A Citizen's Guide to Impeachment Read online

  A CITIZEN’S GUIDE TO IMPEACHMENT

  Copyright © 2017 by Barbara A. Radnofsky

  First published by Melville House Publishing, September 2017

  Melville House Publishing

  46 John Street

  Brooklyn, NY 11201

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  8 Blackstock Mews

  Islington

  London N4 2BT

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  ISBN: 978-1-61219-705-0

  Library of Congress Cataloging-in-Publication Data

  Ebook ISBN 9781612197067

  Names: Radnofsky, Barbara Ann, 1956- author.

  Title: A citizen’s guide to impeachment / Barbara A. Radnofsky.

  Description: Brooklyn : Melville House, 2017. | Includes bibliographical references and index.

  Identifiers: LCCN 2017035521 (print) | LCCN 2017036541 (ebook) | ISBN 9781612197067 (reflowable) | ISBN 9781612197050 (paperback)

  Subjects: LCSH: Impeachments–United States. | BISAC: POLITICAL SCIENCE / Political Process / General. | LAW / Government / Federal. | POLITICAL SCIENCE / Constitutions.

  Classification: LCC KF4958 (ebook) | LCC KF4958 .R33 2017 (print) | DDC

  342.73/062–dc23

  LC record available at https://lccn.loc.gov/​2017035521

  eBook design adapted from printed book design by Fritz Metsch

  v4.1

  a

  CONTENTS

  Cover

  Title Page

  Copyright

  Introduction

  1. Origins of Impeachment Law

  2. Legal Principles and Processes of Impeachment

  3. Federal Impeachments in the United States

  Conclusion

  Notes

  Bibliography

  Acknowledgments

  About the Author

  INTRODUCTION

  In the United States, 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 law1 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”2—to deal with the “misconduct of public men,” as they focused on injuries done to “society itself.”3 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: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,5 Bribery, or other high Crimes and Misdemeanors.” U.S. Const. Art. II, Sec. 4.

  The special phrase “high Crimes and Misdemeanors” is lifted directly from ancient British impeachment law and forms the cornerstone of the U.S. impeachment process. It is a term (legally, a “term of art”) that bears no resemblance to what we know as “crimes” or “misdemeanors” today. It requires no charging of a crime, no intent to do a wrong,6 and no law-breaking. When presenting a case for impeachment, Congress may charge (and has charged) civil officers as acting with intent, treachery, criminal misconduct, and law-breaking, but the Constitution requires no proof of such—none—in order to impeach.

  The United States Congress has impeached and convicted officials regardless of their mental state—even a person conceded as “insane,” in the words of the nineteenth century, as well as persons capable under the law of forming intent. Congress has also impeached calculating, treasonous,7 corrupt, swindling, or profiteering officials who could substantially harm us.

  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;8 it’s not the motive or intent of the official. The greater the potential for harm, the greater the case for impeachment and removal.9

  This book traces American impeachment history from the country’s founding to today, using the nineteen 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.10

  So, while it’s important to understand that harm to society is the significant element emerging in the history of U.S. impeachment cases, it’s equally important to know what the Founding Fathers’ intentions were as they debated, crafted, and finalized the Constitution’s impeachment clause. The Constitution was written and adopted at a national convention in Philadelphia in 1787 and then became effective in 1788 as a result of votes in state ratifying conventions. The Founding Fathers recorded for posterity their intent to adapt the British law of impeachment, as they displayed—in articles, books, argument, and advocacy at Constitutional Convention debates and then on the floor of Congress—a sophisticated understanding of British history, law, and terminology adapted for use in American impeachment proceedings.

  ORIGINS OF IMPEACHMENT LAW

  In the twentieth century, scholars argued about whether they, or the public, needed any knowledge of British law in the context of impeachment. One school of thought has suggested that the writers of the Constitution, and the Constitution-ratifying convention delegates, lacked specialized knowledge of British law and, therefore, modern students of impeachment need no such knowledge either.11 These demonstrably incorrect assumptions, if believed, would rob us of understanding the intent and purpose of the Founding Fathers for use of the Impeachment Clause.

