It is, perhaps, the nature of those who study the past to be slightly behind the times – by definition, it’s tough to get an historical perspective on current events – but as your self-appointed resident historiorantologist, I felt an obligation to dig up a few buried blockquotes and some misplaced pieces of context on the matter of presidential impeachment nonetheless. What I uncovered reaffirmed and strengthened my personal opinion that it is our Constitutional duty to see the current resident of the White House impeached - and in the finest tradition of throwing gasoline on a dying fire, I’d like to share my findings with you all tonight.
So join me, if you will, in the Cave of the Moonbat, for a brief look at the origins of impeachment. Presented also for the consideration of our People-Powered community will be the opinions of Alexander Hamilton, James Madison, Joseph Story, and Barbara Jordan, who have much to say regarding what the 110th Congress ought to do...
Historiorant:
Alert Cave-dwellers will note that there’s no "History for Kossacks" title/tag this evening. This is purposeful, and is meant to protect the integrity (such as it is) of the HfK "label"; I want to reserve that name for diaries in which the primary purpose is to inform - in this one, the purpose is to persuade. And history, as we all know, can be very persuasive...
The Duels of Lords and Commoners
Way back in medieval England, early political theorists came to the stunning realization that while government officials will occasionally commit crimes so injurious to the citizenry that they ought to be removed from office, not all of them warranted a Roman-style removal from office (q/v the impeachment of Julius Caesar:
Prior to the period of Restoration after the English Civil War (mid-late 17th century), the House of Lords had exclusivity in the impeachment game, on the basis that only nobles should put other nobles on trial – members of the House of Commons would have to be satisfied with justice by jury, like all the other, um, commoners. The lower house finally asserted its right to impeach members of the peerage in 1681, and Parliament’s fans of heredity office have oh-so-graciously (if grudgingly) permitted themselves to be judged by their inferiors ever since.
The use of the power to impeach has gone through all the fads and phases one would expect of a three-and-a-half-century-old legal concept. During the 15th and 16th centuries,
bills of attainder, which authorized the targeted persecution of select groups of dissenters, had been all the rage. They fell out of favor during Parliament’s power struggles with James "Jamestown" the First, who used the "kingly approval" requirement to veto BoAs of which he didn’t approve. Impeachment, which did not require the king’s John Hancock, thus became the primary weapon of the enemies of royal cronies.
Historiorant: As far as tools for persecuting ill-defined groups of people under vague, far-reaching definitions go, bills of attainder are the Holy Grail for the power-hungry unitary executive. Better legal minds than mine might be able to make the case the some of the crap G.W. Bush has signing-statemented qualify as bills of attainder; if so, he’s broken the law, as they’re banned outright in the Constitution (Art. 1, Sec. 9, para. 3). Here’s what a guy who knew about this kind of stuff had to say about them:
"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment."
William H. Rehnquist, The Supreme Court, page 166; via techlawjournal
Though they might have been the first to proclaim the power of a legislature to remove from office those officials who commit "high crimes and misdemeanors," the Brits don’t use it so much anymore – the last time the House of Lords delivered an impeachment verdict (acquittal, in this case) was in 1848, over some secret treaty/Russian tsar thing. The U.S. Congress hasn’t been all that more active – the House has initiated impeachment proceedings against a total of 62 "federal officials" (including judges) in the 220 or so years we’ve been operating under the Constitution, and only 17 of those resulted in full-fledged trials.
Legal mumbo-jumbo and Constitutional jibber-jabber
Section 4. 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.
US Constitution, Art. II, Sec. 4
More on this masterpiece of legalistic vagueness in a minute – at least Article 1 spells out the actual procedure in a little more detail:
Clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
Art. I, Sec. 2
Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Art. I, Sec. 3, via Emory Law
This is vintage Founding Fathers: grant an enormous power while simultaneously playing coy with its definitions and boundaries, then helpfully provide an exact set of procedures for how to implement it. The language has bedeviled would-be impeachers ever since: As then-Representative Gerald Ford presciently (and ironically) observed in 1970 - four years before Nixon’s impeachment-ducking resignation elevated him to the presidency - "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."
