The issue was taken up on several occasions in June. On June 2, Williamson offered his phrase “mal-practice or neglect of duty” and moved that impeachment be available on those grounds.32 The motion passed.33 On June 13, one of the early resolutions contained that formulation.34 On June 18, Hamilton offered his own proposal, with its reference to “impeachment for mal and corrupt conduct.”35 The proposal did not go anywhere. The impeachment provision stood with the words “mal-practice or neglect of duty.” How different American history would be if things had been left there!
In late July, this provision provoked the most extended debate it would ever receive. On July 19, Gouverneur Morris worried that if the president could be impeached at all, he would be “dependent on those who are to impeach,” thus undermining the separation of powers.36 (Note that for most of the Convention, the delegates were operating on the assumption that Congress would be picking the president, which bolsters the concern about dependence.) The next day, Charles Pinckney took up Morris’s point, arguing that in the new republic, the president “ought not to be impeachable whilst in office.”37 In defense of this position, Pinckney argued that impeachment would allow the legislature to have “a rod over the Executive and by that means effectually destroy his independence.”38
Pinckney’s view received a fair bit of support, and it played a big role in the day’s debate. Along with Morris, some people emphasized the system of separation of powers, which, in their view, would be badly compromised by allowing for any kind of impeachment. Others referred to the fact that the president, unlike a monarch, would be subject to periodic elections, a point that seemed to make impeachment unnecessary. With a limited term, was it really necessary to have any kind of impeachment mechanism? Wasn’t accountability enough?
But Pinckney’s view never came close to prevailing. On the contrary, it seemed to terrify some of the founders. George Mason was the most eloquent:
No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? . . . Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?39
In the same vein, Edmund Randolph urged, “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.”40 In his inimitable way, the pragmatic Franklin recalled past history: “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his character.”41
Madison pleaded that it was “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient safeguard.”42 (There’s a lot there: incapacity, negligence, or perfidy.) He feared that the president “might lose his capacity after his appointment.” Madison was especially concerned that the president “might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”43 And if the president were either corrupt or incapacitated, the situation might be “fatal to the republic” unless impeachment were available.44
More concisely, Elbridge Gerry, who had signed the Declaration of Independence, recalled the Revolution itself; he “hoped the maxim will never be adopted here that the chief Magistrate could do no wrong.”45 The circumspect Gouverneur Morris, who had previously been concerned that impeachment would make the president too weak and dependent, offered a constructive suggestion, to the effect that “corruption & some few other offenses” should be impeachable, but “the cases ought to be enumerated and defined.”46 As he put it, “The people are the king.”47
Informed by the reasonable and clear arguments made by Madison and Morris, the discussion seemed to be moving toward a distinctive view: the president should be impeachable, but only for a narrow and specified category of abuses of the public trust. This would be a compromise position—one that would retain the sharp separation between the president and Congress, but still permit impeachment and removal of the president in extreme cases.
But the discussion ended without agreement on any particular set of terms. The only vote was on the fundamental question: Shall the executive be removable by impeachment? The Ayes had it, 8 to 2. South Carolina and Massachusetts were alone in opposition.48
That settled the question. The president was no king. We the People would have a way to remove him from office.
Impeachment for What? The Cavalry
A big question remained: On what grounds?
During the early debates, the answer lay in an assortment of broad and vague terms: misconduct, neglect of duty, corruption, perfidy. But what about the concern, expressed by Madison and Gouverneur Morris, that the bases for impeachment should be specified?
The Committee on Detail, chosen by the Convention to turn the various proposals and recommendations into a draft of the Constitution, produced a new text of the impeachment clause on August 6. Evidently informed by Morris, this version would permit impeachment of the president, but only for treason, bribery, and corruption (exemplified by the president’s securing his office by unlawful means).49 But two weeks after that, on August 20, a radically different draft emerged, allowing impeachment and removal of multiple officers “for neglect of duty, malversation, or corruption.”50 That’s something new (what’s “malversation”?), and it sounds quite broad as well as vague.
On September 4, the Committee of Eleven, appointed to address unresolved issues, offered a much narrower provision, which proposed just two grounds for impeachment: “treason, or bribery.”51 Whatever happened to neglect of duty, malversation, and corruption? On September 8, the delegates took up the impeachment clause anew. Here they broadened the grounds for removing the president, but in a way that stayed close to the compromise position that appeared to attract support in July.
