Opinion | Morgan Liddick: Impeachment, then and now
On your Right
Capitol Hill Democrats are now at the smear-by-faux-impeachment phase of their efforts to reverse the 2016 presidential election, so let’s review some of what the founders themselves thought about impeachment.
Impeachment stirred a long discussion in the Constitutional Convention, well-documented in James Madison’s notes conveying the gravity with which the convention’s delegates considered it. Benjamin Franklin argued for including impeachment July 20, 1787. Three other delegates, including Charles Pinkney, were dubious, holding that the remedy to a bad executive lay in elections.
Rufus King put his finger on an important point against impeachment: Giving the legislative branch power to remove the president “tends to undermine the power of the executive” and the principle of divided government. As political parties — called “factions” by many of the founders — emerged, impeachment also became an “extra-electoral” device to exercise power as some of the founders feared. This took a while, but by the time Andrew Johnson was set up by the Tenure of Office Act, impeachment for political purposes was a fact.
From Madison’s notes, it was clear that delegates considered impeachment important, but specific offenses posed problems. Many possible crimes — from “betrayal of trust to foreign interests” to outright corruption and theft of public funds — were considered. “Treason” was clear. So was bribery. Other crimes were trickier. “Maladministration” was suggested but rejected as too vague. Finally, the convention settled on George Mason’s “high crimes and misdemeanors,” a British legal term of art indicating crimes by public officials against the government itself.
Delegates also had several ideas about the purposes of impeachment. Some, not anticipating its use for partisan purposes, suggested it might actually provide public vindication for the accused official through quick and open inquiry. This general attitude of fairness with regard to impeachment also informed the founders’ development of the process for it. Until late in the convention, it was argued that the House of Representatives should bring an impeachment with trial before the Supreme Court. It was only on Sept. 8, 1787, that agreement was reached to move any trial to the Senate. Despite that, it was clear that almost all delegates saw the process as judicial and expected it would conform to expectations of a “speedy and public trial.” This attitude was confirmed by practice; the Senate has voted impeachments with reticence and in ways that suggest officeholders should be removed only for criminal offenses or gross incompetence.
Now this judicial tradition of an impeachment involving probity, openness and reliance on evidence is being destroyed before our very eyes. In the House of Representatives, a single standing committee has, without a vote of authorization from the entire body, apparently begun an impeachment investigation. This is not what Thomas Jefferson’s manual of procedures for the House — still in use, barely — indicates should happen; if not expressly forbidden, it has never happened before.
More disturbing, Democrats are holding this investigation in secret, with secret witnesses giving secret testimony, which is then edited, massaged, embellished and leaked to the credulous media, who are happy to spread the confabulations and half-truths far and wide. As a Department of Justice briefing paper notes, while this sort of ex-parte impeachment hearing was practiced very early, it has not been done for a very long time.
Is this the sort of government we want? Partisan investigation out of the public eye, with no opportunity for the accused or his defenders to challenge witnesses, many of whom have consorted with those running the investigation? No opportunities to present exculpatory information? Accusations based on hearsay, innuendo, rumor and opprobrium, often spread by the committee chairman himself, who has a problem with the truth. Unless Adam Schiff really has the “evidence of collusion” between Trump and Russia he promised back in May. Or the false “transcript” of Trump’s phone call with the Ukrainian president he presented to the public wasn’t the “parody” he claims it was now that he’s been caught fibbing.
The entire sordid process only needs some stars painted on the ceiling of the Judiciary Committee’s rooms to make the re-creation of Stuart monarchs’ Star Chamber complete. Not incidentally, the abuses of that office were behind the creation of the fifth and sixth amendments to our Constitution; Democrats — who claim such concern for the document nowadays — should probably stop shredding that part of it if they wish to retain any semblance of credibility.
Morgan Liddick’s column “On Your Right” publishes Tuesdays in the Summit Daily News. Liddick spent 27 years working for the U.S. Foreign Service, primarily living abroad. He also spent 12 years teaching U.S. history and Western civilization at community colleges in Colorado and Texas. He lived in Summit County as recently as 2015. Contact him at firstname.lastname@example.org.
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