Apparently, it’s been that way since the beginning. Gary Schmitt and Joseph Bessette, in this excellent 1998 article, describe the debate in the 1787 Constitutional Convention:
How and why was the phrase "other high Crimes and Misdemeanors" added to the Constitution? Here the record is relatively clear. As the Constitutional Convention was drawing to a close in September 1787, Virginia delegate George Mason objected to the fact that the only grounds listed in the draft constitution for impeaching a president at that point were "treason" and "bribery." This left any number of "great and dangerous offenses," including efforts "to subvert the Constitution," uncovered. It was, Mason contended, incumbent on the members of the Convention "to extend the power of impeachment" to reach these other possible offenses. Thus, he suggested adding "maladministration." To this, however, fellow Virginian James Madison objected: "maladministration" was too "vague a term." It was a license for the Senate to remove presidents at will, potentially rendering the president a mere servant of the Congress. In response to Madison's objection, Mason suggested that the phrase "other high crimes & misdemeanors against the State" be added instead. Apparently without debate, the delegates accepted Mason's new language by a vote of eight states to three. A few days later the language was finalized after the Committee of Style dropped the phrase "against the State." Based on this brief record, all one can say for sure is that those who wrote the Constitution wanted a president to be impeachable for offenses or misbehavior in addition to treason and bribery but not for all acts that might be viewed as bad administration of the office.
(emphasis mine – u.m.)
Though the President is given a lot of leeway in which to screw up, early legal scholars found that the public’s patience with poor leadership need not be infinite. The same article, in discussing Joseph Story’s 1833 compendium, Commentaries Upon the Constitution of the United States, notes:
The impeachment jurisdiction of the House and Senate, wrote Story, "is to be exercised over offences, which are committed by public men in violation of their public trust and duties." Not amenable to precise legal definition, such offenses "must be examined upon very broad and comprehensive principles of public policy and duty." Story also referred to impeachable offenses as "a breach of duty" and as "acting grossly contrary to the duties of . . . office."
Claremont.org
A Rant for the Ages
The fact that Madison (who later unwisely led the US into an intractable conflict with bleak odds for long-term success, btw) didn’t want to include certain eye-of-the-beholder type words shouldn’t be taken to mean that he was in favor of yanking the teeth out of impeachment; he just thought "maladministration" was too subjective a term, that it would be best to use something a tad more objectively legal-sounding. Indeed, his own non-canonized remarks on what and when to impeach were cited by Congresswoman Barbara Jordan in her magnificent opening statement to the House Judiciary Committee on July 25, 1974:
Impeachment criteria: James Madison, from the Virginia ratification convention. "If the president be connected in any suspicious manner with any person and there be grounds to believe that he will shelter him, he may be impeached."
Makes one wonder what Congresswoman Jordan – and President Madison – might make of a Bush pardon of an investigated-and-indicted Karl Rove? Or Rummy? Or any of a number of other conspirators whose Fifth Amendment stances before investigative committees will be bought with, and bolstered by, a promise of a Presidential pardon?
Jordan’s speech was about Nixon and Watergate, of course, but what makes it a studied classic is its timeless appeal to an underlying American value – that all are equal before the law. It’s an idea that’s been at the center of our consciousness since the birth of our great nation, and the Congresswoman brought other founder’s quotes to prove it:
Justice Story: "Impeachment is intended for occasional and extraordinary cases where a superior power acting for the whole people is put into operation to protect their rights and rescue their liberties from violations."
We know about the Huston plan. We know about the break-in of the psychiatrist's office. We know that there was absolute complete direction in August 1971 when the president instructed Ehrlichman to "do whatever is necessary." This instruction led to a surreptitious entry into Dr. Fielding's office.
"Protect their rights." "Rescue their liberties from violation."
And to think: she was talking about a handful of bunglers breaking into the office of a single shrink. Almost makes the myriad violations of liberties under the USA PATRIOT Act seem insignificant, no?
The South Carolina ratification convention impeachment criteria: those are impeachable "who behave amiss or betray their public trust."
Yellowcake uranium, WMD, Valerie Plame, Osama "still-at-large" bin Laden, Katrina response, the Neverending War – really, at what point will the Decider cross the Nixon Line and finally enter the realm of those "who behave amiss" or betray our trust?
James Madison again, at the Constitutional Convention: "A president is impeachable if he attempts to subvert the Constitution."
(snip)
If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that eighteenth century Constitution should be abandoned to a twentieth-century paper shredder. Has the president committed offenses and planned and directed and acquiesced in a course of conduct which the Constitution will not tolerate? That is the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision."
Damn straight, Congresswoman. Couldn’t have said it better myself.
But They’ll Call Us Partisan!
Alexander Hamilton was a couple of hundred years ahead of today’s naysayers. In Federalist Paper No. 65, he wrote:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, 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.
Avalon Project at Yale Law School
Hamilton essentially trusted that the weightiness of impeachment – as well as the difficulty of initiating one – would compel lawmakers to rise above partisanship. He was not, of course, naïve enough to believe this would always be the case; in Federalist 65, he goes on to warn, "it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.
Hamilton was not the sort to throw in the towel on doing what’s right simply because the situation – or even the Constitution itself – was not tweaked to absolute perfection and certain victory. In the closing paragraph of Federalist 65, he defends the ratification of the document with the tried-and-true method of pointing out the obvious:
If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.
Avalon Project at Yale Law School
Woodrow Wilson (who overcame the handicap of being a pointy-headed intellectual to lead our nation through a truly global conflict in which the death toll was, shall we say, slightly higher than that of the War on Terra) had this to say about the political nature of impeachment, as well as its one remedy:
"nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overgrow party interest may secure a conviction; but nothing else can."
Quoted from text of Rep. Jordan’s speech of 7/25/74
Now ask yourself: Is there a decent chance that investigations would reveal that George W. Bush has committed offenses that could give rise to that type of indignation? I, for one, am willing to wager that the answer is "yes."
But It’s Never Worked Before!
Two U.S. Presidents have found themselves hauled before the Senate to stand trial for impeachment, and in both cases were acquitted. Also in both cases, the people who brought the charges had strayed over the lines mentioned by Hamilton and Story – the impeachments of Andrew Johnson and Bill Clinton are case studies in the misuse of Congressional power.
Johnson, a Tennessean who hated Southern aristocrats, newly-emancipated ex-slaves (he opposed the 14th Amendment, and especially the Radical Republicans in Congress, found himself inheriting Abraham Lincoln’s cabinet upon the latter’s untimely demise. Among these Cabineteers Who Wouldn’t Leave was the Radical Republican-supporting, Andrew Johnson-hating Secretary of War, Edward Stanton, whose job his allies in Congress moved to protect with the passage of the Tenure of Office Act in 1867. Basically, the act told Johnson that he couldn’t fire anyone without Senate approval, so he vetoed it – only to see a Congressional override put the law into effect anyway.
Never one to back down from a fight, Johnson (who was tasked with reintegrating the entire war-devastated South into the Union, but of course faced none of the considerably greater challenges that have stymied the Decider in getting a single city rebuilt after a storm) instigated a showdown by "illegally" firing Stanton. Since he had violated a duly weighed and considered Law of the Land – and since such things were simply intolerable in an era of squeaky-clean ethics (not!) like the mid-1800s – the Radical Republicans in the House drew up the Articles and sent them on to the Senate. There, the system worked as Hamilton had envisioned (even if by a pretty narrow – read: one vote – margin); respect for the integrity of the Constitution carried the day. Of course, the Republicans in the Senate did rather overplay their hand, which helped Johnson in the end. According to the Avalon Project:
To sum up this feature of the proceeding--the Republican majority of the Senate placed themselves and their party in the attitude of prosecutors in the case--instead of judges sworn to give the President an impartial trial and judgment that their course had the appearance, at least, of a conspiracy to evict the President for purely partisan purposes, regardless of testimony or the facts of the case-that public animosity against Mr. Johnson had been manufactured throughout the North by wild and vicious misrepresentations for partisan effect--that practically the entire Republican Party machinery throughout the country was bent to the work of prosecution.The party cry was "Crucify him!" "Convict him anyway, and try him afterwards!" With rare exceptions, the Republican Party of the country, press and people, were a unit in this insensate cry.
They were ready to strike, but not to hear.
There can be but one conclusion from these premises, established by the record of the trial--that the entire proceeding, from its inception in the House of Representatives to its conclusion in the Senate, was a thoroughly partisan prosecution on the part of the majority in both Houses, and that the country was saved from the shameful spectacle, and the dangerous consequences of such a proceeding, by the intervention and self-sacrifice of a few gentlemen who proposed to respect the obligation of their oath, and give Mr. Johnson, so far as in their power, a fair trial and judgment--and not having had such a trial--to give him the benefit of what he claimed he could prove in his own behalf and was not permitted to--and a verdict of "Not Guilty," regardless of consequences to themselves.
