No, the Framers Didn’t Screw Up Impeachment

The problem is with our politics, not our institutions.

Martin Longman argues “The Founding Fathers Screwed Up the Impeachment Process” because they failed to anticipate the rise of political parties.

It did not take the Founding Fathers very long to discover that they’d made a major screwup in their crafting of the U.S. Constitution. On December 9, 1803, an amendment was introduced to change how we do presidential elections. Specifically, the 12th Amendment was necessary because party-line voting had already developed in the Electoral College. In the 1800 election, this resulted in a tie when every member of the Democratic-Republicans Party voted for both Thomas Jefferson and Aaron Burr for president. It became clear that they would have to abandon the original system whereby each Elector cast two votes for president and the second-place finisher became the vice-president. Instead, there would be a separate vote for vice-president.

In truth, the failure to anticipate factional behavior had already become a problem during the presidency of John Adams. Thomas Jefferson became Adams’ vice-president because he finished second in the presidential election. They did not work well together. I don’t think Jimmy Carter would have been a very good vice-president to Ronald Reagan either, so it’s not hard to see why the first framework needed a quick overhaul.

I’m with him so far. It’s rather clear that, despite Madison’s famous discussion of the evils of faction in Federalist 10, that the gentlemen who convened in Philadelphia to design a replacement for the Articles of Confederation failed to understand the implications of party politics. But, as Longman rightly notes, they quickly fixed the issue with regard to the Electoral College.

What about impeachment?

Perhaps a similar lack of imagination led them to assign the role of jury in the impeachment process to the U.S. Senate. Just as they didn’t anticipate that the second-place finisher in a presidential election would be a natural antagonist of the first-place finisher, and they failed to predict that Electors would vote along party lines, they may have overestimated the senators’ willingness to convict and remove a criminal president in cases where the president is the leader of their faction.

Currently, Senator Mitch McConnell of Kentucky is the leader of the most powerful faction in the Senate. He actually controls a majority of the seats. The president belongs to this same faction. If the Founding Fathers had anticipated that a faction could grow so large as to control a majority in the Senate, it’s doubtful that they would have seen their model for impeachment as an adequate protection against tyranny. In fact, since they set the conviction threshold for impeachment at two-thirds of all senators voting, it’s doubtful that they would have seen it as adequate in a world where a faction can control even one-third of the votes.

Clearly, they made a mistake, but there has been no amendment to the Constitution to rectify the problem.

Maybe because there’s no agreement that there’s a problem?

Impeachment is an extreme tool reserved for extreme circumstances. Wikipedia claims without citation that “The House of Representatives has actually initiated impeachment proceedings 62 times since 1789. Two cases did not come to trial because the individuals had left office.” Of these, “Actual impeachments of 19 federal officers have taken place. Of these, 15 were federal judges: thirteen district court judges, one court of appeals judge (who also sat on the Commerce Court), and one Supreme Court Associate Justice. Of the other four, two were Presidents, one was a Cabinet secretary, and one was a U.S. Senator. Of the 19 impeached officials, eight were convicted.”

So, in the course of 229 years, we’ve only started impeachment proceedings 62 times, impeached someone 19 times, and removed 8 of them. We hardly ever need the Senate to adjudicate the matter.

We’ve impeached two Presidents. Neither were convicted by the Senate, despite being guilty. Which was probably the right call in both cases.

Andrew Johnson clearly violated the Tenure of Office Act. It was almost certainly unconstitutional. Removing him would have been a travesty.

Bill Clinton did literally everything of which he was accused.

