In the course of any given day lately, I find myself grappling with the following question: What would the Founders do about it? Or, even better—what were they thinking and what were their arguments as they went about writing that sacred document we call the United States Constitution?
Actually, it’s a practice I’ve been doing for quite some time. I mean, between gun rights, abortion rights, immigration, and so many other issues, our Constitution is the basis for trying to figure out how to deal with these controversial issues. Often, we try to gauge what the intent of the Founders was. We can read their words in such publications like The Federalist Papers, and other discussions and arguments they were engaged in, that have been documented in letters, debates, and of course, The Constitutional Convention itself.
Currently, though, the impeachment process is front and center. Ever since the Democrats took control of the House of Representatives in 2018, the drumbeat has only gotten louder. And when you add in The Mueller Report, which cleared the President and his campaign of conspiracy with the Russians—but not obstruction of justice—you have what is fast becoming a constitutional crisis in the making. And taking a look at how the Founders looked at impeachment, and how they ended up dealing with it in the Constitution, is worth a look.
Recently I came across an article from 2017, written by Erick Trickey in The Smithsonian. Entitled, Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense, it’s a detailed analysis that centers on three Virginia delegates and the arguments and debates between them. The following are some of the main points from the piece. You can read the full article here.
The Founders struggled with impeachment.
Just as it is today, impeachment was a thorny issue for the framers. They couldn’t agree on the wording, nor could they adequately figure out what an impeachable offense should be. Problems that could not be resolved were moved to the Committee on Postponed Matters, and impeachment was one of those issues.
The three Virginia delegates in question who were instrumental in resolving the issue were: James Madison, George Mason, and Edmund Randolph. All three took leading roles at the Convention from the beginning, as it convened on May 25, 1787. After over three months of deliberation, and the supreme document nearly completed, it was Mason who sounded the alarm over the new government about to be created. He was worried that a future president could become a tyrant as oppressive as King George lll.
At that point, the new document only specified that treason and bribery were the only grounds for impeaching the President. But Mason was worried that treason wouldn’t include “attempts to subvert the Constitution.” Mason proposed another category of impeachable offenses: “other high crimes and misdemeanors.” The vagueness of this phrase has confounded those in the legal and political world forever. But if you take a more in-depth look, it becomes a bit clearer what Mason intended those words to mean.
Charles Pinckney of South Carolina and Gouverneur Morris of Pennsylvania had moved to strike impeachment from the document. Morris stated, “If the President should be re-elected, that will be sufficient proof of his innocence. Impeachment will render the Executive dependent on those who are to impeach.”
But Madison, Mason, and Randolph all spoke up to defend impeachment. “Shall any man be above justice?” Mason asked. Shall that man be above it who can commit the most extensive injustice?” Mason suggested that a presidential candidate might bribe the electors to gain the presidency. “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?”
And Madison argued that the Constitution needed a provision “for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate.” Waiting to vote him out of office in a general election wasn’t good enough. “He might pervert his administration into a scheme of peculation—embezzlement–or oppression. He might betray his trust to foreign powers.”
Randolph agreed. “The executive will have great opportunities of abusing his power—particularly in a time of war, when military force, and in some respects, the public money, will be in his hands.”
Impeachment modeled after British Parliament.
The model used by the three Virginia delegates resembled the same process that had been used by the British Parliament for over 400 years, which was aimed at exercising some control over the king’s ministers. While the three were in general agreement over impeachment, there were some differences. Mason had used the impeachment of the Governor-General of India, Warren Hastings, as an example of how an out of control President should be dealt with. Mason argued that Hastings was accused of abuses of power, not treason, and the Constitution needed to guard against a president who might commit the same misdeeds as Hastings.
Mason then proposed adding “maladministration” as a third cause for impeaching the President, to which Madison objected, saying “So vague a term will be equivalent to a tenure during pleasure of the Senate.” In other words, Madison feared the Senate would use the word “maladministration” as an excuse to remove the President whenever it wanted.
So Mason offered the substitute: “other high crimes and misdemeanors against the State.” Eventually, “against the state” was removed in the final document, and many have come to interpret “high crimes” as meaning only crimes identified in criminal law.
Would Trump’s impeachment qualify under the Founder’s criteria?
Again, the vagueness of “high crimes and misdemeanors” is a sticking point for so many. But if you realize that the Founders were relying so much on how the Brits had dealt with impeachment in Parliament, you begin to understand where they were coming from.
We’ve had three impeachments in the United States. Historians are in basic agreement that the proceedings against Presidents Bill Clinton and Andrew Johnson did not adhere to the integrity of what the Founders had envisioned regarding impeachment … but that the Articles of Impeachment against Richard Nixon did.
And in fact, the House Judiciary Committee in 1974 offered up this explanation: “High crimes and misdemeanors originally referred to “damage to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust,” allegations that “were not necessarily limited to common law or statutory derelictions or crimes.”
If House Democrats decide to proceed with an impeachment inquiry, based on the original intent of the Founders, they would be well within their rights to do so. Looking at how the House in 1974 decided to go about impeaching Nixon, invoking the original intent of Mason, Madison, Randolph, and others, how could anyone reach a different conclusion?
I would argue that anyone who has read The Mueller Report could not disagree unless partisanship and allegiance to Trump rule your world. There are 10 legal cases of obstruction of justice laid out in Part Two of The Report. Corruption, abuse of power, neglect of duty, and a betrayal of trust are all on full display.
The Founders were worried about a tyrant coming to power in their new government—nobody more so than George Mason. Were Mason alive today, he would be shocked beyond belief at what is transpiring in the White House daily. That is why impeachment seems not only inevitable—but warranted. I’m confident Mr. Mason would agree.