What every member of the Court had sworn to do was "impartial justice" to Andrew Johnson, and nothing less. The Counsel on neither side had taken that oath, but the Court had; and its performance of that oath was impossible without possession of all the information relating to and bearing upon the case that it was reasonably possible to obtain. That is the essential ingredient and characteristic of a fair trial.
THAT ESSENTIAL INGREDIENT OF JUDICIAL FAIRNESS WAS NOT SHOWN TO MR. JOHNSON IN THIS CASE BY THE REPUBLICAN MAJORITY OF THE SENATE, as the official record of the trial clearly establishes. It was an ill-disguised and malevolent partisan prosecution.
[History of the Impeachment of Andrew Johnson, Ch 12 (emphasis in bold mine – u.m.)
Since essentially the same assessment can be made about the impeachment of Bill Clinton, and in the interest of brevity, I’ll spare the gentle reader a moonbatification of that particular travesty of American justice. Suffice to say that, just as in Johnson’s time, the Senate and the American people saw through the partisan smokescreen, and even those who personally and politically didn’t like the Big Dawg rallied, in the end, to support the integrity of the law itself - not the tortured and self-righteous interpretations of it that were emanating from the House.
the more things change, the more they stay the same...
This may be naïve of me, but I still believe that the American people can tell a partisan witch hunt from an earnest attempt to do right by the laws of our forebears. That the two presidential impeachments actually tried in the Senate resulted in acquittals was not a result of a failure of the system; the acquittals came about because the people recognized that the system was being toyed with.
One Moonbat’s Perspective
Years ago, back when the Russians were ten foot tall and bulletproof, I served as a military policeman in the largest community of Americans outside the United States. My job entailed depriving people of their normally-guaranteed freedoms, collecting data and dirt on suspicious persons (and I had wide discretion in determining what and who was "suspicious"), and occasionally employing violence to compel the submission of an unruly miscreant. Though I did not derive pleasure from these things – they are, in fact, the very reason I didn’t pursue a career in law enforcement after I got out – I was very good at what I did.
Basically, there were two reasons for this dichotomy, and both are related to why I believe that investigations and impeachment are not only desirable courses of action when the 110th Congress is seated, but the obligation of all who would live by the principles ensconced in the US Constitution.
First, I’d given my word that I’d spend four years in the military, and that while I wore the uniform, I would do what I was told to do to the utmost of my ability. Sometimes that meant keeping the traffic flowing around some horrific accident scene on the autobahn, sometimes it meant throwing somebody’s life into convulsions because I happened to catch them driving drunk – either way, it was my job, and I did it as best I could. When those Congressmen take their Oath, they are committing themselves to do a job, no matter how unpleasant that job may turn out to be.
The second reason is a little more complex, but has at its roots in the same spirit that prompted supporters of the Constitution to say this at the North Carolina convention on ratification:
"No one need be afraid that officers who commit oppression will pass with immunity."
I have to think those early Constitutionalists meant more by this statement than a simple reassurance for cold-footed lovers of the Article of Confederation. In it, I see a promise to the future; a legacy we are obliged to carry on, a higher order to uphold - political considerations be damned. Virtually every drunk driver I ever took into custody had a reason why I shouldn’t, or tried to get out of it somehow. Occasionally someone would physically resist (bad idea), but more often, suspects would try to pull rank, issue vaguely-worded threats and explicitly-phrased insults, or make appeals to my sense of compassion – all of which I had to learn to ignore in deference to the role I served in the legal system. My duty was to keep drunks off the roads, and if that meant putting the cuffs on a colonel and suffering retaliation as a result, then so be it: I was not permitted the luxury of interpreting the law to my own advantage.
That’s why I like the aggressively reassuring tone of that North Carolina quote: At its very core is the assumption that the Constitution is a higher law than that of any party, or any individual. In this case, I believe that higher law compels us to seek the impeachment of a President who has disregarded the documents which form the very foundation of our Republic.
Uber-interested speleohistorians can also find entrances to the Cave of the Moonbat at Progressive Historians and Never In Our Names.