The Federal Impeachment Process: A Constitutional and Historical Analysis, Third Edition - Softcover

Gerhardt, Michael J.

Softcover

ISBN 10: 022655483X ISBN 13: 9780226554839

Publisher: University of Chicago Press, 2019

Synopsis

As President Trump and Congressional Democrats battle over the findings of the Mueller report, talk of impeachment is in the air. But what are the grounds for impeaching a sitting president? Who is subject to impeachment? Is impeachment effective as a safeguard against presidential misconduct? What challenges does today’s highly partisan political climate pose to the impeachment process, and what, if any, meaningful alternatives are there for handling presidential misconduct?

For more than twenty years, The Federal Impeachment Process has served as the most complete analysis of the constitutional and legal issues raised in every impeachment proceeding in American history. Impeachment, Michael J. Gerhardt shows, is an inherently political process designed to expose and remedy political crimes—serious breaches of duty or injuries to the Republic. Subject neither to judicial review nor to presidential veto, it is a unique congressional power that involves both political and constitutional considerations, including the gravity of the offense charged, the harm to the constitutional order, and the link between an official’s misconduct and duties. For this third edition, Gerhardt updates the book to cover cases since President Clinton, as well as recent scholarly debates. He discusses the issues arising from the possible impeachment of Donald Trump, including whether a sitting president may be investigated, prosecuted, and convicted for criminal misconduct or whether impeachment and conviction in Congress is the only way to sanction a sitting president; what the “Emoluments Clause” means and whether it might provide the basis for the removal of the president; whether gross incompetence may serve as the basis for impeachment; and the extent to which federal conflicts of interest laws apply to the president and other high ranking officials.

Significantly updated, this book will remain the standard work on the federal impeachment process for years to come.

About this title

About the Author

Michael J. Gerhardt is the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law in Chapel Hill.

Excerpt. © Reprinted by permission. All rights reserved.

The Federal Impeachment Process

A Constitutional and Historical Analysis

By Michael J. Gerhardt

The University of Chicago Press

Copyright © 2019 Michael J. Gerhardt
All rights reserved.

ISBN: 978-0-226-55483-9

Contents

Preface to the Third Edition, 
Acknowledgments, 
PART I: THE HISTORICAL ORIGINS OF THE FEDERAL IMPEACHMENT PROCESS, 
CHAPTER ONE The Impeachment Debates in the Constitutional Convention, 
CHAPTER TWO The Impeachment Debates in the Ratifying Conventions, 
PART II: TRENDS AND PROBLEMS IN IMPEACHMENT PROCEEDINGS, 
CHAPTER THREE Impeachment Proceedings in the House of Representatives, 
CHAPTER FOUR The Senate's Role in the Federal Impeachment Process, 
CHAPTER FIVE Impeachment Issues Involving Congress and the Other Branches, 
CHAPTER SIX Making Sense of the Federal Impeachment Process, 
PART III: CLARIFYING THE CONSTITUTIONAL ASPECTS OF THE FEDERAL IMPEACHMENT PROCESS, 
CHAPTER SEVEN The Scope of Impeachable Officials and Applicable Punishments, 
CHAPTER EIGHT Impeachment as the Sole Means of Disciplining and Removing Impeachable Officials, 
CHAPTER NINE The Scope of Impeachable Offenses, 
CHAPTER TEN The Proper Procedures for Impeachment Proceedings, 
CHAPTER ELEVEN Judicial Review of Impeachments, 
PART IV: IMPEACHMENT REFORMS, 
CHAPTER TWELVE Proposed Procedural Reforms for Judicial Impeachments, 
CHAPTER THIRTEEN Proposed Statutory Changes and Constitutional Amendments to the Impeachment Process, 
PART V: PRESIDENTIAL IMPEACHMENT IN THE AGE OF CLINTON AND TRUMP, 
CHAPTER FOURTEEN Lessons from President Clinton's Impeachment and Acquittal, 
CHAPTER FIFTEEN Impeachment and President Trump, 
Notes, 
Bibliography, 
Bibliography Addendum, 
Index, 

CHAPTER 1

THE IMPEACHMENT DEBATES IN THE CONSTITUTIONAL CONVENTION

Debates about impeachment in the United States are older than the U.S. Constitution. Prior to the drafting and ratification of the federal Constitution, there were vast differences in state constitutional provisions regarding the officials who would be subject to, the timing of, grounds for, and the authorities empowered to conduct or try impeachments. These state procedures were in turn influenced by the English experience with impeachment from the thirteenth through the eighteenth centuries.