Article I charged that Clinton lied to the grand jury concerning:
– the nature and details of his relationship with Lewinsky
– prior false statements he made in the Jones deposition
– prior false statements he allowed his lawyer to make characterizing Lewinsky’s affidavit
– his attempts to tamper with witnesses

Article III charged Clinton with attempting to obstruct justice in the Jones case by:
– encouraging Lewinsky to file a false affidavit
– encouraging Lewinsky to give false testimony if and when she was called to testify
– concealing gifts he had given to Lewinsky that had been subpoenaed
attempting to secure a job for Lewinsky to influence her testimony
– permitting his lawyer to make false statements characterizing Lewinsky’s affidavit
– attempting to tamper with the possible testimony of his secretary Betty Curie
– making false and misleading statements to potential grand jury witnesses

At the time, I strongly believed Clinton should have resigned his office in disgrace and that the House was right to impeach him. But I was in a minority of public opinion and, despite Clinton’s obvious guilt, five Republican Senators voted to acquit him on both charges.

Richard Nixon would almost certainly have been impeached and removed had he not resigned of his own volition. While Congressional Republicans stood with him during the first months of the Watergate scandal, most eventually abandoned him when the extent of his crimes became undeniable. The public demanded his removal from office.

I believe Donald Trump’s conduct in office has been far worse than that of Nixon, much less Clinton. Were I a member of the House, I would vote to impeach. Were I a member of the Senate, I would vote to convict.

It would, however, been seen as illegitimate.

Trump still enjoys overwhelming support from Republicans and 45.1 percent of the public at large still approves of his job performance, according to the RealClearPolitics aggregate. Removing him under those circumstances would be seen as a coup.

The bottom line is that, if a President’s crimes are of sufficient magnitude that he needs to be removed from office, he’ll lose support from his party. In which case the supposed defect of the impeachment system will no longer be an obstacle.

FILED UNDER: Congress, Donald Trump, Impeachment, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    To the extent there’s a problem with impeachment, it’s an extension of the core problem with the senate, where all states are guaranteed equal representation, but with no limits on what is allowed to be a state, it’s becoming increasingly anti-democratic as a handful of tiny states are given a veto power over the entire federal government.

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  2. Andre Kenji de Sousa says:

    The problem of impeachment is that they are political processes where the Parliament votes to get rid of the head of the Executive. Institutions only protect voters against their bad votes to a certain extent, and unelected institutions like the Judiciary have their own self interests.

  3. @James:

    It’s rather clear that, despite Madison’s famous discussion of the evils of faction in Federalist 10, that the gentlemen who convened in Philadelphia to design a replacement for the Articles of Confederation failed to understand the implications of party politics.

    Any reading of “faction” as meaning “political party” (which is often the way some textbooks talk about Fed 10) is incorrect. Indeed, Fed 10 is part of Madison’s theory that factions would emerge over specific issues and not be permanent. So it really isn’t a “despite” situation–Madison was proffering a different theory of politics in Fed 10 than one that was predicated on parties, which were far more permanent than constantly shifting factions would be.

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  4. Actually, I think that the failure to understand parties along with a lack of understanding the consequences of the Senate as designed underscores failures both in terms of impeachment, but also amendment.

    Impeachment and removal from the president is essentially limited to only something so egregious that the president’s party would turn against him. Party is more important, as I keep arguing, than institutional prerogatives (which what the Framers thought would dominate).

    Trump was basically right that he could stand in the middle of Fifth Avenue and shoot someone and very likely still avoid removal. After all, the guy probably had it coming and Gorsuch and Kavanaugh, dontcha know.

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  5. Kathy says:

    Three was a joke once in MAD Magazine to the effect that a sports team owner fired all his players and kept the head coach.

    Maybe it’s time for the GOP to fire its base.

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  6. Kathy says:

    What we see is that impeachment of the president is possible in rare occasions, but that removal requires the majority of voters to demand it. Though there was no formal impeachment of Nixon, even though the House was already drawing up articles, we can take Nixon as an example of a president removed from office, even if he technically said “You can’t fire me. I quit!”

    If this is the case, then why not have the House instead tasked with the duty to set up a recall election? Plain majority vote nationwide.

