The Impeachment Discussion, and the Constitution

By Douglas V. Gibbs

Will the Republicans impeach Obama?  Probably not.  Politically, the Democrat's mockery of the consideration has turned the possibility of such a potentially effective political statement into an unlikely possibility that could be turned against the GOP in ways they can't even imagine.

The liberal left always attacks what they fear most.  They don't fear impeachment. . . now.  They had, past tense, a slight fear that it could be an issue that turns against them, but they did what they always do, and ridiculed their opposition into silence.  The House of Representatives pursuing impeachment is not only not a concern of the Democrats, but now they have ridiculed the possibility so much that they have convinced the voting public that impeachment is all the rightwing extremists think about, and they want to do it for racist reasons. . . just the rallying cry the Democrats needed going into the mid-term elections to convince their voters to make sure the Democrats hang on to the Senate - otherwise, a witch-hunt against their precious first black president could become a reality.  The narrative will be, "Get out and vote, to keep the evil republicans from removing a historical president from office."

The word "impeachment," in itself, does not mean "removal from office."  Defined, impeachment is to charge with misconduct.  To bring impeachment is a formal process that may lead to the removal of an official accused of unlawful activity.  Impeachment does not mean "removal from office," though removal from office is often the result of impeachment proceedings.

Language in the Constitution, regarding impeachment, appears in the document in five clauses.

In Article I, Section 2, the Constitution says, "The House of Representatives shall chuse their Speaker and other officers; and shall have the sole Power of Impeachment."

In Article I, Section 3, the Constitution reads, "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.  Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law."

Article II, Section 2, touches upon pardons, and disallows presidential pardons regarding impeachment. "The President. . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

In Article II, Section 4, the language becomes specific regarding applicable offenses.  "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Finally, in Article III, Section 2 the Constitution tells us, "The Trial of all Crimes, except in Cases of impeachment; shall be by Jury."

Immediately after the final mention of impeachment, in Article III, Section 3 the Constitution defines one of the offenses; Treason.

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

During the Federal Convention of 1787, the delegates discussed impeachment during two of their meetings, once on June 2, and again on July 20.

During the discussion in June of 1787, Mr. Dickenson suggested that the power of impeachment should lie with the States.  The argument made sense, since it was the States that were creating the federal government in the first place.  The federal government was being designed to serve at the pleasure of the States.  He added that is was necessary to add the power of removal somewhere.  Dickenson believed, as did the majority of the delegates, that the bulk of the powers needed to be reserved to the States.

Roger Sherman disagreed, stating that the National Legislature should have the power of removing the President.  This made sense, when you considered that as the legislature was being constructed it would be a combination of the voice of the people (House of Representatives), and of the States (U.S. Senate).

Mr. Mason supported Dickenson's view, indicating that making the Executive the mere creature of the Legislature was a violation of the fundamental principle of good Government.

James Madison and James Wilson indicated that leaving it to the States would potentially create a battle between the small and large States, while also enabling a minority of people to prevent removing an officer that had "rendered himself justly criminal in the eyes of the majority."  It would open up the opportunity for "intrigues against him in States where his administration tho' just might be unpopular, and might tempt him to pay court to particular States whose leading partisans he might fear, or wish to engage as his partisans. They both thought it bad policy to introduce such a
mixture of the State authorities".

On vote, both ideas were originally rejected.

The discussion regarding impeachment was revisited on July 20, 1787.  Resolution 9 suggested the language to be used, "to be removeable on impeachment and conviction for mal practice or neglect of duty."

When Governor Morris and Charles Pinkney suggested the language as written be stricken, a discussion over if impeachment should be allowed while the President is in office ensued.  Mr. Pinkney argued that the president should not be impeachable while he is in office, and Mr. Davie argued that setting it up that way the president would be encouraged to exhibit better behavior because his focus would be on reelection.  Governor Morris added that if the president could be impeached while in office, his actions could be controlled by those that threaten to impeach him, and he would act according to their wishes to avoid being impeached.  Among the purposes of the Constitution was to protect the people from a government guilty of collusion, but the opposite was also possible if not structured properly.

Colonel George Mason, who had argued against having a single executive, and for fear of the executive becoming too powerful argued that the presidency should be limited to one term, adamantly supported the development of impeachment power, and for that power to be available while the president was still in office.  Mason, at the end of the convention, was one of three delegates that refused to sign the document because he felt it granted the government too much power, and did too little to guarantee individual rights.