Many scholars have closely examined the history of impeachment prior to 1787. Although these studies are not all without problems, they are of limited interest to contemporary students of impeachment, because the framers established a special impeachment mechanism in the Constitution that reflected their intention to differentiate the newly proposed federal impeachment process from the English and state experiences with impeachment prior to 1787. This chapter focuses on the major discussions of impeachment among the delegates at the constitutional convention, while the next chapter examines the ratification debates about impeachment. These chapters show the basic concerns of the framers' generation regarding impeachment. Subsequent chapters use other historical material to illuminate the fundamental aspects of the federal impeachment process, particularly with respect to impeachment issues of contemporary concern.

To be sure, the debates over impeachment at the constitutional convention must be put into perspective. The convention delegates recognized that their views on the meaning of the Constitution mattered less than the opinions of the ratifiers. The convention delegates took this position because they believed that the Constitution would take effect only if the American people accepted it and that the public's only chance to review and debate the proposed Constitution occurred during ratification. To prevent their own views from dominating ratification, the delegates decided shortly after the beginning of the constitutional convention to conduct their deliberations in secret. The delegates decided not to call the "yeas" and "nays" by delegate name in order to encourage each other to speak candidly and to avoid playing to the press. Instead, the votes were recorded only by states. To make news leaks more difficult, delegates were allowed to inspect the journal of the proceedings but were not permitted to make a copy of any of its entries. The delegates also agreed that "nothing spoken in the House be printed, or otherwise published or communicated without leave." Moreover, to prevent any unauthorized entry, the convention placed sentries both inside and outside its meeting place.

These precautions ensured that the people who publicly discussed and ratified the new Constitution had no access to any of the notes on the constitutional convention. Indeed, the man who took the most copious notes of debates at the constitutional convention, James Madison, did not publish his notes until many years after the ratification of the Constitution. Madison objected for several reasons to relying on the convention debates to guide constitutional interpretation: his awareness of the framers' desire to keep the convention's proceedings secret from the ratifiers; various defects in the historical record, including his having given only an abbreviated account of the proceedings (and possibly having rewritten or revised portions of his notes after the convention); and the status of the ratifiers as the genuine sources of the Constitution's authority. Accordingly, he urged later generations to look "for the meaning of [the Constitution] not in the General Convention which proposed, but in the State Conventions which accepted and ratified it."

Nevertheless, the early debates and origins of the federal impeachment process command our attention because they are inherently interesting and provide insights into the creative process of framing the Constitution, and perhaps the general public's understanding of the Constitution's language at or around the time of the framing and ratification. The debates may help modern students of the Constitution figure out what certain words may have meant to the framers and ratifiers. If nothing else, the constitutional and ratification convention debates provide a unique glimpse into the context from which the impeachment clauses sprang.

Indeed, the historical record on the federal impeachment process is relatively clear on several matters of current interest. To begin with, all of the delegates principally involved in the impeachment debates in the constitutional convention were familiar with state impeachment procedures at that time; and the most influential speakers — Edmund Randolph, James Madison, George Mason, William Paterson, Hugh Williamson, James Wilson, Benjamin Franklin, Elbridge Gerry, Rufus King, Gouverneur Morris, Alexander Hamilton, and Charles Pinckney — were each well informed about the history of impeachment in England and their respective states. Moreover, the convention used as its model the basic features of the most popular state impeachment systems — particularly the common provision that only officers could be impeached for criminal acts in office, with removal and disqualification as the only sanctions — rather than the English practice under which the Parliament could impeach public officials and private citizens for so-called political crimes — offenses or conduct that injured the nation in some way — and, upon their convictions, impose various criminal penalties, including death.

Indeed, there were five particular issues relating to impeachment that elicited some significant discussion in the constitutional and ratification conventions. Two of these issues — the proper forum for impeachment trials and the appropriate means for judicial removal — overlapped, because they both involved similar aspects of each of the four main plans before the constitutional convention.

For example, Edmund Randolph made the first significant suggestion regarding the proper court for impeachment trials by suggesting as part of his proposed Virginia Plan the creation of a national judiciary, which would hold its offices during "good behavior" and have the power to impeach "any national officers." This plan became the order of business the next day when the convention resolved itself into a Committee of the Whole to begin serious deliberation. On the same day, Charles Pinckney of South Carolina proposed an alternative draft of a federal constitution, which was also referred to the Committee of the Whole. Randolph's resolutions became the focus of the convention's discussion and, as amended, the substance of the first report of the Committee of the Whole to the convention on June 13. Randolph and Madison agreed that the convention should give the power of impeachment to the national judiciary.

In the middle of June, William Paterson, who also was the attorney general of New Jersey, proposed the New Jersey Plan as an alternative to the Virginia Plan. The New Jersey Plan gave the national judiciary "the authority to hear and determine in the first instance on all impeachments of federal officers." It further provided that Congress could remove the executive upon the application of a majority of the state governors but it could not impeach. Shortly after the introduction of the New Jersey Plan, James Wilson of Pennsylvania contrasted the New Jersey and Virginia plans' treatments of impeachment. He noted that the Virginia Plan provided for the removal of officers upon impeachment and conviction by the federal judiciary, while the New Jersey Plan neglected to include impeachment by the lower house but instead provided for removal only through application of a majority of the state governors.

On June 18, Alexander Hamilton of New York entered the debate on the proper court for impeachments. He proposed a plan modeled on the British system and the New York Constitution. Under his plan, the chief executive, senators, and federal judges were to serve during good behavior. He further proposed that

[t]he Governor, Senators and all officers of the United States were to be liable to impeachment for maladministration and corrupt conduct; and upon conviction to be removed from office, and disqualified for holding any place of trust or profit — all impeachments to be tried by a Court to consist of the Chief or Judge of the Superior Court of Law of each state, provided such judge shall hold his place during good behavior and have a permanent salary.

While Madison in late July still pushed for the national judiciary as the body to be empowered to try impeachments, the Committee of Detail, responsible for putting all resolutions and suggestions into draft form, considered a compromise solution to allow trial "before the Senate and the judges of the federal judicial Court." But, on August 6, the committee released its official report proposing in part that the House of Representatives "shall have the sole power of impeachment" and that the president "shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court. ..." The committee further suggested giving the Supreme Court original jurisdiction of "the trial of impeachments. ..."

On August 27, the convention, at the request of Pennsylvania's Gouverneur Morris, postponed consideration of vesting the power to hold impeachment trials in the Supreme Court. Morris worried that the Supreme Court was unsuited for that purpose, "particularly, if the first judge was to be of the [P]rivy Council." John Dickinson of Delaware moved to provide that judges should serve "during good behavior" but "may be removed by the Executive on the application [of] the Senate and House of Representatives." Elbridge Gerry of Massachusetts seconded the motion, but Morris argued against Dickinson's motion on the ground that it was contradictory to "say that the Judges should hold their offices during good behavior, and yet be [removable] without a trial." Roger Sherman of Connecticut disagreed with Morris, noting that a similar provision was contained in the British statutes. James Wilson responded that such a provision was less dangerous in England because it was unlikely the House of Lords and the House of Commons would ever concur on judicial removal. But, "[t]he judges would be in a bad situation," Wilson warned, "if made to depend on every gust of faction which might prevail in the two branches of [the American] government." John Rutledge of South Carolina and Virginia's Randolph agreed with Wilson and objected to Dickinson's motion. When the motion came to a vote, only Connecticut favored it, while seven state delegations opposed it.

On September 4, the Committee of Eleven, which the convention commissioned to report on those parts of the Constitution that had been postponed or not yet acted upon, urged the convention to accept the proposal that "[t]he Senate of the United States shall have power to try all impeachments. ..." The committee agreed to vest the Senate with this power after concluding that the president would not be selected by the Senate but rather by a college of electors, thereby removing what the committee had perceived as the troublesome conflict of granting both the trial and appointment powers to the same body.

In the ensuing convention debate, Madison objected to the Senate as the forum for trying impeachments because it would make the president "improperly dependent" on the Senate "for any act which might be called a misdemeasnor [sic]." Madison proposed that the Supreme Court, acting either alone or in conjunction with another body, was the more appropriate forum. Morris favored the Senate, maintaining that "there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes. ..." He thought the Supreme Court "might be warped or corrupted" if it had the power to try impeachments, particularly in a case involving a president who had appointed any of its members. Pinckney agreed with Madison that empowering the Senate to try impeachments would make the president too dependent upon the legislature. Hugh Williamson of North Carolina argued that the Senate would be too lenient in presidential impeachments because it shared various powers with the president, while Sherman contended that the Supreme Court was an improper body for trying impeachments because the president appointed its members, at least some of whom might feel loyalty to him for having selected them.

