“The first man put at the helm will be a good one,” Benjamin Franklin mused to the Constitutional Convention in early June, perhaps winking in Washington’s direction as he said it. But then he added ominously, “Nobody knows what sort may come afterwards.”
The fear of a return to tyranny post-Revolution and “what sort may come afterwards” motivated the framers to limit the president’s power (i.e., no absolute veto) and to include an impeachment clause.
At first, some of the framers, such as John Dickinson of Delaware and Gouverneur Morris of Pennsylvania, were against it. If a president was terrible, wouldn’t voting him out at the next election be enough of a remedy? they asked.
Franklin replied with a joke that amounted to, “Anyone who wishes to be president should support an impeachment clause, because the alternative is assassination.”
Good one, Ben.
The initial clause borrowed from established concepts of impeachment in English law and state constitutions that allowed impeachment for “maladministration” — which means “basically just for being lousy at your job,” said Jeffrey A. Engel in an interview with The Washington Post. Engel is director of the Center for Presidential History at Southern Methodist University and co-author of “Impeachment: An American History.”
“And [James] Madison and [George] Mason and others, I think quite rightly, argued that if the standard is simply being ineffective or incompetent, well, that’s always in the eye of the beholder,” Engel said.
Some of the framers noted that impeachment was unavoidably a political process and worried it could devolve into a partisan tool.
Alexander Hamilton predicted in Federalist Paper 65: “In many cases [impeachment] will connect itself with the preexisting factions ... and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
They also worried that Congress, which they viewed as the primary governing body, might use impeachment threats to bend a president’s policy decisions. But it wasn’t feasible to give the impeachment power to the judiciary branch, since judges are appointed by the president and could end up being called to convict the very president who appointed them. (The chief justice of the United States oversees impeachment trials but does not vote.)
To mitigate this, the impeachment power was divided among the two chambers of Congress, and there was a two-thirds majority required to convict.
Plus, the standard for impeachment was changed from “maladministration” to the more stringent “treason, bribery, or other high crimes and misdemeanors.”
So, 230 years later, would the framers be shocked that in all this time, the United States has never removed a president via impeachment?
“YES!!!” Engel wrote in an email.
Sean Wilentz, a historian at Princeton University, was more circumspect: “I don’t think they’d have been shocked at what’s happened since 1787, but only given that Nixon was all but removed.” President Richard M. Nixon resigned only after it was clear to him the House would impeach him and the Senate would convict, Wilentz explained — “a technical removal, like a TKO in boxing.”
There has been debate for centuries about what exactly “high crimes and misdemeanors” means. Engel said that, given that the concept of the presidency was created with Washington in mind, a good shorthand is, “Imagine something that you can’t imagine George Washington doing.”
He also said that “high crimes and misdemeanors” would have been no more mysterious to the framers than the expression “balls and strikes” is to us. In fact, in the July 19 and July 20 debate at the Constitutional Convention, Madison and others described several specific instances that would qualify.
“They say, ‘Well, what if a president works with a foreign power? Well, then of course he should be impeached. What if a president decides to try and make money in office? Well, of course he should be impeached. What if a president lies as part of his campaign? … Well, then of course he should be impeached,’” Engel said, before alleging, “which really is Donald Trump’s biography.”
Wilentz also offered his assessment of how the framers would view the current impeachment-related process in the House.
“Should the Senate Republican majority refuse to remove Trump on specious grounds, cloaking partisanship, the framers would have concluded that the republic had collapsed,” he wrote.
That returns us to the foreboding Franklin quote at the beginning of this story. When he said, “The first man put at the helm will be a good one. Nobody knows what sort may come afterwards,” he followed up with this: “The executive will be always increasing here, as elsewhere, till it ends in a monarchy.”
Read more Retropolis: