Published by The Lawfare Institute
in Cooperation With
Fearful of the potential for unlimited, arbitrary or tyrannical exercise of power by an unprincipled president, the Constitution’s authors allowed Congress to remove a president before the completion of his term if a sufficient number of lawmakers concluded that the president had committed “Treason, Bribery, or other high Crimes and Misdemeanors.”
This was intended to address a dilemma at the core of American national security. The founders were concerned that an insufficiently powerful executive would be unable to vigorously defend the nation. But they also feared that an unchecked executive could undermine national security and civil liberties alike if he decided to place his own interests above those of the nation. The Constitution’s framers therefore sought to find a safety feature for cases of extreme abuse of power that, nevertheless, did not unduly impede, paralyze or disable the nation’s security. Impeachment was their solution.
One of the most significant yet underappreciated lessons of the history of impeachment is that it was intended as a tool to strengthen the nation’s security—specifically to chart a middle path between an unlimited and unaccountable presidency and one that was insufficiently powerful to protect the nation.
Impeachment originated in England as a method to hold royal officials to account for their public actions—although at that time it was restricted to officials and not to the king. Intended to curtail monarchical absolutism and replace it with parliamentary oversight, impeachment subjected royal officials to trial for public offenses. This included “certain high treasons and offenses and misprisions,” a phrase that appeared as early as 1386, although the precise term “high crimes and misdemeanors” did not appear until 1642. Moreover, according to the British model, officials convicted of impeachment were subject to a range of punishments including fines, imprisonment and the possibility of execution. The practice traveled across the Atlantic in the 17th century and found use in the American colonies as early as 1635. Because the English framework excluded the king from accountability, America’s founders determined that they needed to modify the English practice so as to prevent both the abuses of royal tyranny and the chaos engendered by weak central government.
To the early Americans who had fought a war against monarchy, the accumulation and arbitrary use of power were dangerous. As the historian Jeffrey Engel has written, the central question of their entire era was “what form of government could therefore be entrusted with the power it required, without simultaneously employing that power to undermine liberty? More specifically, in whose hands could such power possibly be trusted?” The answer they came up with was a mixed government consisting of executive, legislative and judicial branches, where the executive would exercise power but would also be dependent on, and constrained by, the other branches. Impeachment became one of the necessary tools—perhaps the central tool—to constrain the president. In this reading, impeachment became central not only to the U.S. Constitution but to the American idea of liberty—and was intended as a safeguard against the despotic accumulation and use of power by a president.
This argument was subsequently expanded by Alexander Hamilton in the “Federalist Papers.” In several essays discussing the powers of, and constraints on, the president, Hamilton argued in favor of a powerful and energetic executive, positing that it was not the same thing as absolute monarchy because there were multiple restraints on a president’s power, including institutionalized checks and balances between the executive, legislative and judicial branches of government; regular elections; and, as a last line of defense, impeachment. In many ways, the ability to empower while simultaneously constrain was the central dilemma the Constitution’s drafters faced. Nowhere could this be seen as clearly as in the debates surrounding the presidency and Congress’s powers of impeachment.
The Constitution gave sole powers of impeachment—the right to lay down a formal accusation or charge—to the House of Representatives and stipulated that, while the chief justice would preside at the trial, it was the Senate that would sit as both judge and jury, trying the accused. Presidents and other civil officials including federal judges could be impeached, and impeachable offenses were enumerated and limited to “Treason, Bribery, or other high Crimes and Misdemeanors.” While the Constitution remains silent on the legal standards for the process by which a president should be tried, or the standard of proof required for removal from office, it explicitly states that conviction and removal requires a two-thirds vote, and the only punishments available are removal and disqualification from holding office ever again. Other punishments were possible, but only after the charged party had been removed from office.
Examining the debates surrounding these clauses is especially revealing, as it explains not only what ended up in the Constitution but also the logic and intent behind those words as well as the ideas that were rejected.
The first question taken up at the Constitutional Convention was whether impeachment was even necessary. Weren’t regular elections enough of a check on a president’s behavior? Rufus King of Massachusetts pointed out that elections meant that the president “would periodically be tried for his behaviour by his electors.” Moreover, wouldn’t placing the president’s fate in the hands of the legislature place the president in a subservient position to the legislative branch?
Both of these opinions were decisively rejected. Fears that impeachment would render a president impotent or subservient to Congress were mitigated by setting a high standard for what constituted an impeachable offense and by making conviction require a two-thirds vote in the Senate. Such a combination meant that impeachment would be exceedingly rare.
The framers also found elections a necessary but ultimately insufficient safeguard for preventing the country from succumbing to an authoritarian leader. “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious?” Benjamin Franklin asked before answering his own question: “Why recourse was had to assassination.” That was an outcome they clearly wanted to avoid. So, too, according to Edmund Randolph, were “tumults & insurrections.” Instead, they settled on making the president accountable and giving the legislative branch the legal mechanism to remove him from office. These debates reveal fears that republican government was vulnerable to a president with authoritarian instincts. They also underscore concerns that, without a mechanism for the safe and lawful removal of the president, the nation’s stability was likely to suffer.
