Robbins: Impeachment’s history and application
When he assumes the office, the president swears an oath to faithfully execute the laws.
Presidential power is so great, it frightened the framers of the United States Constitution. As George Mason warned at the Constitutional Convention in Philadelphia in 1787, “If we do not provide against corruption, our government will soon be at an end.” As he further posed, “Shall any man be above Justice?” In a nutshell, that is the question of impeachment.
Impeachment is the final answer to a rresident who mistakes himself for a monarch. In Federalist 69, the luminary, Alexander Hamilton, argued that whereas “the person of the King of Great Britain is sacred and inviolable,” the President of the United States could be “impeached, tried and, on conviction,… removed from office.”
Keeping power in check
There are other checks against unfettered power, the separation of powers into the three branches of government and regular elections are preeminent among them.
The ultimate safeguard is, however, impeachment which provides that a president can be removed from office if the House of Representatives approves Articles of Impeachment charging the president with “Treason, Bribery or Other High Crimes or Misdemeanors.”
Bear in mind that the Declaration of Independence was itself a long list of the tyrannical abuses committed by a king.
When Articles of Impeachment are brought, the matter is tried in the Senate — the Chief Justice of the Supreme Court presiding — and if a two-thirds majority finds the president guilty of misconduct, the president is immediately removed from office.
The words that give rise to impeachment were first proposed by George Mason and — like much of the language embodied in the constitution — were intended to be flexible and broad enough to encompass various contingencies that might present themselves in the future. As Mason explained, the words “Treason, Bribery and High Crimes and Misdemeanors” were meant to capture all manner of “great and dangerous offenses.”
Let’s consider those few words that give rise to impeachment:
“Treason” is simply the betrayal of the national security;
Impeachable “Bribery” occurs when the president offers, solicits or accepts something of personal value to influence his own official actions. It is the action of selling out the interests of The People for the president’s own personal gain;
The records of the Constitutional Convention and the state ratifying debates make clear that what “other high crimes and misdemeanors” was meant to encompass were three primary kinds of presidential misconduct: 1) abuse of power, 2) betrayal of the nation through foreign entanglements, and 3) corruption of office and elections.
All of these amount to violations of the public trust.
Abuse of power can, in turn, be divided into two major categories: 1) engaging in official acts forbidden by law and 2) the somewhat murkier, engaging in official acts with motives forbidden by law, the so-called action motivated by corrupt intent.
Corruption at the highest level
The case of Richard Nixon is, of course, instructive.
Nixon abused his presidential power in acting with corrupt motives in obstructing justice and using his official power to target political opponents.
Betrayal involving foreign powers is its own special case. This possibility made the framers break out in at least metaphorical hives. Discussion of this topic is shot through the Constitutional Convention proceedings. It is why “treason” is the first word in the operative constitutional clause dealing with possible impeachment.
Foreign interference was one of the gravest dangers feared by the framers. James Madison observed simply, “The President might betray his trust to foreign powers.”
None less than George Washington warned in his farewell address for his fellow citizens “to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”
John Adams echoed this in a letter to Thomas Jefferson, noting, “You are apprehensive of foreign Interference, Intrigue and Influence. So am I. But as often as Elections happen, the danger of foreign influence recurs.”
A special word or two is deserved regarding the concept of “corruption.” Although corruption may occur in many guises, of particular concern to the framers was the concept of corruption engaged in by the president for personal political gain, particularly for the purpose of retaining power. The framers well understood that corrupt leaders concentrate power by manipulating elections and undercutting adversaries. To the framers, “electoral treachery” earned a special place in hell.
Some people confuse criminality with impeachment — that a president can be impeached only if he has committed a crime. On Dec. 10, at a rally in Hershey, Pennsylvania, President Trump argued that the charges that he abused power and obstructed Congress are “not even a crime.” This is mistaken conception. Offenses against the constitution are different than offenses against the criminal code.
Impeachable offenses are better thought of as a breach of honor, a betrayal of trust. The very essence of an impeachable offense is one where the President puts himself—out of his own self-interest—ahead of and in place of the common welfare.
Corruption is at the heart of it.
Rule of law rules all
At the Constitutional Convention, the issue of corruption was raised 54 times by 15 different delegates. But what corruption meant to the framers was perhaps broader than we think of it today. To the framers, corruption was fundamentally about the abuse of public trust for the purpose of personal gain.
“We the People.” This is ultimately what impeachment is about. The People are the sovereign, not a king and not the president. The rule of law is supreme over any being regardless of his station.
Impeachment is about accountability.
In the British system, impeachment, in one form or another, has been around since 1376. In 1679, it was proclaimed in the House of Commons that impeachment was “the chief institution for the preservation of government.” Impeachment was a hedge against royal absolutism.
Even as the instrument of impeachment fell away in Great Britain in the 1700s, in the New World, the colonists took it up. During the revolution, 10 states ratified constitutions allowing impeachment of elected officials.
So how does impeachment work?
The House — representing the great body of The People — functions in much the same way as a grand jury. It investigates and then determines if one or more impeachable offense has been committed.
If impeachable offenses are found, the House adopts Articles of Impeachment and formally accuses the president of wrongdoing.
Then over to the Senate it goes.
There, the Chief Justice of the Supreme Court presides. Who can forget Justice Rehnquist in the Clinton impeachment trial in his Valkyrie robes?
It is the senators who try the matter, who sit as a court of impeachment for the president. Each Senator must swear a special oath. It is a juror’s oath and a judge’s oath — not a legislator’s oath.
According to Rule XXV of the Senate Rules in Impeachment Trials, all senators must make the following oath: “I solemnly swear [or affirm] that in all things appertaining to the trial of the impeachment of [the person being impeached], now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
Ideally, country is meant to prevail above party, to prevail above all else. The senators are supposed to speak for the nation.
If there is a two-thirds vote to convict, the president is immediately removed from office. If not, and if crimes may have been committed, it does not inoculate the president from potential criminal prosecution once he leaves office.
The presidency is an office with broad, almost awesome powers. Impeachment is the ultimate check upon the abuse or misuse of the sacred trust invested in the supposed honor and integrity of the man or woman elected to protect and defend the nation.
Rather than a crisis under the constitution as many pundits claim, impeachment may be better conceived of as the constitution working precisely in the way it was intended, as a check against unfettered power and ambition, as the preserve of our collective liberties and freedom from autocracy.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.