  January 4, 2018, marks the 250th anniversary of the 1768 publication in the Boston Gazette of Josiah Quincy, Jr.’s, article calling attention to English impeachments “for high treason in subverting the fundamental laws and introducing arbitrary power.” The article ended with “a ringing call to follow these examples” of impeachment actions.12

  Within two decades of the Boston Gazette’s publication, the United States of America had declared independence, fought and won a war against England, tried to exist under a “Confederation” of States, and then adopted a federal system to replace the states’ confederation. The new Constitution, revised and polished in Philadelphia at the Constitutional Convention, emerged with our current “Impeachment Clause.”

  In deciding on language and voting for the Impeachment Clause, the Founding Fathers relied on their experiences and expertise in English law and its application in America. Many Founding Fathers studied law in England as well as in the colonies; the colonials kept their libraries well stocked with books on British impeachment.13 They drew on more than book learning; the Founding Fathers knew impeachment firsthand from debating the concept in their state legislatures and drafting their state constitutions, which included state impeachment clauses. Colonial writers and practicing lawyers cited British impeachment trials.14 Thomas Jefferson and other colonial leaders read and relied in particular on British scholar Richard Wooddeson’s Lectures on the Laws of England, a published “series of highly regarded, well-attended, and widely publicized lectures on the law beginning in 1777.”15

  Wooddeson’s theme: Impeachment solves abuses of power hurting the community, which may not be solved in ordinary courts. Explaining centuries of British law and history, Wooddeson provided examples of impeachable offenses against those who “may abuse their delegated powers to the extensive detriment of the community, and at the same time in a manner not properly cognizable before the ordinary tribunals.”16 Wooddeson’s examples included impeachment for those who subvert fundamental laws, introduce arbitrary power, and betray trust, and “propound or support pernicious and dishonorable measures…to obtain exorbitant grants or incompatible employments…”17

  Although the English Parliament attempted to use impeachment to counter the absolute powers of the king or queen18 by targeting “fawning favorites” and making political statements against the monarchy’s complete authority,19 such efforts were hamstrung by the absolute ruler of Great Britain—who could dissolve Parliament on a whim.20

  The Founding Fathers used their knowledge of B
ritish impeachment law and their experiences under that ancient law to address many dangers they foresaw with their U.S. leaders, including the following high risks:

  1. Presidential incapacity or negligence;

  2. Presidential tyranny;

  3. Presidential corruption;

  4. Betrayal of trust by their president to a foreign power; and

  5. An overbroad law of treason, which could be abused by the government to terrorize its citizens and officials by determining “treason” after the fact.

  First, Founding Father and future president James Madison stated an “indispensable” need “for defending the community against the incapacity, negligence or perfidy [faithlessness21] of the Chief Magistrate” (a title later changed to “President”). Madison was crystal clear: negligence or loss of capacity must be subject to impeachment; he predicted that, with a single executive, loss of capacity or corruption was “within the compass of probable events; and either of them might be fatal to the Republic.”22

  Second, tyranny was a major concern for the colonists, who had included in the Declaration of Independence an impressive and lengthy list of acts of “absolute tyranny” by King George.23 The Constitution writers had firsthand knowledge of the dangers of abuse of power by the king and the whims and edicts of his governors and minions.24 The founders’ experiences and knowledge of English history raised the “specter of a president swollen with power and grown tyrannical; and fear of presidential abuses prevailed over frequent objections that impeachment threatened his independence.”25 Madison and other Founding Fathers expressed concerns that the chief executive of the United States might be transformed into a monarch.26

  Third, a great concern expressed by the Founding Fathers was corruption, as James Madison expressed above as potentially fatal to the Republic. Either negligence or corruption can lead to a fourth category—betrayal of trust—also a great concern of the Founding Fathers, including Convention delegate Gouverneur Morris, the author of the Constitution’s Preamble.27 Morris, initially skeptical of the need for impeachment, conceded he had changed his mind during constitutional debates. Morris bluntly addressed his concern that a president might betray the country by being bribed by a foreign power:

  He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.28

  To reinforce his point that even the most wealthy and powerful men could be bribed, Morris reminded his colleagues of a shocking discovery reported in the late seventeenth century: a secret deal concocted for the French king Louis XIV to pay large sums to the British king Charles II. In the 1670 Secret Treaty of Dover, the English king had agreed to assist with the destruction of the Dutch Republic, to someday convert to the Roman Catholic faith, and to cooperate in other concealed arrangements. Gouverneur Morris referred to the scandal as he addressed the vast wealth of one man who virtually held all the land in the kingdom—without limitation, in “fee simple”—greedily betraying his country’s trust:

