If there is only one lesson to be learned from the impeachment circus we are now suffering through, it is that the recall of a duly elected President of the United States is to weighty a matter to reduce to a game of Calvinball.
(For the uninitiated, Calvinball is a game invented by the brilliant cartoonist Bill Watterson and his characters, Calvin and Hobbes. What rules there are must invented as the game goes on.)
The drafters of the constitution understood that power was corrupting, and that at some point someone elected to the presidency would be tempted to act like a king. Alexander Hamilton put it eloquently in an essay on public debt:
When a man unprincipled in private life, desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanor—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the nonsense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may “ride the storm and direct the whirlwind.”
In Federalist #69, Hamilton (writing as anonymously Publius) compared the presidency to the institution they were trying to avoid—that of George III of England and the Monarchs of Europe throughout history. Concerning the time a president should hold office, he wrote that he should remain only if his good behavior earned the support of the people. Unlike the king, if his behavior were egregious, he could be removed at once without resorting to war:
That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of FOUR years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of THREE years for a corresponding office in a single State.
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.
One of the great strengths of the Constitution is its terseness. The drafters laid down essential principals, but in deference to the people, and to changes in values and circumstance that occur over time, they left the formulation of details to the states, and to posterity. They dealt in strategy, leaving tactics to the troops in the field. The result is a document with the strength and flexibility to have successfully guided the republic for two and a half centuries.
There are but a few short provisions in the United States Constitution relating to impeachment. Article 1, Section 2, Clause 5, which delineates the powers of the House of Representatives, provides:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I, Section 3, Clauses 6 and 7, which describe the role of the Senate in impeachments in somewhat more detail, state:
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.
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.
Article II details the powers of the president. Regarding impeachment, it specifies that:
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. (Section 4),
[The President] … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. (Section 2)
The crime of treason is further defined in Article 3, which deals with the establishment of the Judicial Branch:
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
That’s it. The crime of Bribery is not further defined so as not to conflict with stature or common law. Neither are high Crimes and Misdemeanors, which are not crimes in the usual sense, perpetrated against persons or property. Instead, as Hamilton explains in Federalist #65, “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.”
No rules are specified for the conduct of impeachments. No rules are given for the introduction of evidence or the procedures to follow in an impeachment trial, except for the requirement of a two thirds majority to convict. These are left to the judgement of Congress, where each house is empowered to make its own rules. The Chief Justice is charged to “preside” over a Senate trial, but no guidance is provided concerning his responsibilities or powers. As the Senate determine the rules that governs proceeding within its chamber, senators have predictably yielded little of their power to this role.
When they drafted the Constitution, the founders did not intend to include parties (they called them factions) in the actual workings of government. They foresaw the possibility, though, and warned strongly against following that course. In his farewell address, George Washington sounded an alarm:
“The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.”
At the time the young country was riven by two antithetical views on how to proceed. An decentralized government whose power was diffused among the States and their individual but “well-regulated” militias was promoted by Thomas Jefferson, while Alexander Hamilton, aware of the growing external military challenge posed by Great Britain as well as the threat of privateering and piracy at sea, advocated a strong, well financed federal government in the interest of military defense and economic clout. The resulting parties—Jefferson’s ‘Democratic-Republicans’ and Hamilton’s ‘Federalists’—eventually insinuated themselves into the very mechanisms of our government, giving party officials the mantle of government power.
Today the Speaker of the House, elected by the majority party, uses party powers to whip party members into voting as a solid bloc. The Senate Majority Leader decides which bills (His party’s) reach the floor for a vote, and which (the other party’s) languish. Negotiations which once took place openly on the floor of the House now occur in private caucuses: pledge to vote with the party on this bill, and your district will get funding for that bridge. Creative thought and conscience give way to party loyalty; ideology and party interest replace the common good. If the majority party’s objectives can’t be achieved, or the minority party’s objectives blocked, with the procedures in place at a given time, the majority party can change them. The “frightful despotism” of factions of which Washington warned are here today, baked into the government itself. The parties in power may change, but the despotism remains.
Nowhere is this clearer than in the impeachment proceedings now underway. The House subpoenas evidence in pursuance of an impeachment action. White House complains they didn’t do it right, so the subpoenas are void and no evidence need to be provided. The Senate insists that it is the House’s burden to amass all the evidence, and they have no need to conduct a fair trial if the House prosecutors are unprepared. The Chief Justice, charged to preside but given no actual role to play, gavels the proceedings to order and then sits silent. The talking heads of cable news (formerly the Fourth Estate) carry on as though this were a sporting event.
I wonder who is more amused, Lewis Carroll or Franz Kafka.
The time to design an impeachment procedure is when there is no specific impeachment underway or even contemplated, so that some objectivity can be brought to bear. That the House has the ‘sole power of impeachment,’ and the Senate the ‘sole power to try’ impeachments, does not mean that procedures to achieve those ends justly cannot be negotiated beforehand.
Having witnessed two and a half impeachment procedures in my lifetime, I have thoughts on the subject to share with you, unencumbered by any legal or governmental expertise whatsoever.
