IMPEACHMENT OF A PRESIDENT DOESN’T WORK AS THE FRAMERS INTENDED. HERE’s WHY

Framers

^^ the Framers misjudged the exportability of English impeachment method

Impeachment by the House of Representatives rests upon very few words : “…and shall have the sole power of impeachment.”

The duties given the Senate are much more spelled out :

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The punishments are dire. The Framers intended they be dire. Yet as we have seen, when a President is to be impeached nd then tried in the Senate, the impeachment powers fall short. Few of the President’s political party will vote to impeach, and almost none will vote to convict.

Why so ? Why can a President who has committed impeachable offenses not readily be impeached and, if impeached, not convicted ? Three factors impede the process : importation, election, and religion

The Framers adopted impeachment from English parliamentary practice. In 1787, it was parliament’s way of ousting public officials who committed “high crimes and misdemeanors,” a phrase which our Framers defined as “breaches of public trust.” Unhappily, America’s Congress lacked the political substructure that underpinned Parliament. Parliament was elected, the king and his officials not. Parliamwent was the voice of religious localism; the king, of religion centralized.

The parliamentary party had, from about the 1590s to 1649, been powered by a Puritan, congregational religious movement strong in the English middle class, which had gradually come to dominate elections to both parliament and local parish ministries. Meanwhile, the unelected Sovereign had committed itself to a highly centralized church led by appointed bishops, and demanding its version of the Christain catechism.

In effect, England of the 1590-1649 period had two separate goverments, operating upon two entirely separate theories of power supported by two entirely distinct establishments.

Parliament during that era did not have an impeachment mechanism (although impeachments had occurred in parliaments before that period. All they had were attainder — loss of property — and bills of treason. Thus the parliament of 1640-1649 used, to King Charles’s discomfiture. Our Framers wanted, for good and just reasons, to not make conflict between Congress and President a matter of life and death. After all, both Congress and the President were to be elected, and neither Congress nor President represented a religion in a religious war. Thus the Constitution saw impeachment as the voice of the entire electorate — as Alexander Hamilton put it, “a national inquest.” It might well have worked .

Because there is no war of religion afoot, wedded to either Congress or President, Congress has no need for institutional solidarity, and no sense that it as an institution is a necessary, primary opposition to the President. Indeed, our Congress is elected by all the voters of a District, who may include a large number of Presidential adherents, or even a majority thereof, whereas — to reiterate — the English parliaments of 1590-1649 were elected almost entirely by the squire class of property holder who were the chief supporters of congregational religion and thus chief opponents of the Sovereign and his religious enforcers.

The framers were well aware of party faction and of its danger to the working of their republican system. I do not think, however, that the framers realized that their impeachment power was an historical anachronism lacking, here, the conflict conditions that gave it force in English practice. If we have learned anything from the two impeachments of President Trump, it is that the impeachment power in our Constitution does not conform to the imperatives of American politics.

England in the 1590-1649 period was beset by the war between Catholics and various Protestant sects, and of wars among Protestant sects, going on all over Europe at that time. By 1787, men had decided that religious war and a politics arising from it were well discarded. Unhappily, when granting the impeachment power, they did not see that politics without religion would have to rest on some other power foundation, oaths of office and personal principle not being sufficient. Hamilton’s “national inquest” can’t be assembled when the inquesters are divided by parties, to one of which the President belongs. We would all like oaths of office to be the only support that Congress members need when being asked to impeach a President. Yet it is not the case. The President and members of Congress are elected on the same ballot on the same day, and they are thus bound together.

In today’s America, the only foundational power upon which politics of impeachment can rest is the law. Which means legal punishments which, in our nation, are imposed by legal systems — the Courts. Add to this the power of public opinion, an unwritten movement and thus beyond the restrictions in a written Constitution.

It will have to be the Courts that decide the political fate of President Trump, and public opinion, which will decide not only his political fate and is doing so already: a power more drastic than what is written and which is more drastic and less civil than the framers intended a “national inquest” to be. It will be public opinion that ousts Mr. Trump from the respect and honor due honorable public men. It will not be pretty, and the ouster is more than richly deserved. Mr. Trump called for, organized, marshalled, planned, and led an insurrection against our democracy built upon lies and more likes. The nation, if not the Congress, will have its say unchecked by writings. And this is where we are.

—- Mike Freedberg / Here and Sphere