What we have of the full debate, from Madison’s notes, is astoundingly brief. It is essential reading. Here it is:
Col. Mason. 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.
He moved to add after “bribery” “or maladministration.” Mr. Gerry seconded him—
Mr. Madison. So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr. Govr Morris., it will not be put in force & can do no harm—An election of every four years will prevent maladministration.
Col. Mason withdrew “maladministration” & substitutes “other high crimes & misdemeanors” agst. the State.52
That’s it.
Remarkably, there was apparently no discussion of just what “other high crimes and misdemeanors” meant. Those words seem to be a bit like the cavalry, coming at the end to save the day. By the way, Mason did not just make up the word “maladministration.” It was used in the Pennsylvania constitution, where it was, in fact, the only impeachable offense. Vermont had mimicked that approach, and as noted, Massachusetts and New Hampshire also used the term, which referred to endangerment of the public good.53 To contemporary ears, however, Madison’s objection seems convincing, and apparently it was to eighteenth-century ears as well.
After Mason offered his seemingly narrower phrase, the text passed by a vote of 8 to 3. Just for clarity, there was an additional change in the text. To remove ambiguity, the words “against the State” w
ere changed to “against the United States.”54 In either case, the clear goal was to ensure that impeachment would be designed for offenses against the public as such, suggesting that we are speaking of abuses of official power (consistent with the American understanding of impeachment as it had evolved over time).
With respect to the grounds for impeachment, there was a final wrinkle. The draft was submitted to the Committee on Arrangement and Style, which deleted those clarifying words “against the United States.”55 Was the deletion designed to broaden the legitimate grounds for impeachment? That is extremely unlikely. As its name suggests, the Committee on Style and Arrangement lacked substantive authority (which is not to deny that it made some substantive changes), and it is far more likely that this particular change was made on grounds of redundancy. Hence the impeachment clause, in its final incarnation, was targeted at “high Crimes and Misdemeanors’’—period.
Who Impeaches? Who Convicts?
All the while, the delegates were exploring the institutional question: Who’s going to be in charge of impeachment, anyway? And who’s going to convict, and thus ensure removal from office? These were tough questions. Madison said that establishing where to try impeachment ranked “among the most puzzling articles of a republican Constitution.”56
The major role might be played by federal courts, which would of course be accustomed to conducting trials. Alternatively, the House of Representatives might be authorized to impeach, while the Supreme Court might conduct the trial of impeachments. James Madison preferred that solution, and it stayed in a draft of the Constitution into August. In September, some delegates thought that the Convention should give the Senate the power to try impeachments. On September 8, Madison strenuously objected that, under such an approach, the president would be “improperly dependent” on the Senate in the event of “any act which might be called a misdemeanor.”57 He continued to favor the Supreme Court.
For his part, Gouverneur Morris argued that the Senate would be best, for “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes.”58 He feared that in light of the fact that the president appointed members of the Supreme Court, its members “might be warped or corrupted” if they tried impeachments.59 Morris’s position prevailed before the Convention, evidently on the theory that it was the least bad of the various imperfect solutions. An important wrinkle was the requirement, for conviction, of a two-thirds majority in the Senate—to ensure that conviction would occur only if there were something close to a consensus that it should.
As you might have noticed, the institutional arrangement can do the work of the legal standard, and vice versa. If you wanted to protect the president from unjustified impeachments, you could choose a pretty low standard (say, “neglect of duty”), but accompany it with a system of institutional constraints, ensuring that the system would never find that the standard had been met.
Revealingly, the Constitution chooses both a high standard (high crimes and misdemeanors) and institutional constraints (participation of two branches, and the two-thirds requirement for conviction in the Senate). At the Convention, the delegates apparently did not discuss that fact, but it is unmistakable. After the fact, Hamilton made it clear that he knew exactly what had been done:
assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches. As the concurrence of two-thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.60
Let’s underline his point. We the People can oust a president, if we insist, but we have to run the gauntlet. By the way, the great French theorist Alexis de Tocqueville disagreed with Hamilton on this point. He thought that because the penalties for impeachment and conviction were so weak (consisting only of removal from office), the device would be used often. Score one for Hamilton.
Questions Answered
Because of the absence of discussion of the meaning of “high crimes and misdemeanors,” the debates leave important questions unanswered. But they do rule out two positions.
The first would allow the House and Senate to tell the president whenever they liked: “You’re fired.” Sherman embraced that idea, but Madison did not. Nor did Morris or Mason.61 The second would restrict the grounds for impeachment to treason, bribery, and corruption, and thus allow the president to commit “many great and dangerous offenses.” Mason did not want that, and Madison agreed.62
To see what they agreed about, we need to understand Mason’s brilliant, compressed argument. He referred to the narrow scope of treason as defined in the Constitution, and he had a point. The Constitution says, “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” That sentence leaves real ambiguity, but you could imagine forms of disloyalty and corruption that would fall well short of “levying War” against the United States, or “adhering to their Enemies, giving them Aid and Comfort.”
Mason’s concern about the definition of treason helps to explain his reference to Hastings—Warren Hastings, that is, Britain’s Governor General of India, who had been subject to a widely publicized, seven-year-long impeachment trial. The great Edmund Burke, who conducted the prosecution, charged Hastings with exercising arbitrary power, disregarding treaty obligations, selling favors, and engaging in fraud and corruption in making contracts. Hastings was acquitted, but Mason’s point was apparently convincing to the delegates: if a president did the kinds of things that Hastings did, he should not be able to retain office, even if neither treason nor bribery was involved.
Mason also emphasized that the U.S. Constitution forbids “bills of attainder,” which are acts of the legislature singling out one or more people and finding them to be guilty of a crime, without benefit of trial. In England, bills of attainder were permissible, but under the founding document, Congress is prohibited from ruling, by law, that a crime has been committed (by the head of some major company, the leader of a labor union, or the president). The delegates agreed that trials are needed and that guilt must be determined by courts, not legislatures. Mason did not contest that principle, but he insisted that it created a problem, because it deprived Congress of an important tool with which to contest presidential wrongdoing. In the absence of that tool, the grounds for impeachment had to be broadened beyond treason and bribery.
When Mason withdrew the term “maladministration” and substituted “high crimes and misdemeanors,” he appeared to think that the phrase would simultaneously meet both Madison’s concern and his own. Whatever the precise meaning of “high crimes and misdemeanors,” the term includes “great and dangerous offenses.”63 That’s important.
At this point, you might still be wondering, along with some of the delegates, about why the separation of powers and the presidential election cycle aren’t enough. If the real problem is one of accountability and the avoidance of monarchy, doesn’t the rest of the Constitution do the job? After all, Congress makes the laws, and the president is obliged to take care that the laws are faithfully executed. He’s elected, and once he’s in office, he’s hardly there for eternity. What does impeachment deliver that cannot be provided through other means?
From the standpoint of American history, that’s a fair question. As we will see, impeachment has been exceedingly rare; if we focus only on presidents, we have a really small sample. But the founding generation insisted on the importance of taking precautions against unlikely scenarios. They were acutely concerned about the risk of serious abuse in year one, two, three, or four of a presidency.
They also knew about the value of deterrence. Consider the old tale of the Sword of Damocles, about which it was said, �
�The value of the sword is not that it falls, but rather, that it hangs.” The importance of the sword of impeachment is that it sometimes falls. But for We the People, it is also important that it hangs.
chapter 4
What We the People Heard
While the debates in the Constitutional Convention are profoundly illuminating, they were kept secret during the ratification process. That means that the people who ratified the Constitution had no access to those debates.1 In this light, there is a strong argument that if we really want to know the meaning of the impeachment provision, we should focus on the public ratification debates, which help explain how We the People understood the document.
In any effort to answer questions of interpretation, the constitutional text has priority. But the phrase “high crimes and misdemeanors” does not have a self-evident meaning, and the English understanding, while helpful, is far from conclusive. As we have seen, the Americans had been developing their own, distinctly republican understandings of why and when to remove high-level officials. What is more important is that those who defended the Constitution, and tried to explain what it meant, spoke of impeachment in ways that fit exceedingly well with the views of Madison and Mason, and the ultimate drift of the discussions at the Constitutional Convention.
The idea of “great and dangerous offenses” is an excellent shorthand for the views of the ratifiers—at least if we understand such offenses as including egregious abuses or misuses of official authority. At the same time, bad decisions, or politically objectionable decisions, are not sufficient grounds for impeachment, even if much of the nation is up in arms. The United States, unlike some other democracies, does not allow votes of no confidence.
Impeachment- a Citizen's Guide Page 5
