Since Jan. 14, the Managers have recycled other charges about Historians in Defense of the Constitution, including the claim, which appeared on George magazine’s gossip page (citing unidentified sources), that the White House initiated our effort. Armed with highly selective quotations from Arthur Schlesinger, Jr.’s book from the aftermath of the Watergate crisis, The Imperial Presidency, they have also insinuated that Schlesinger’s current stance against impeachment flies in the face of his earlier statements.
All of these charges are false. They are also nothing new. The report about White House solicitation of the historians has been answered in a letter to the editor of George which, alas, will not be published for some time, if at all. In an article in the New York Times on Jan. 17, 1999, Schlesinger noted how Judiciary Committee Chairman Henry Hyde mangled his writings at the committee’s hearings on Dec. 8. Schlesinger also made it clear he would support President Clinton’s removal had Clinton done what President Nixon did. We have also refuted the other claims — claims more central to the current impeachment debate — in various other venues, including the hearings held by the House Judiciary Committee (of which every one of the House Managers is a member). That the Managers would attempt to revive them suggests either that they were not listening during the Judiciary hearings, or that they are desperate to find some way, any way, to discredit the historians’ statement and confuse the public. Either way, the Managers compel us, for the sake of clarity, to go over the history of impeachment once more.
It is all the more important that we do so in light of the misleading view of the Constitution, which the Managers presented in their statements to the Senate, particularly in the statements delivered on Jan. 16. We believe that a careful reading of those statements, with their selective treatment of the Constitution and the Federalist Papers, and their endorsement of an eccentric view of impeachment, vividly shows the weakness of the Managers’ constitutional case, and the radical character of their new theory of impeachment . Above all, the Managers’ case flagrantly departs from both the letter and the spirit of the Constitution.
We hope that the Senate, upon careful consideration of these matters, will defend the Constitution against those who would convert impeachment into a sinister instrument of partisan politics. This is not a party matter. The constitutional principles under attack protect Republican as well as Democratic presidents.
I. The Framers, Impeachment, and the Exercise of Executive Power
The evidence about the Framers’ explicit reservation of impeachment for public executive acts – in short, for executive tyranny, a premier concern of the Revolutionary generation – appears in the Constitutional Convention debates of 1787, the debates in the various states over ratification in 1787-88 and in the Framers’ subsequent speeches and writings. Most of these materials are published in the standard historical compilations edited by Max Farrand, Jonathan Elliot, and John P. Kaminski. Additional supporting arguments appear in subsequent commentaries (including Joseph Story’s). And, interestingly, further historical support has appeared most recently in testimony by some of the scholars called by the Republican majority (not simply by the Democratic minority) at the sub-committee hearings on Nov. 9.
Early on in their discussions of the grounds for presidential impeachment, the delegates in Philadelphia confined themselves to grave abuses of executive power. Concerned about those who were skeptical of, or opposed to, any sort of impeachment provision, they purposely kept the standard for impeachable offenses high, and reserved it for grave matters concerning the performance (or non-performance) of executive duties. They could not have been more explicit: “[M]alpractice or neglect of duty” (Hugh Williamson); “incapacity, negligence, or perfidy of the chief Magistrate,” involving crimes that would “pervert his administration into a scheme or peculation or oppression.,” including, specifically “betraying his trust to foreign powers” (James Madison); “corruption & some few offenses,” such a as “treachery,” “corrupting his electors,” and being “bribed by a greater interest to betray his trust” (Gouverneur Morris).
(As a quick historical note, it is important to understand that when the Framers talked of “bribery,” they were thinking of instances in which someone would bribe the chief executive for some ulterior political purpose. In particular, they were thinking of the case in which Charles II was bribed by Louis XIV of France. The suggestion by some, including Kenneth Starr, that any sort of bribery is impeachable – including, say a president paying off a bellhop to buy his silence about an assignation – is a misreading of the Framers and a distortion of the Constitution.)
True, none of the delegates asked, in effect, “Hey, what about other kinds of abuses, not involving public duties;” and hence none of the other delegates replied that such abuses were not impeachable. (Had such an unlikely discussion come up, the historians’ statement would have quoted it directly.) Those questions and those replies did not arise, though, because it never would have occurred to the delegates to raise them. In the context of their discussions, to bring up crimes other than abuses of executive power would have been like asking a convention of apple growers about the price of oranges. In any case, the delegates were explicit that they reserved impeachment for “great and dangerous offenses,” in George Mason’s words, on the order of “[a]ttempts to subvert the Constitution.” And these were confined to crimes committed in the exercise of executive power.
The matter came to a head on Sept. 8, when the Convention approved wording that would have specified impeachment in cases of “Treason, Bribery, or other high crimes & misdemeanors agst. the State.” Here again, was an explicit statement that the Framers had reserved impeachment for grave misdeeds committed in the exercise of executive power. No less of an authority than the conservative historian Forrest McDonald (another scholar called by the Republican majority) has affirmed that, according to the wording approved on Sept. 8, impeachable offenses were “limited to actions taken in the performance of public duties.” When James Madison objected to George Mason’s earlier wording, about “maladministration” (which Mason had lifted from Blackstone’s Commentaries) it was precisely because the term was so vague that it would permit the Congress (Madison specifically mentioned the Senate) to lower the standard and remove a president at its pleasure. Everyone in the Convention knew what that standard was, not least because the matter had been before them for months. And so Mason’s revised wording, “high crimes & misdemeanors agst. the State,” carried the convention.
For reasons that are still a little obscure, the wording of the final clause was changed later that same day to “against the United States,” in order to remove “ambiguity.” A reasonable reading of this is that the delegates were concerned about what would later be known as federalism and the division of powers, and wanted to keep state crimes distinct from federal ones. But that’s a matter of conjecture. Factually, the new wording still confined the grounds of impeachment to abuses of executive power. It was only when the Committee of Style removed the wording after “misdemeanors” that the possibility for later confusion was created. The Convention had instructed the Committee of Style not to change the meaning of any phrase. The new wording did not, in their eyes, do so. Nor did it do so for succeeding generations, including those Americans who called for the impeachment and removal of Andrew Johnson and Richard Nixon. It only did so in the minds of some commentators and officeholders (and an Independent Counsel) 211 years later, in their efforts to promote a radical new theory of impeachment.
After the Convention had finished its work, individual Framers reiterated (again, quite explicitly) what they had in mind as impeachable offenses, when they argued in favor of ratification before their state conventions. The details are contained in Elliot; in brief, the offenses discussed including the receipt of payments from a foreign power (in violation of Article I, section 9), giving false information to the Senate in order to gain measures injurious to the country, and, more generally, failure to perform the duties of the Presidency. The Framers’ comments referred exclusively to the offenses against the state stemming from the exercise and abuse of executive power, in perfect harmony with their work at the Philadelphia Convention. James Wilson, second in importance only to Madison in getting the constitution framed and ratified, put it well in the Pennsylvania ratification convention, when he observed that, “Far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment.”
Years later, James Wilson returned to the matter and wrote that, in the United States, “impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.” Thereafter, Joseph Story – who although born in 1779, too late to be a Framer, is seen as second only to John Marshall in advancing a neo-Federalist view of the Framers’ work – wrote that impeachment dealt with “offences which are committed by public men in violation of their public trust and duties.” Again, the matter comes down to official public abuses.
The House Republican Impeachment Managers have turned a blind eye to these fundamental matters. With highly selective quotations from Hamilton’s 65th Federalist, for example, Manager Charles Canady, on January 16, attempted to argue that Hamilton did not focus his discussion of impeachment on political acts that did direct damage to society. (See Part III below.) And in that same statement, Canady actually endorsed — and this bears close attention — the eccentric view, expressed by James Iredell at the North Carolina ratification convention, that, in Iredell’s words, “If [the president] commits any misdemeanor in office, he is impeachable.” Here is the essence of the House Republican Impeachment Managers’ radical new theory lowering the bar to impeachment — that any misdemeanor is an impeachable offense. It is explicitly at odds with both the Framers’ discussions and the language of the Constitution. Unless it is rejected, the Constitution will have been in effect amended by fiat of the Congress.
II. Impeachment and Murder
What, though, should be done about a president who committed some monstrous crime, like murder or rape, in his personal capacity? What if a president shot a man who had cuckolded him, or a political rival who had insulted him? Shouldn’t that president be impeached and removed from office?
The Framers, alas, were silent on this. And, incredibly, the one historical example we have, concerning Aaron Burr, points toward the idea that such offense might not be impeachable.
In 1804 –a mere seventeen years after the Constitution had been framed, and with many of the Framers still alive — Burr, then vice-president, shot and killed Alexander Hamilton in a duel. Although the code duel was respected in some parts of the country, it was not respected in New Jersey (where the killing occurred), and a Bergen County court indicted Burr for murder. Burr fled south until the clamor against him subsided, then returned his official duties, knowing that if he entered New Jersey he would be arrested on the murder charge.
Although many in Washington were deeply upset by what Burr had done, there was no hint that he should be impeached, even though the standards of impeachable offenses for the president and vice president are identical and even though an American court had indicted Burr for murder. On the contrary, Burr took up his official duties as presiding officer in the Senate, oversaw the impeachment trial of Supreme Court Justice Samuel Chase, and served out his term hobnobbing with president Thomas Jefferson, Secretary of State James Madison, and other Founding Fathers. The murder charges were eventually dropped, but not until after Burr had left office.
To say the least, this is an uncomfortable precedent. As Charles Black and other constitutional experts have noted, there is a good reason to believe that certain private acts committed by a president would so stain the office that they demand impeachment and removal. And as one of the historians who helped write and circulate the October 28 statement testified before the Judiciary Committee:
“This is not to say that all instances of private misconduct by presidents may not rise to the constitutional level. If a president were to engage in murder, in rape, in child molestation, that would, as Professor Black suggests, “so stain a president as to make his continuance in office dangerous to public order.” Monstrous crimes acquire public significance. But lying about one’s sex life is not a monstrous crime. ” (Arthur Schlesinger, Jr., written testimony, Nov. 9, 1998.)
Another of us told the Judiciary Committee:
“Without question, an occasion could arise when it would be necessary to expand on the Framers’ language, to cover circumstances they may never have contemplated, including truly monstrous private crimes. I would hope, for example that any president accused of murder, even in the most private of circumstances, would be impeached and removed from office. ” (Sean Wilentz, written testimony, Dec. 8, 1998.)
So much for the House Managers’ claim that the historians’ position disallows impeachment in cases of murder and rape. The real question of pertinence to this proceeding is whether President Clinton’s confessed and alleged misdeeds meet this somewhat expanded standard, as explained by Professor Black, other constitutional experts, and the historians. The answer is clearly no – for no one, even among President Clinton’s harshest critics, has claimed that his confessed and alleged misdeeds are on a par with murder.
In short, to say, as the House Managers have, that the historians do not believe that murder or rape is an impeachable offense under the Constitution, amounts to a gross misrepresentation of the record. To bring up the examples of murder and rape with regards to this specific impeachment proceeding amounts to, at best, an irrelevant academic exercise and, at worst, a deliberate attempt to find some specious extra-constitutional grounds for impeaching President Clinton where no constitutional grounds exist.
III. How the House Republicans misrepresent the framers.
In his statement of Jan. 16, 1999, House Republican Manager Charles Canady quoted in full the following crucial passage from the 65th Federalist. He then provided his interpretation of what the passage meant. The contrast is striking. Hamilton clearly placed the focus of the impeachment process on political matters that directly damaged the social order. But through clever selective quoting, Canady turned Hamilton’s meaning upside down.
The Federalist Papers: Alexander Hamilton’s original writing:
“The subjects of [the Senate's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
Alexander Hamilton, “The Federalist: Number 65,” in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), p. 396.
The Federalist Papers: The House Republican Impeachment Managers’ Version
“Hamilton recognized that the focus of the impeachment process is on the ‘misconduct of public men’ or ‘the abuse or violation of some public trust.’ Impeachment is a remedy against officials ‘for injuries done … to the society itself.’”
“Statement before the Senate by Congressman Charles T. Canady in the Matter of the Impeachment of president William Jefferson Clinton” (1999).
Note how Canady’s version completely omits what Hamilton truly thought was the focus of the impeachment power, its political character, a word so important to Hamilton that he put it entirely in capital letters. Note, too, how Canady’s version by-passes the crucial word “immediately,” by which Hamilton tried to distinguish between direct assaults on our government and merely symbolic or supposed or indirect assaults.
Just as tellingly, perhaps, Canady made no reference whatsoever to the very next sentence in the 65th Federalist, in which Hamilton foresaw precisely the sort of partisan impeachment drive that afflicts us now:
“The prosecution of [impeachments],” Hamilton wrote, “for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; 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.” (Alexander Hamilton, “The Federalist: Number 65,” in Clinton Rossiter, ed., The Federalist Papers (1788; New York, Mentor, 1961), pp. 396-7.
Is it any wonder why the House Republican Impeachment Managers, spearheads of an almost purely partisan impeachment and removal drive, omitted this passage?
Let us emphasize once again, as we have done often before, that our concern is not to defend President Clinton. Our concern is to defend the constitutional principles that in the future as in the past will protect Republican as well as Democratic presidents.
Arthur M. Schlesinger, Jr.
C. Vann Woodward
Historians in Defense of the Constitution
2000 M. Street, N.W.