  One would think the King of England well secured against bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.29

  Finally, beyond incapacity or negligence, tyranny, corruption, and trust betrayal, the Founding Fathers understood the danger of abusive treason laws. England used changing, flexible concepts of treason to target and kill enemies of the king and his representatives. The broad English treason clause—the “salvo”—allowed a tribunal to determine in retrospect whether conduct was treasonable.30 English law permitted officials to be impeached before the lords on serious, felony death-penalty charges for treason.31

  Thus, in 1787, the Founding Fathers came together in Philadelphia at the Constitutional Convention understanding the dangers facing the new nation and prepared to address many concerns, including their future leaders’ incapacity or negligence, tyranny, betrayal of trust, and corruption, and great potential for abuse with any overbroad definition of treason. Their solutions and safeguards included granting sole impeachment power to Congress to “bridle” the president32 with their power of removal, and their ability “to tear down his arbitrary ministers and ‘favorites.’”33

  And, the Americans would directly combat tyrannical tendencies in powerful leaders who could simply dismiss a legislative body by excluding that British practice from the United States Constitution; the framers would give no power to the president to eradicate the body capable of impeaching him, and further, would refuse the president the power to pardon an impeachment.

  The new Constitution would prohibit a variety of other potentially tyrannical activities, preventing the president from becoming a king: The president couldn’t accept a noble title without permission from Congress; Congress was given the power to override a presidential veto; and special laws targeting groups of people for punishment and laws criminalizing lawful behavior after-the-fact were banned.34

  Also, in order to avoid the abuses of the overbroad British definition of treason, U.S. constitutional “Treason” would emerge from the Constitutional Convention narrowly defined, with strict rules of evidence written into the Constitution and using phrases borrowed from part of the English law.35 Constitutional treason would be defined only as levying war against the United States or giving aid and comfort to U.S. enemies.

  The framers of the Constitution added a strict rule that no person could be convicted of treason without two witnesses testifying to the same overt act, or unless the accused person confessed in open court. Here again, the Founding Fathers used ancient British language, but dramatically changed the ancient British law of treason to provide safeguards for anyone accused of it.36 In fact, the change was so great that, as the key thinkers entered the final September 8, 1787, committee meeting on the Impeachment Clause wording, they realized and then solved a basic, emergent problem: a mainstay of British impeachment—treason—was now so limited in application that it wouldn’t be a viable reason for removing badly performing U.S. officials.

  THE BIRTH OF THE AMERICAN IMPEACHMENT CLAUSE: SEPTEMBER 8, 1787

  Our Impeachment Clause—particularly the language “other high Crimes and Misdemeanors”—was born on September 8, 1787. A “Committee of Eleven” debated an earlier recommendation of a very narrow impeachment clause, with removal from office only for treason and bribery. The framers well knew the importance of every word of the clause as they debated; they recognized they were writing for posterity.37

  The stage was set to determine if a category should be added for wrongdoing other than treason and bribery. George Mason of Virginia, an important and consistent champion throughout the Convention of the need for impeachment, became a key speaker in this historic debate. Mason fought adamantly for impeachment. He sought earlier in the Convention to advocate for impeachment as a method to minimize the risk of electoral corruption; the fact that voters could make their own choice in reelection would not suffice. Mason had declared that “no point is of more importance” than the retaining of impeachment in the Constitution.38

  In the final debate of September 8, Mason referenced the British government’s ongoing impeachment trial of India Governor-General Hastings, whose alleged wrongdoings would never fit within the U.S. proposed categories of treason and bribery.39 Using the Hastings case as an example,40 Mason famously argued that limiting the Impeachment Clause to only bribery and treason “will not reach many great and dangerous offenses.” He then moved to add “maladministration,” to the impeachment language. James Madison commented on the overbreadth of the word, which would allow the Senate—at their pleasure—to remove an official for any act of maladministration: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason withdrew his overbroad term and substituted the phrase “other high crimes and misdemeanors,”41 the very impeachment language used in the Hastings trial. Thus was born the most fundamental phrase in American impeachment law. But it would not become the supreme law of the land unless and until state ratifying conventions decided to ratify the Constitution.