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Why founders wanted impeachment powers

Robert Anderson

I just finished reading Ron Chernow’s biography of Alexander Hamilton when the House Judiciary Committee kicked off its first hearing on the impeachment of President Trump.

With the amazing life story of Alexander Hamilton fresh in my mind and his central role along with James Madison in writing the Constitution, my interest in following the House Committee’s hearing was piqued.

What did Hamilton, Madison and the other founders have in mind when they gave Congress the power to impeach a president? What kinds of presidential misdeeds did they intend would be impeachable offenses? Did the founders have in mind the misdeeds President Trump is accused of doing-that is asking a foreign power to help in his reelection?

The intent of my op-ed is to answer these questions but not to take a position on whether President Trump should be impeached. That is the role of the readers who as good citizens must endeavor to carefully consider the evidence, arrive at an opinion and express it to their elected member in Congress.

It was 229 years ago on September 17, 1787, that the founding fathers ratified our Constitution at Independence Hall in Philadelphia. The Federalist Papers authored by Hamilton and Madison were instrumental in moving enough states to ratify. So important was the impeachment power that Hamilton devoted two papers on the topic-expressing the opinion that our future presidents must not be above the law.

Keep in mind that our country had just won a war against a tyrant king who was considered above the law. The impeachment also piqued the interest of biographer Ron Chernow who recently wrote a Washington Post article entitled Hamilton pushed for impeachment powers. Trump is what he had in mind (Oct. 18). Chernow writes:

Hamilton harbored an abiding fear that a brazen demagogue could seize the office.

That worry helps explain why he analyzed impeachment in such detail: He viewed it as a crucial instrument to curb possible abuses arising from the enlarged [presidential] powers he otherwise championed. From the outset, Hamilton feared an unholy trinity of traits in a future president-ambition, avarice and vanity.

The founders felt the impeachment power was an important link in the steady chain of checks and balances that would keep the separation of powers between the three branches: judiciary, legislative and executive in balance. The founders believed that if any one of the three branches got too powerful it would oppress the other two branches, thereby putting the republic at risk. Some who defend President Trump claim that facing the voters in the next election alone should be a sufficient check.

But such an idea is contrary to what the founders intended. At the Constitutional Convention, North Carolina Governor William Davie and Virginia delegate George Mason feared that the impeachment power was critical to prevent a president from misusing his office to “spare no efforts whatever to get himself re-elected.” (see Professor Pamela Karlan’s opening statement at the Judiciary Committee hearing).

Also, George Mason was famous for adding the words “high Crimes and Misdemeanors” to the list of impeachable offenses in the Constitution. Based on the concern about subverting elections, it is clear that the founders intended that the act of subverting a presidential election would be one of the “high Crimes and Misdemeanors.”

A second ground for impeachment related to the mischievous conduct of foreign affairs. For the founders, especially Jefferson, Washington and Adams, the threat of “foreign influence” was of great concern since the new republic faced more powerful European counties. Therefore, a president who sought the aid of a foreign government to promote his reelection would certainly qualify as a “high Crime and Misdemeanor.”

A third ground for impeachment would be a president’s abuse of power for personal benefit rather than advancing the national interest. In his testimony at the Judiciary Committee, Harvard law professor Noah Feldman explained that the founders borrowed “the basic idea of impeachment from the constitutional tradition of England” and the words “high crimes and misdemeanors had a well-understood meaning from centuries of English impeachment trials.”

Therefore, what President Trump is accused of doing-that is attempting to subvert an election by appealing to a foreign power to announce an investigation for his personal benefit-falls squarely within the definition of impeachable offenses Hamilton and the other founders intended.

Of course, actual impeachment depends upon proving the case with sufficient evidence in the U.S. Senate which has the ultimate power to remove.

Editor’s note: Robert Anderson is an elder law attorney who practices in Marquette.