The King is (Nearly) Dead: How can the Founding Fathers help us understand Impeachment?

 

On Wednesday, December 18th, the US House of Representatives voted to impeach President Donald Trump– making him only the third president in history to be formally charged with committing high crimes and misdemeanours and to face removal by the US Senate.

Mr Trump was sentenced to two articles of impeachment in total for violating his “constitutional oath faithfully to execute the office of President of the United States”. 

The first, abuse of power, centred on accusations that Mr Trump had overstepped executive authority by illegally soliciting electoral assistance from the Ukrainian President Volodymyr Zelensky. Mr Trump had asked the foreign leader to launch investigations into Democratic Presidential front-runner Joe Biden’s son Hunter, who had previously served on the board of private Ukrainian natural gas company, Burisma. Mr Trump had pressured the Ukrainian government to complete this investigation by withholding valuable U.S. government actions including $391 million of military aid already approved by Congress.  The second article, Obstruction of Congress, surrounded Mr Trump directing his White House to defy lawful subpoenas throughout the Impeachment enquiry.

download.jpeg

 Pictured- Adam B. Schiff, Chairman of the House Intelligence Committee, and Nancy Pelosi, Speaker of the U.S. House of Representatives.

President Trump’s impeachment undoubtedly represents a moment of constitutional and historical clarity for the country-  but also an action with very little chance of resulting in Presidential removal.  

Faced with an intense degree of polarisation between political parties, it is all but guaranteed that the Republican-dominated  Senate will choose to acquit the President of wrongdoing early next year. This contradiction has ignited confusion from individuals on both sides of the political spectrum, igniting the question: If Impeachment is dead in the water, why is it so important? 

To fully understand the significance of Presidential Impeachment, it is critical to examine the intention of the Founding Fathers and Framers of the Constitution and their viewpoints on limiting executive authority. 

We The People: The Framers’ early intentions for the Republic 

The U.S. Constitution was drafted at the outset of the Revolutionary War in the late 18th Century; the Founding Fathers were explicitly aiming to avoid a repeat of the persistent abuse of powers experienced at the hands of the “present King of Great Britain”. To avoid the risk of a tyrannical monarch with demagogic tendencies and absolute authority, the constitution enshrines three co-equal branches of government (executive, legislative, and judiciary) to serve as checks and balances (accountability) on each other’s power. 

In spite of this in-built separation of power, during the early ratification debates, many feared that the Constitution’s creation of a powerful president reflected a fundamental betrayal of the principles of the  American Revolution. Edmund Randolph, the first U.S. Attorney General, contended that the broad power granted to the president would make the Constitution “the fetus of monarchy”. 

The impeachment provision was a direct response to these objections. The Founding Fathers strongly emphasised the doctrine of rule of law- that all free men should be equal before the law and regular law should be superior to arbitrary and discretionary powers- including elected leadership. 

constituitonal convention new yorker

(Image: New Yorker) The US Constitutional Convention,  1787, in which the U.S. Constitution was debated and drafted by founder fathers James Madison,  Benjamin Franklin, Alexander Hamilton, and more.

This principle is best encapsulated by George Mason, who argued: “ Shall any man be above justice?” he asked. “Above  all shall that man be above it, who can commit  the most extensive injustice?”

The Founding Fathers were especially worried that a President might abuse his power to influence the election process itself in his own favour, “pervert his administration into a scheme of oppression” or “betray his trust to foreign powers”. To uphold the sanctity and stability of the new Republic, the Constitution must thereby provide for the impeachment of the President, and this process must be solely within the authority of Congress to prosecute. 

What would constitute an impeachable offence? The Founders believed that elected officials should be appropriately brought to justice via impeachment for: “bribery, treason, and other high crimes and misdemeanours”. They sought to eliminate “high crimes and misdemeanours”, defined as offences which proceed from a “severe violation of public trust” by an elected official to endanger the political system itself – which could include undermining elections, breaking constitutional boundaries, or corrupting the very functions of government an official is sworn to protect. 

