Amid the whirlwind of news surrounding the impeachment inquiry of President Trump, John Yoo, deputy assistant attorney general under the second President Bush, has recently bolstered a particular argument against impeachment: that with an election on the horizon, the Founders would have chosen removal via the ballot box instead of impeachment.

This theory, however, is wrong. Simply by providing for the power of impeachment, the Founders recognized that there were times when elections were insufficient, and they did not condition the propriety of impeachment on proximity to an election.

The Founders went to great lengths to differentiate between political disagreements and actions that warranted impeachment — defined as an act of treason, bribery or “other high crimes and misdemeanors.” In serious breaches of the law, when, as Benjamin Franklin put it, the president “rendered himself obnoxious,” an unbiased, judicious scrutiny of the allegations was needed, something the Founders understood would not happen at the polls.

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Those looking to uncover the Founders’ intent, clarify ambiguous provisions of the Constitution and understand the logic behind certain constitutional designs have long turned to the Federalist Papers. These 85 articles, written by James Madison, Alexander Hamilton and John Jay under the pseudonym “Publius,” were intended to help garner support for the new Constitution and allay concerns about a strong federal government.

The Federalist Papers have enduring relevance. Federal courts routinely look to them because, alongside the records of the Constitutional Convention, the Federalist Papers serve as a quasi-legislative history to the Constitution. Moreover, Madison and Hamilton’s represented two distinct political perspectives. While Hamilton remained committed to the principles of a strong central government, Madison and his party of Democratic-Republicans (the former Anti-Federalists) sought to return more control to the states.

And the Federalist Papers are clear on impeachment. In Federalist No. 65, Hamilton wrote, “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust … are injuries done immediately to the society itself.” Unlike criminal or civil offenses, which can be thought of as private misconduct against certain parties, impeachable offenses are committed against the whole of society and demand a different type of investigation and punishment.

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The Founders knew any impeachment process would be volatile, with allegations themselves causing both supporters and opponents of a president to separate into their respective camps with political views coloring their perceptions of the charges. We are seeing that process play out now in real time.

“The prosecution of them,” Hamilton continued, “will . . . agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the accused . . . it will connect itself with the pre-existing factions and will enlist all their animosities . . . on one side or on the other.”

Given this inclination toward partisanship, impeachment was both a necessary check on official misconduct — a key reason the Founders could justify giving the president, vice president and other civil officers such power — and a process to combat unfair allegations against political leaders. As Hamilton explained, “The greatest danger is that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” When there are accusations that the public trust has been violated, the innocent must be swiftly acquitted, the guilty convicted and removed — all without regard to political party.

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Allowing the people to decide by election whether the president should be convicted and removed from office undermines this idea. Hamilton believed that a popular president who abused the powers of office could be reelected. The electorate can “hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny,” he concluded. The impeachment process therefore was designed in part because the Founders feared that voters would not remove a president who committed the very sorts of violations that most concerned them.

It is for this reason — the avoidance of political passions and factional loyalties — that the Founders gave the Senate the power of removal and refused to leave it to the people.

The other side of impeachment, acquittal, was also a key part of the argument. The Founders believed the Senate trial could help a president, if falsely accused by political opponents. Speaking at the Constitutional Convention during the summer of 1787, Benjamin Franklin described the impeachment process as “regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” If acquitted, the impeachment process could clear a president’s name and legitimize the remaining time in office.

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Franklin’s remarks are another clear sign that serious allegations of presidential misdeeds were designed to be resolved through the structures of government, not elections. The Constitution gives the people, through their representatives in the House, the power to accuse a president of impeachable acts. Having accused the president, the people cannot then also stand in judgment. The Senate, as designed by the Framers, occupies the ground between accused and accusers.

That is why the Senate, acting with judicious scrutiny, was the only proper “depository of this important trust.” Until ratification of the 17th Amendment in 1913, senators were elected not by voters but by state legislatures. Hamilton explained in Federalist No. 62 that the Senate was designed this way to insulate it from the “impulse of sudden and violent passions.”

The people remain free to pledge their loyalty to a leader or a political party. But those serving in the Senate were by design separated from voters, pledging allegiance only to the Constitution, and to defend it against enemies foreign and domestic. The Senate was supposed to avoid considering electoral consequences of impeachment and focus only on whether there was evidence that the president misused the power of the Oval Office.

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One may credibly argue that the 17th Amendment transformed the Senate to a popularly elected representative body like the House, making it no longer an appropriate depository of this "important trust.” Perhaps an update to our constitutional design is necessary, but the Senate retains for now the sole power to conduct an impeachment trial.

Those now arguing that impeachable acts committed by a first-term president should be punished by the people via defeat in the next election have missed what the Founders themselves had to say. If the Founders intended to give the people the final say on whether to convict and remove a president who has been impeached, they would have. But the Constitution specifies that the electorate has a very limited role to play once the House begins impeachment inquiries.

While the 2020 election may remove Trump from office, it cannot address the potentially impeachable acts of which he has been accused. It also presents a president who has perhaps “rendered himself obnoxious” with the opportunity for reelection. The Founders made clear that the Senate impeachment trial would reveal the truth. We would be wise to heed their advice and follow the procedures they left for us.

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