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 mcliddick@hotmail.com.