Do They Dare to Impeach?

What history tells us about the case against Trump

Feisal G. Mohamed
An old document discussing impeachement

James Madison’s notes of the Constitutional Convention, September 8, 1787. From the Constitutional Sources Project

In a minute there is time
For decisions and revisions which a minute will reverse.

I like the word “impeachment.” It’s adorable. I like its perky amphibrachic rhythm, and how the accent falls on the word “peach.” I imagine a magical world where scofflaws are punished by being stuffed into an enormous pitted fruit and rolled down a thoroughfare. (“Whoa, what happened to Larry?” “He got impeached.”) Pedants will note that the word has nothing to do with Prunus persica in any of its varieties, neither conflicted doughnut peach nor clean-shaven nectarine. If we ferret our way to Latin roots, we find that “impeach” is a cousin of the word “impede,” with both pointing toward impedio, to restrict as though placing a foot, pes, in fetters. That hardly seems so grave. Like a boot on a parked car.

If impeachment is a serious business, it is not for the reasons that will be offered by hyperventilating partisans as we get underway this week. Rather, it’s because it gets to the heart of balancing powers and the limits that ought to be imposed on the will of the people. Constitutional thinkers reveal their true colors when the subject of impeachment is raised: crypto-autocrats will squirm in their seats, and crypto-anarchists will be on the edge of them.

Legal theorists have often worried that the giddy mob and their giddier representatives are not to be trusted with the power to cashier their betters. In De legibus, Cicero somewhat grudgingly concedes that Rome’s plebeian tribunes are rightly entrusted with removing public officials: without access to this licit form of sacrificing officials, the people will turn to illicit forms, posing a much greater threat to stability. Machiavelli is much more sanguine about the power of the tribunes: because it is the aim of the plebeians to preserve their freedom, and the aim of senators to encroach upon it, the former are better placed to safeguard liberty. Eschewing Roman provenance, and with it the role of the plebs, the eighteenth-century English jurist William Blackstone argued that the English inherited impeachment from the ancient Germans, whose great council had the power to hold capital prosecutions of public officials. Blackstone makes this curious nod to ancient German practice in order to emphasize the role of the House of Lords in making the ultimate determination of guilt and limit the authority of the House of Commons to levying impeachment charges.

Fresh on Blackstone’s mind are the constitutional embroilments of the seventeenth century. The 1640s remain, and almost certainly will always be, England’s most active period of impeachment, and also, not coincidentally, a period when the House of Commons sought more fully to assert its constitutional role. Perhaps the most important impeachment of that era was that of Thomas Wentworth, Earl of Strafford, who had gained a reputation for arbitrary rule as lord deputy of Ireland. When it looked as though he might evade conviction by persuading the House of Lords that haphazard and arbitrary rule was quite normal for the crown’s emissary in Ireland, the Commons decided to shift course and passed a bill of attainder against him, a legislative act declaring guilt and imposing a sentence without trial. He was executed and, in good English fashion, immediately became the subject of a drinking ballad:

Though Wentworth’s beheaded,
Should any repine?
There’s others may come
To the block besides he.
Keep thy head on thy shoulders,
I will keep mine;
For what is all this to thee or to me?

Indeed, others did follow Strafford to the block, including William Laud, Archbishop of Canterbury, who, when his impeachment trial dragged on as trials do, likewise became the subject of a bill of attainder.

The framers of the U.S. constitution were well aware of this chapter in English history, and had their own anxieties about the disruptive potential of democracy. The Articles of Confederation, those measures forming a less perfect union—what would that look like?—do not mention impeachment at all. And the Constitution follows the English model in giving the power of charging impeachment to the House, but the power of conviction to the Senate. Final say on impeachment rests in the upper house because it is the chamber meant to embody the wisdom of the nation, meant to stand slightly apart from the hurly-burly of daily political life and its cacophony of competing interests. (Until the twentieth century, U.S. senators weren’t even elected by popular vote.) Of course, such a view is hard to square with the actual senators bumbling their way across our screens.

The Constitution, as we all know, limits impeachable offenses to bribery, treason, and “high crimes and misdemeanors.” Even that was more than the Framers initially intended. That odd phrase – “high crimes and misdemeanors” – only made its way into the Constitution thanks to the efforts of George Mason, who during the September 8, 1787 meeting of the Constitutional Convention argued against a draft stating that a president could be impeached only for treason and bribery. Mason wished to add “maladministration” to that list, precisely because, in a way recalling Strafford and Laud, the new constitution barred the legislative branch from passing bills of attainder: “as bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.” It’s worth paying attention to Mason’s reasoning here: with the power to pass a bill of attainder removed, he argued, the new constitution must allow greater scope for impeachment than its British forebear, lest the legislative branch be defanged.

James Madison was unpersuaded, and worried that “maladministration” was “equivalent to a tenure during the pleasure of the Senate.” So “high crimes and misdemeanors” was Mason’s compromise. This was likely, in his mind, a backdoor way of giving Congress the power to impeach for maladministration, since in the Commentaries, Blackstone declares that the “first and principal” form of high crime and misdemeanor “is the maladministration of such high officers, as are in public trust and employment… usually punished by the method of parliamentary impeachment.” That certainly describes the first impeachment leading to removal of a federal officer under the new Constitution, the 1803 proceedings against John Pickering, a judge appointed by Washington. Pickering had accepted no bribes, nor was he a traitor, nor was he accused of a crime. But he was given to intoxicated raving from the bench, and then-president Thomas Jefferson requested that the House impeach him. (Jefferson would later, in his autobiography, describe Pickering as “a habitual and maniac drunkard.”) Pickering failed to appear before Congress when called. His son gathered testimony from a group of acquaintances declaring the judge to have a fine legal mind and upright moral character. These friends also posited that the judge had descended into insanity, making him incapable of appearing to answer the charges against him. The Senate found Pickering guilty of high crimes and misdemeanors.

Particularly when bigger fish than a mad judge are at risk of being fried, the constitutional text as drafted will always provide senators with a natural justification for inaction: that in their wisdom they know “high crimes and misdemeanors” when they see them, and that it is their constitutional role to prevent that phrase from becoming a stalking horse for party politics. But the fact that Congress, and in particular the Senate, has been leery of the impeachment power does not mean it should be. Impeached officials are hardly shuffled off to the executioner’s block: the Constitution makes clear that impeachment ends the public career of a person unfit for public office, but does not pass criminal judgement. And reflecting on George Mason’s remarks might lead us rightly to see serious maladministration as a high crime and misdemeanor in itself. Not because we should slavishly adhere to the opinion of a founding father, but because Mason’s argument stands on its own merits: the legislative branch ought to be active in exercising its power to impeach any public official incapable of faithful public service.

“Maladministration” is about as charitable a term as one can use to describe the actions of the forty-fifth president. But it also should raise hard questions about his immediate predecessors. It could certainly describe the forty-third president’s lies to Congress and the world in order to launch a war of aggression, or that same president’s recourse to torture and indefinite detention. (Although the British Parliament’s power of impeachment is generally deemed to be moribund, there was an effort to revive it as a response to Tony Blair’s mendacity in the run-up to the Iraq War. Blair saved himself by resigning. The effort was led in part by an MP for Henley named Boris Johnson, who may now have other views on this point of constitutional law.) Maladministration might furthermore describe the forty-fourth president’s prosecution of a drone war through the CIA, precisely so that it could remain beyond congressional scrutiny.

In our moment the House’s decisions and revisions will inevitably be reversed by the Senate. So what is all this to thee or to me? Though for some time now the executive branch has been allowed to be the government’s enfant terrible, perhaps this particularly infantile President has provoked the first stirrings of a constitutional rebalancing. The high-pitched squeal emerging from Mason’s grave just might begin to ease to a gentle whirr.

Feisal G. Mohamed is a professor of English at Yale. Also trained in law, he is the author, most recently, of Sovereignty.
Originally published:
January 23, 2020


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