those against Nixon and Clinton, there is a general perception that impeachment is an extremely rare and therefore drastic measure. In fact, since the Constitution was ratified, there have been 19 impeachment cases brought before the Senate. Six have occurred since the Nixon investigation in 1973-74. (That investigation led to the House Judiciary Committee voting to send three articles of impeachment to the full House for a vote. At that point Nixon resigned. The full House never voted on those articles, and thus Nixon was never impeached.) Further, one half of all impeachment convictions (four out of eight) in U.S. history have occurred from 1986 to the present.
In a book he wrote on the impeachments — and acquittals — of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868, Chief Justice William Rehnquist concluded that those cases “surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court.” And Rehnquist, who presided over the Clinton impeachment trial in the Senate, further reflected that the impeachment clause still had “considerable play in the joints.”
He was right — impeachment remains not just serviceable but from time to time necessary. Like Rehnquist, we can gain confidence from the history of impeachment in its ability to bring order from chaos, and see it as a tool we have no reason to fear.
Barbara Radnofsky is the author of “A Citizen’s Guide to Impeachment.”
In the U.S., impeachment is a constitutional process by which Congress can remove high officials, including the president, the vice president, federal judges, and Cabinet members, from office.
The Americans who fought in the Revolutionary War had a clear sense of the dangers of – and how to combat – a tyrannical, badly functioning, negligent, or incapacitated official in power. They foresaw U.S. civil officers as human beings prone to the same harmful tendencies and disabilities as the British king and his minions.
The remarkably well-educated American victors thoughtfully adapted British law to suit the needs of the new United States. They’d debated, reworked, and polished language to forge a constitution containing what we know as the “Impeachment Clause.” The new American statesmen wanted a noncriminal, orderly process – not “tumults and insurrections” – to deal with the “misconduct of public men,” as they focused on injuries done to “society itself.” Related constitutional clauses that describe the process give Congress (the legislative branch of government) sole power to impeach and remove a badly performing high official.
The U.S. impeachment process can result in the removal – but not the criminal punishment – of a U.S. public official who would cause substantial harm: “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.” U.S. Const. Art. II, Sec. 4.
While many of these stories involve crooks and swindlers who intentionally betrayed trust, sexually assaulted their employees, bribed, stole, sold out their country to enhance the value of their vast landholdings, violated America’s foreign policies, fomented war, covered up misdeeds, obstructed justice, committed perjury, and tampered with witnesses, the key factor in considering the impeachability of public officials for “other high Crimes and Misdemeanors” is the harm they can cause; it’s not the motive or intent of the official. The greater the potential for harm, the greater the case for impeachment and removal.
This book traces American impeachment history from the country’s founding to today, using the 19 cases of U.S. impeachment of judges, a cabinet member, a senator, and presidents, plus other important examples of impeachment activity that did not reach the stage of formal House impeachment. But behind the history of the Impeachment Clause in the United States lie centuries of British law and legal practice related to impeachment, which greatly influenced the Founding Fathers’ thinking as they created our system of government laid out in the Constitution. Our foundational documents, including the Constitution and its phrase “high Crimes and Misdemeanors,” are interpreted by looking to the thinking – that is, the intent – of the Founding Fathers and framers of our country’s foundational documents.
Radnofsky is an attorney and author of “A Citizen’s Guide to Impeachment.”