    Yes, I am aware this would require a Constitutional Amendment and it would never pass.

  7. gVOR08 says:

    @Stormy Dragon: Quite right. The problem isn’t Impeachment, the problem is the Senate. By 2040 70% of Americans will live in 15 states. The remaining 30% will have 70 senators. Saw someone explain that the reason small states like the Dakotas tend to have powerful, high seniority senators is simply that the’re cheap. In a state with only one or a few media markets it’s easy for their lobbyists to buy their reelection.

    Fram Jane Mayer, Dark Money,

    The (Koch) brothers realized that their brand of politics didn’t sell at the ballot box. Charles Koch became openly scornful of conventional politics. “It tends to be a nasty, corrupting business,” he told a reporter at the time. “I’m interested in advancing libertarian ideas.”

    The Kochs were not alone. As they sought ways to steer American politics hard to the right without having to win the popular vote, they got valuable reinforcement from a small cadre of like-minded wealthy conservative families who were harnessing their own corporate fortunes toward the same end. Philanthropy, with its guarantees of anonymity, became their chosen instrument. But their goal was patently political: to undo not just Lyndon Johnson’s Great Society and Franklin Roosevelt’s New Deal but Teddy Roosevelt’s Progressive Era, too.

    In an earlier thread I commented on “drift” the idea that the well off are OK with the status quo and are content with nothing being done. The Senate is the perfect anti-democratic instrument for making nothing happen. Except judicial appointments.

    Vote Blue.

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  8. gVOR08 says:

    @Steven L. Taylor:

    Trump was basically right that he could stand in the middle of Fifth Avenue and shoot someone and very likely still avoid removal.

    He certainly wouldn’t be indicted by Barr’s DOJ.

  9. Andre Kenji de Sousa says:

    Impeachment usually happens when the Congress wants to get rid of the President. It might be because the President is unpopular, it might be simply be because getting rid of the President is convenient for Congress.

    It’s simple as that. Take a look at the countries that impeached their Presidents in the last few years.

  10. James Joyner says:

    @Steven L. Taylor:

    Any reading of “faction” as meaning “political party” (which is often the way some textbooks talk about Fed 10) is incorrect. Indeed, Fed 10 is part of Madison’s theory that factions would emerge over specific issues and not be permanent.

    Agreed. But Madison was clearly wrong. It’s only natural that factions will unite into blocks along similar interests. The way it has happened was unpredictable. That it would happen, though, seems obvious.

  11. Eric Florack says:

    since every Republican president since Eisenhower has suffered under an impeachment attempt by the Democrats, maybe the problem is not the design of the impeachment process but the abuse of it by one of the factions.

    Just something to consider…

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  12. @Eric Florack: You must be applying a rather wildly expansive definition of “suffered under an impeachment attempt.”

  13. DrDaveT says:

    The bottom line is that, if a President’s crimes are of sufficient magnitude that he needs to be removed from office, he’ll lose support from his party.

    I used to believe that, too. Then again, I used to believe in the Easter Bunny…

  14. DrDaveT says:

    @Steven L. Taylor:

    You must be applying a rather wildly expansive definition of “suffered under an impeachment attempt.”

    No, Steven, he’s not. He’s just making sh!t up. It’s what Republicans do these days, since trying to deal in reality has utterly failed to support their preconceptions.

  15. al Ameda says:

    @Eric Florack:

    since every Republican president since Eisenhower has suffered under an impeachment attempt by the Democrats, maybe the problem is not the design of the impeachment process but the abuse of it by one of the factions.
    Just something to consider…

    I, for one, have always considered Richard Nixon to have been unfairly investigated. I think we all know that the Watergate break-in was a hoax, and the FBI was spying on Nixon. Also, the attempts to impeach both George H.W. Bush and George W Bush both involved years of partisan investigations and millions of dollars in expense.

    All of this begs the question: Why didn’t Republicans investigate and impeach Bill Clinton?