In convention, regarding impeachment, Mason said, "No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice? Above all shall that man be above it, who can commit the most extensive injustice?"

Mason approved of impeachment powers belonging to the legislature.

Dr. Benjamin Franklin recommended the process allow for the executive to vindicate his character. "It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused."

Then the discussion turned to what offenses should be impeachable, with Governor Morris admitting corruption, and some few other offenses, out to be impeachable.  He believed the offenses that were impeachable should be enumerated and defined.

Madison agreed that a process must be in place to protect the community against the incapacity, negligence, or perfidy (defined by the 1828 Webster's Dictionary as: The act of violating faith, a promise, vow or allegiance; treachery; the violation of a trust reposed.)  Limiting the term of the president, added Madison, would not be sufficient security against a president that violates the people's trust.  Waiting until after the end of the presidency may result in him losing his capacity after his appointment, and without impeachment being possible during his time in office, "He might pervert his administration into a scheme of peculation or oppression.  He might betray his trust to foreign powers."

Leaving impeachment to a large body, such as the legislature, argued Madison, was preferable.  "It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity and honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."

Mr. Pinkney did not see the necessity of impeachments, expecting that it would never happen even if they had the legislature had the authority.

Mr. Gerry, who joined Mason at the end of the convention in his refusal to sign the document, urged the necessity of impeachments. "A good magistrate will not fear them. A bad one ought to be kept in fear of them."

Gerry hoped Pinkney was wrong in his thoughts that the chief magistrate could do no wrong, and hoped that such a belief would not become the maxim of the body of delegates.

Mr. King feared that being too cautious would weaken the needed strength of the government
being formed, and he felt that a failsafe would be that the three branches of government
should be separate and independent, that the Executive and judiciary should be so as well as the Legislative.  He also added that if the executive was impeachable, and so was the judiciary, would that not put the two branches on the same ground?  (Remember, the branches were not to be "co-equal").  King continued, "Would this be the case (the two branches being equal), if the Executive should be impeachable?  It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointment the same term of 6 years he would
periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public
liberties."  (In other words, allowing the legislature to act as a check against the President put at risk the concept of Separation of Powers.  The three branches were to have no influence on the others.  The check against the branches must be the people, and the States.)

Mr. Randolph, the third man after the convention ended that refused to sign the document, favored the power of impeachment, stating that, "Guilt wherever found ought to be punished. The Executive will have great opportunities 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. Should no regular punishment be provided, it will be irregularly inflicted by tumults and insurrections."

Randolph recognized the fear of the possibility of the influence of the Legislature from the business to be a hindrance, and suggested, in line with Alexander Hamilton, that impeachment should fall into the hands of a forum composed of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds of impeachment existed.

Doctor Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France and Holland; by which their two fleets were to unite at a certain time and place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more and more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities and contentions. Had he been impeachable, a regular and peaceable
inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.

Mr. King remarked that the case of the Statholder was not applicable. The office was for life, and he was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security.

Mr. Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment and removal, as well.

Mr. Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: He presumed that his powers would be so circumscribed as to render impeachments unnecessary.

Then the debates got more heated, and changes of mind began to occur.  The necessity of impeachments began to gain ground, largely because of the nature of the office.  The executive would not be in office for life, opening him up to be bribed by a greater interest to betray his trust.  The founders feared foreign influence, foreign monies being used to bribe the president.  The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an
officer, and punished only by degradation from his office.

The president is not a king, after all.  The people are the king.  Making him amenable to Justice would be necessary, but it would need be done in such a way as to not make him dependent on the Legislature, fearful that at anytime, if he did not act in a way they agree upon, they may in an instant try to impeach him.

Language regarding impeachment was also discussed on September 8, 1787, establishing the trial by Senate, the voice of the States, as the mechanism, but for the Chief Justice to preside over such hearings.  The original offenses were going to be treason and bribery, but after arguments that the offenses should include other crimes against the United States, the terminology was changed to include: maladministration.  Poor administration, however, would be protected against by the limit of the term of president, so maladministration was removed, and replaced with "other high Crimes and Misdemeanors."

High Crimes - Punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.

Misdemeanors - In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show “malevolence toward this country and constitution, which is unabated.”

Maladministration can be accomplished by mere incompetence, but for it to be accomplished with willful malevolence towards the country, and the Constitution, would make such maladministration an impeachable offense.  In other words, poor administration alone should not be impeachable, therefore the term maladministration was removed.  Crimes committed, or purposeful distasteful action, however, should be impeachable.  Hence, the change of language to "high crimes and misdemeanors."

Which brings us back to the impeachment discussions regarding President Barack Obama.

Andrew Johnson and William Clinton were impeached, but not removed from office.  Richard Nixon resigned to avoid likely impeachment.  Impeachment is not easy, and based on what we read above in regards to the removal of the term "maladministration" from the Constitution, an impeachable offense cannot be based solely upon a president exhibiting bad behavior.  And, if the behavior is willful malevolence toward the United States, and the Constitution, or if a crime has been committed, like any other court of law, it has to be proven.

Scandals, and unconstitutional actions, riddle the current administration like holes on a target.  With this president, the Constitution has meant little to him.  He is a lawless president that ignores the law of the land.  He finds the Constitution to be an obstacle.  The law of the land, in his eyes, is filled with "negative liberties."  However, as bad as Obama has been, an impeachable offense is not whatever the opposition to him says it is, and filing articles of impeachment must be met with more reasoning power than "if" he can be legally impeached.

The power of impeachment is also one that the House of Representatives ought not use too readily.  Going after the president should not be based on political whim, not only in order to ensure the charges can be proven, but only in order to ensure that doing so is not detrimental to the party seen as supporting such an action.  The founders believed that impeachable offenses would be so obvious, that even members of the president's party would be compelled to support impeachment proceedings.

Scholars will tell you that an impeachable offense must be one that is also a violation of a law.  That is not necessarily true.  For example, if a President was to abuse his authority to wage war, and do so without a congressional blessing, and even after Congress worked to defund the operation, such an abuse of power would be an impeachable offense, even though, technically, the president did not break the law.  However, that said, most impeachable offenses would involve an offense that is indictable on legal grounds.  Serious misconduct or a violation of public trust is enough to bring on impeachment.  Again, it must be provable, but violation of a law is not a requirement for an offense to be an impeachable offense.

Bill Clinton was impeached for criminal conduct.  He lied under oath and misled a federal grand jury about his affair with Monica Lewinsky. Nixon would have been impeached for a wide array of criminal acts, as well as abuses of power.

President Andrew Johnson’s impeachment, however, though the accusation of violating federal law was a part of the charges, was primarily centered around a betrayal of the public's trust.  He was accused of unconstitutional executive appointments, and the misuse of federal funds, in addition to violating federal law.

In other countries, a leader can be removed by the simple occasion of a "no-confidence vote", which shows the leader he or she has lost the support of the country. The founders, as with the process of making law, and changing the Constitution by amendment, did not make the process of being impeached an easy one.  Impeachment at the whim of a fickled legislature could create instability and a lack of predictability for the president's four-year term.

The lawsuit by the House Republicans is the action they have decided to take instead of articles of impeachment.  The lawsuit is a poor choice, and a waste of taxpayer dollars, but if it were to establish that the president has indeed violated the law, it "could" open up the opportunity for going farther, such as proposing impeachment after the election, should the GOP win the Senate.

Though the lawsuit is being seen as a prelude to impeachment for the crimes of the president exceeding his constitutional authority, like any cries for impeachment, the "prelude" belief is being pushed by the Democrats, so that they may use it to try to rally the Democrat base ahead of the midterms.

Presidents are allowed to challenge Congress, and Congress is allowed to challenge the president, but that does not mean such disagreements should become impeachment proceedings.  Obama has stepped over a number of lines, however, ignoring congressional activity and judicial rulings out of contempt, but the needed notion of "obvious impeachable offense" has not surfaced - not because he has not committed impeachable offenses, but because his minions have done so well covering them up. . . which gets us back to that statement about proving the charges against him.

Even the biased press will eventually say something if this president continues to pledge he is going to go it alone, with or without Congress, and with or without the courts.  A constitutional crisis is indeed underway, and the president is committing the transformation he promised - transforming the executive into a very strong branch of government, unconstitutionally above all of the other parts of government.  His actions deserve attention.  His actions deserve debate.  And in the end, his actions may deserve impeachment.  Now, however, is not the right time to unleash that strategy.

-- Political Pistachio Conservative News and Commentary

US National Defense Panel Report Concludes United States in Serious Danger from Obama - Conservative Refocus News

Madison's Notes on the Debates of the Federal Convention - Avalon Project

George Mason and the Constitution - Gunston Hall

Perfidy - 1828 Webster's Dictionary