Impeachment Process in the House
Any member of the House should be able to offer articles of impeachment on the floor of the chamber. Such a bill should be required to provide the alleged reason for the proposed impeachment and be accompanied by sufficient facts to show probable cause why the impeachment should proceed. If the full House accepts the charge and the facts, the matter thus vetted should be referred to the Judiciary Committee for investigation.
The Judiciary Committee should be empowered to issue subpoenas for documents and testimony related to the allegations in the proposed article of impeachment. Initial hearings should be held in closed session, in a SCIF if necessary, to protect the integrity of the evidence and the privacy of the witnesses at this point in the investigation, the intgrity of the investigation itself, and the reputation of the accused president.
If there are constitutional issues, such as a challenged claim of executive privilege, they should be referred without delay to the Supreme Court. The full court should decide the matter in an expedited manner. Arguments could take place, for example, within a week of submission to the Court, and a decision handed down within thirty days of argument.
If, after adequate investigation, the Judiciary Committee finds merit in the impeachment allegation, they should prepare formal Articles of Impeachment to introduce on the House floor, where additions and amendments can be made. The articles and the ensuing debated must be fully public at this point, but the White House may not participate in the debate until there is a trial, although Representatives from his party may. The formal Articles, having been approved by the full House, would then be sent to the Senate for trial.
* Impeachment Trial in the Senate *
While the drafters unequivocally gave the Senate the sole power to try impeachments, their use of terms usually used to describe Judiciary matters—trial, conviction, judgement—clearly indicated they intended impeachment to proceed in a quasi-judicial manner. In the case as grave as the impeachment of a president, they seem to have intended to add an additional balance by bringing in the Chief Justice to preside, as a judge presides at a civil or criminal trial.
In the typical courts of Europe at the time of the founding of the US, the monarch’s will be the law. In opposition to this, Article 3 of the Constitution guarantees that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed”. Impeachments were excepted because they involved political acts rather than statutory crimes, they occurred at the federal level outside the jurisdiction of any state, and peers of an impeached official would have to be members of the federal government itself.
Trial of impeachments, then, was assigned to the Senate. By calling it a trial, though, the framers seemed to intend that it afford the same protections to both accusers and accused that are provided at a trial in a court of law. A judicial trial has two main tasks: the finding of facts, and the determination of guilt. In every state, trials have the same basic structure: two parties (plaintiff or prosecutor, and defendant) face off in an adversarial stance before a jury of their peers, with a neutral party versed in the applicable law (the judge), serving as referee. The rules of such proceedings are clearly delineated in statute and the Constitution; they cannot be changed once the procedure is underway.
At the same time, the founders understood that impeachments are more political than judicial. Hamilton explained in Federalist #65:
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.
In a judicial trial, the jury is responsible for matters related to fact. To do this, they hear witnesses, usually in the form of witness testimony and documents. The judge, given his extensive training and experience, is responsible to decide matters related to the law, including determining which evidence is pertinent to the matter at hand. The jury has the sole duty of determining guilt or innocence, except in the rare instance where their determination is inconsistent with the law.
A trial in the Senate is a very different animal, since the Senate is charged with determining its own officers and procedures. Over the years of party dominance that power has devolved to party leadership, investing considerable power in the Majority Leader. With the growth in the power of the Majority Leader has come a diminishment of the role of the Chief Justice as the arbiter of law or evidence in Senate trials, until today his role is largely ceremonial and little real power to bear on the proceeding.
* Expanded Role for the Judiciary in Presidential Impeachment Trials *
To restore the presence of the Judiciary that the drafters intended in presidential impeachment trials, I propose a three-justice panel to preside: The Chief Justice, and two other Supreme Court Justices, one chosen by the Senate and the other by the House. In this panel will reside the power to decide by a simple majority all matters of law and evidence, as a judge might in a judiciary trial. The Senators would not have the ability to override this panel from the Senate floor, although they might appeal it to the full Supreme Court, which would definitively decide the matter in the expedited manner described above.
* The Role of Senators in an Impeachment Trial *
The Senators would hear the evidence and arguments from the Impeachment Managers from the House, as well as the evidence and arguments offered in defense of the president. They would be empowered to issue subpoenas for witnesses or documentary evidence. They would be empowered to question witnesses in direct and cross examination through a designated spokesman appointed from among their number as litigators of the impeachment.
They would not be able to change the procedural rules once the proceeding is underway. They would not be able to determine what evidence is admitted into the proceeding or its record, nor choose what witnesses could testify. These decisions are left the panel of justices, whose judgement, arising from their authority as Supreme Court justices, could not be overridden from the floor of the Senate.
Senators, under oath of affirmation, would be charged with evaluating the facts and interpreting them in light of the rulings on law from the panel of Supreme Court Justices and the rulings of the full Court, in an expedited manner, on appeals. It would be the Senate’s sole authority and responsibility to issue a final verdict based on the evidence they hear. A Senator who was not present for two thirds of the trial sessions would not be eligible to participate in the verdict. A two-thirds majority of Senators present and eligible to vote would be required for conviction and removal from office; disqualification from holding future office would require a separate two-thirds vote.
The Supreme Court, having been available during the trial, would have no role once the Senate had rendered its verdict. A conviction on impeachment would be unappealable, and final.