The convention delegates ultimately agreed that the Senate posed the fewest problems of any of the various proposed trial courts. When the full convention voted on the Senate as the trial body for impeachments, only two state delegations — Pennsylvania and Virginia — dissented from the proposal to make the Senate the "sole" court for impeachment trials.

The third major issue regarding impeachment debated at the convention involved the impeachability of the president. Even though almost all state constitutions had provided that governors may be impeached, many delegates were concerned with impeachment as a check on the president. For example, on July 19, Morris had warned that the prospect of impeachment would "render the [president] dependent on those who are to impeach." The next day the convention engaged in its most extensive discussion of the propriety of presidential impeachment. Pinckney agreed with Morris's position, but George Mason of Virginia, James Wilson, Elbridge Gerry, William Davie of North Carolina, and Pennsylvania's Benjamin Franklin argued in favor of presidential impeachment. Davie considered it "an essential security for the good behavior of the Executive." Franklin pointedly remarked that history showed "the practice before this in cases where the chief Magistrate rendered himself obnoxious [was to make] recourse ... to assassination in [which] he was not only deprived of his life but of the opportunity of vindicating his character. It [would] be the best way therefore to 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." Madison thought it was "indispensable" to provide for presidential impeachment. Otherwise, he argued, the president "might pervert his administration into a scheme of peculation and oppression. He might betray his trust to foreign powers." Randolph added that "tumults and insurrections" would inevitably result if the Constitution provided no mechanism for punishing a president's abuse of power. Rufus King of Massachusetts took the position that impeachment was inappropriate in the case of an officer who served for a fixed term but would be appropriate in the case of the judiciary, since they would hold their offices during good behavior. Thus, in King's opinion, "[i]t is necessary therefore that a forum should be established for trying misbehavior." Near the end of the debate, Morris acknowledged that he had been convinced presidential impeachment was necessary for ensuring that the president would not be above the law. Following this discussion, the convention tentatively agreed to a clause providing for the president's removal for "malpractice or neglect of duty." On July 26, the convention reaffirmed the provision that the president shall be "removable on impeachment and conviction of malpractice or neglect of duty." At the end of the convention, only South Carolina and Massachusetts voted against making the president impeachable.

The fourth major debate pertained to the proper grounds for impeachment and the scope of impeachable offenses. Throughout the early convention debates on this issue, every speaker agreed that certain high-ranking officials of the new government should not have immunity from prosecution for common-law crimes, such as treason and murder. Many delegates envisioned a body of offenses for which certain federal officials could be impeached. They referred to "mal-" and "corrupt administration," "neglect of duty," and "misconduct in office" as examples of impeachable offenses and maintained that common-law crimes such as treason and bribery were to be heard in the courts of law. Paterson, Randolph, Wilson, and Mason each argued that the federal impeachment process should apply only to misuse of official power in accordance with their respective state constitutions and experiences. As late as August 20, the Committee of Detail reported that federal officials "shall be liable to impeachment and removal from office for neglect of duty, malversation, or corruption."

Yet, in its report on September 4, the Committee of Eleven proposed that the grounds for conviction and removal of the president should be limited to "treason or bribery." On September 8, Mason opened the discussion on this latter proposal by questioning the wisdom of limiting impeachment to those two offenses. He argued that "[t]reason as defined in the Constitution [would] not reach many great and dangerous offences." Mason further contended that "[a]ttempts to subvert the Constitution may not be Treason as ... defined" and that, since "bills of attainder ... are forbidden, ... it is the more necessary to extend the power of impeachments." Mason then moved to add "maladministration" in order to permit impeachment upon less conventionally defined common-law offenses. Gerry seconded the motion. Madison objected that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." Recalling an earlier debate on July 20 in which he had asked for more "enumerated and defined" impeachable offenses, Morris agreed with Madison. Mason thereupon withdrew his motion and substituted as the grounds for impeachment "bribery and other high crimes and misdemeanors," which he apparently understood as including maladministration. The motion carried without any further discussion of the new phrase by a vote of eight to three.

(Continues...)

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Edition details

• Publisher: University of Chicago Press
• Publication date: 2019
• Language: English
• ISBN 10: 022655483X
• ISBN 13: 9780226554839
• Binding: Paperback
• Edition number: 3
• Number of pages: 311