The historical background of Impeachment’s origin helps to understand why Trump’s previous comments have generated muted responses from Democrats in the past. Whilst distasteful- climate change denial, untruthful tweeting, and harsh rhetoric alone could not be interpreted as a high crime and misdemeanour- because they did not constitute a violation of public trust. 

In contrast, today, the evidence is both clear and overwhelming that Mr Trump attempted to extort a foreign country for his own political gain– by forcing a statement from the President of Ukraine that a political rival (Joe Biden) was under investigation for corruption.

newsweek impeachment poll.jpg

(538) Polling from FiveThirtyEight indicates a plurality (47.9%) of Americans are in favour of impeachment

 

This represents a flagrant abuse of presidential authority for personal political gain at the expense of national security (by undermining the safety of a critical ally in Ukraine) that is exactly the type of behaviour the framers had in mind when they first drafted the mechanism for impeachment. Mr Trump also repeatedly directed his White House and related agencies to defy Lawful subpoenas,  restricting Congress from carrying out its constitutionally-mandated impeachment oversight power.

 The US House of Representatives was right to have impeached in this instance- and the Senate must follow by holding a fair trial to determine whether the president should be removed from office. Even if removal fails, this process is significant because Congress has a constitutional duty to prosecute the case against a President who has so blatantly sought to undermine the nation’s sacred political institutions.

Inaction or a rushed trial by Senators now -despite the brazenness and gravity of Mr Trump’s proven offences and the degree to which they violate the Founders’ intentions on drafting the Impeachment Clause- could undermine this institutional authority.

It also sets a dangerous precedent – that as long as your party has more seats than the other- that such illegitimate behaviour can be accepted and normalized by future presidents. In turn, the boundaries of the Constitution are at danger of being further and further eroded. 

This slippery slope is highlighted by the University of North Carolina Law Professor Michael Gerhardt, who, in his testimony before Congress argued:  “I want to stress that if what we are talking about is not impeachable, nothing is impeachable.” 

The necessity of action draws a reminder of founding father Thomas Paine, who in the midst of the Revolutionary War against Britain gave a call for immediate action for independence:  “For the Time has found us”.   

The US Founders were prescient of the risk of a tyrannical leader and designed impeachment as a tool to prevent the republic from descending to autocracy. The Time has found Senators once again- one would hope the framers’ lessons can be applied in the modern age.

Written by: Thomas Kurian

Sources and Wider Reading

New York Times

https://www.nytimes.com/interactive/2019/12/14/opinion/sunday/trump-impeachment.htm.l

https://www.nytimes.com/2019/09/27/opinion/impeachment-declaration-of-independence.htm.l

https://www.nytimes.com/2019/12/18/us/politics/president-impeachment-history.htm.l

Washington Post

https://www.washingtonpost.com/politics/2019/12/18/takeaways-impeachment-president-trump/

538

https://projects.fivethirtyeight.com/impeachment-polls/

New Yorker

https://www.newyorker.com/news/news-desk/how-impeachment-ended-up-in-the-constitution

The Atlantic

https://www.theatlantic.com/ideas/archive/2019/12/madison-constitutional-convention-notes/603703/

https://www.theatlantic.com/magazine/archive/1867/01/the-causes-for-which-a-president-can-be-impeached/548144/

Noah Feldman: (NY Books) :  https://www.nybooks.com/articles/2019/12/19/trump-constitution-meaning-of-impeachment/

Impeachment: A Citizen’s Guide (Cass Sunstein):  https://www.amazon.co.uk/Impeachment-Citizens-Cass-R-Sunstein/dp/0143135171

Los Angeles Times

https://www.latimes.com/opinion/story/2019-12-07/impeach-president-trump

Center for American Progress

The Founders Would Have Impeached Trump for His Ukraine-Related Misconduct

NPR:

https://www.npr.org/2019/12/18/789526769/jesus-was-treated-more-fairly-what-4-house-members-said-in-impeachment-debate

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Blog at WordPress.com.

Up ↑

%d bloggers like this: