Impeachment in the words of the Founders
The House’s rapid-moving impeachment inquiry into President Trump’s dealings with Ukraine is about to enter yet another phase. Following two weeks of intense public testimonies prior to Thanksgiving, on Wednesday morning the House impeachment investigation will transition from the fact-establishing hearings held by the Intelligence Committee to the indictment phase hosted by the House Judiciary Committee. This panel will debate and vote on specific articles of impeachment (if any) for the full House to consider.
But prior to this contentious back and forth between the two parties on if and why the president deserves to be impeached, the Judiciary Committee’s first hearing will ask constitutional scholars a central question that sits at the heart of the impeachment process: What exactly constitutes an impeachable offense?
The Constitution is famously vague on the threshold for impeachable acts. Article II, Section 4 lists only “treason, bribery, or other high Crimes and Misdemeanors” as impeachment-worthy violations. Treason is helpfully defined within the Constitution and the definition of bribery is generally understood. But the phrase “high Crimes and Misdemeanors” has left much room for interpretation, and, somewhat frustratingly, a consensus has never developed regarding its definition.
Perhaps, then, it may help to return to Philadelphia during the summer months of 1787, when impeachment and its specifics were debated by writers and signers during the Constitutional Convention. James Madison’s notes on the words, thoughts and debates of the founders show that the Constitution’s lingering ambiguities were not the result of a lack of debate between delegates. In fact, the delegates wrangled with nearly every aspect of impeachment over several weeks.
The following breaks down those original debates on impeachment chronologically.
June 2, 1787
The topic of removal or impeachment of the executive was first broached on June 2, when George Mason (VA) argued that “some mode of displacing an unfit magistrate” was required to avoid executive supremacy or malfeasance. Many delegates agreed with the notion but struggled with how to characterize unfitness or the best process for removal. John Dickinson (DE) spoke to the latter concern when he argued that the executive should be removed if a majority of the state legislatures voted in the affirmative. Only his home state of Delaware supported his motion.
On the same day, the convention attempted to define an ‘unfit’ executive. Hugh Williamson (NC) proposed that the executive should be removable in cases of “mal-practice or neglect of duty” in office. The convention adopted this broad definition knowing fully well it would need to be better specified at a later date.
July 20, 1787
Impeachment returned before the convention nearly six weeks later on July 20. But before they rewrote the language on unfitness for office, some delegates wanted to take a step back and debate whether they thought it wise that an executive should be subject to impeachment at all. Charles Pinckney (SC), for example, “did not see the necessity of impeachments,” arguing that Congress would “hold them as a rod over the Executive and by that means effectually destroy his independence.” Elections were suggested to be adequate removal mechanisms.
James Madison (VA), among others, took the other side. He argued that executives could commit actions while in office that would demand removal prior to the next election. “He might betray his trust to foreign powers,” he warned. William Davie (NC) cautioned that if the president “be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected.”
Elbridge Gerry (MA) argued the threat of impeachments provided an essential check on the executive. Gerry declared, “A good magistrate will not fear them. A bad one ought to be kept in fear of them.” Edmond Randolph (VA) agreed, especially because the “Executive will have great opportunitys [sic] of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.” In other words, removal from office was vital precisely because the president has such individual levers of power. Gouverneur Morris (PA) backtracked off his no-impeachment stance and agreed that a very few offences warrant removal, “but thought the cases ought to be enumerated & defined.”
Ultimately, by a vote of eight states to two, the convention determined that presidents can be impeached. It was then necessary to define impeachable acts, and again the drafters punted on the specifics until a later date.
Sept. 4, 1787
The matter remained unresolved into the final few weeks of the convention. On Sept. 4, The Committee on Postponed Matters—yes, seriously—finally sought to update the “mal-practice or neglect of duty” language adopted over two months prior on June 2. The committee decisively narrowed the definition to acts of “Treason, or bribery.”
Sept. 8, 1787
The full convention took on the updated narrow language just four days later. George Mason questioned such a narrow scope of offenses: “Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences… Attempts to subvert the Constitution may not be Treason as above defined.” Mason then asked to include the broad expression of “maladministration” to the list of impeachable acts.
Madison objected to “So vague a term.” Maladministration, he feared, would come to mean anything to which the Senate disagrees. Impeachment, then, may become a political remedy rather than a moral one.
Mason then suggested a substitute phrase: “other high crimes & misdemeanors [sic] agst. the State.” The phrase had been used in articles of impeachment in England for centuries and was likely familiar to many delegates. Eight states voted aye to the change, only three against, and the phrase was adopted with the small addition of “against the United States.”
With that, the convention moved on to finalize the removal process, leaving the list of impeachable acts at those of “treason, bribery, or other high Crimes and Misdemeanors.” Despite repeated warnings against ambiguous phrasing during many states’ ratification debates, the language stuck.
In the intervening 220 years, scholars and Congress have parsed the phrase every which way, with debates ongoing as to whether the word ‘High’ means a more egregious crime is needed or if the word ‘crime’ demands that a president must have broken an existing statute to meet the threshold for his potential removal. We are likely to hear both of these arguments from the constitutional scholar witnesses on Wednesday.
The Founders’ words are important, but we should be mindful of the view of a more recent legislator and president. Rep. Gerald Ford (R, MI) noted during the early stages of the Watergate inquiry: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”