“No point is of more importance that the right of impeachment,” George Mason argued, asking his fellow delegates, “Shall any man be above Justice?” James Madison agreed that it was “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient safeguard.” That was especially true as the president “might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”
Here was the rationale for providing an extra check on presidential wrongdoing and an enumeration of what types of actions—incapacity, negligence, treason, corruption or oppression—should lead to impeachment. But this list was deemed too ambiguous, especially when the ill-defined “maladministration” was added to the mix. This had to be narrowed, and Gouverneur Morris argued that any charges of impeachment “ought to be enumerated and defined.”
The framers settled on “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two were clear enough from a definitional perspective, but the Constitution’s framers found them not sufficiently broad to serve as a sufficient safeguard. For them, criminality was neither necessary nor sufficient, even if it made the case clearer and more comfortable. The Constitutional debates reveal that the addition of “high Crimes and Misdemeanors” was key as it signified the framers’ belief that an impeachable offense need not be a crime at all. Borrowing this phrase from previous British legal practice, the Constitution’s authors reasoned that there were “many great and dangerous offenses” that would not necessarily meet the precise definitions of either treason or bribery but that nevertheless would constitute an egregious abuse of power, an imperiling of national security or a betrayal of national trust.
Even if precise definitions remain elusive for “high Crimes and Misdemeanors,” British legal history, the deliberations at the Constitutional Convention and the subsequent ratification debates imply that such offenses were understood by the Constitution’s writers as profound political crimes committed against the state with grievous implications for the proper functioning of the country’s democratic processes. Presidents ought to be removable, not for general and vague reasons, but rather for specific abuses of the public trust. While the process would likely prove highly destabilizing and leave lasting scars on the country, it was also deemed necessary.
History suggests several conclusions about the intended use of impeachment, the parameters that have been drawn around its employment and the elasticity it was intentionally given.
First, the Constitution was designed as a delicate, deliberate balancing act. It was meant to balance the powers of the various branches of government, federal and state authorities, and, at a more abstract level, the occasionally conflicting demands of liberty and order. Striking the right balance was the challenge that the Constitution’s framers faced, and nowhere was it more acute than in the office of the presidency. Rendering the executive too powerful would give it the capabilities to suppress individual liberties and subvert democratic government. But leaving it too weak, or too dependent on Congress, would rob it of the necessary vigor to enforce the laws, keep good order and stave off chaos. Perhaps the central question of the Constitutional Convention was how to strike the right balance between too enfeebled and too powerful a president.
The men who gathered in Philadelphia in the summer of 1787 did so with the intention of restoring that balance. Americans had rejected monarchy in their war for independence but experienced disunity and disorder in the period after independence. Their lived experience had convinced many of the country’s leading political figures that the federal government required strengthening. In practice, this would mean endowing the executive branch with enhanced capabilities and broadened powers.
That, however, was not the same thing as a blank check. Hamilton, generally regarded as one of the most forceful advocates for a vigorous government, argued for empowering the executive branch. But he consistently tempered those calls with analysis of why the American presidency differed from the British monarchy. The main points of differentiation were oversight and punishment.
Second, the American Revolution had been justified as a fight against unlimited, arbitrary and unaccountable abuse of power by a remote king. Without sufficient safeguards, any exercise of power was likely to lead to a similar end. “The first man put at the helm will be a good one,” Franklin commented at the Constitutional Convention. That was not the issue, because all present in Philadelphia suspected, rightly, that George Washington would become the first president. The question was what would happen in the future as, Franklin observed, “No body knows what sort may come afterwards.” In the worst case, the Constitution’s authors fretted that “men of factious tempers, of local prejudices, or of sinister design, may, by intrigue, by corruption, or by other means” obtain high office and betray the public trust.
To safeguard against an excessively ambitious individual putting his personal or political interests above those of the nation, they deliberately sought institutional mechanisms to constrain an individual with authoritarian, treasonous or corrupt impulses. Divided government where the various branches competed with, and intruded into each other’s spheres, was the first line of defense against such a power grab. Regular elections were another. But the Constitutional Convention debates reveal that neither of these was deemed sufficiently robust in the case of an individual bent on subverting democratic processes or undermining the nation’s security. Impeachment was the constitutionally prescribed response for how best to protect the nation when neither checks and balances nor regular elections proved sufficient.
A look at the constitutional debates also reveals that impeachment was not intended as a punishment but, rather, as a vital protection intended to remove a president whose continuance in office would likely result in further damage to the country. Whereas the British had allowed for the punishment of officials, the American practice did not make any stipulations beyond removal from office—and leaving open the potential for future prosecution. Impeachment was intended as a rare but necessary safeguard to the security and proper functioning of the nation’s democratic processes. Its intent was defensive, which required expeditious removal of the president from office, lest he repeat actions deemed gravely harmful to the proper functioning of the state. Charles Black, the constitutional law scholar and author of the authoritative 1974 essay on impeachment, observed that “we could punish a traitorous or corrupt president after his term expired; we remove him principally because we fear he will do it again, or because a traitor or taker of a bribe is not thinkable as a national leader.” In the absence of a constitutionally prescribed remedy, efforts to remove such individuals from power were likely to be highly violent—as America’s recent history of revolution against England underscored.
Moreover, just because the Constitution prescribed a legal mechanism from removing a president from office did not mean that impeachment would be stabilizing. As Hamilton foresaw more than two centuries ago, impeachment will “agitate the passions of the whole community” and connect to “pre-existing factions,” and the outcome will be determined less by “real demonstrations of innocence or guilt” and more by the competitive strength of the parties. It is precisely because of the contested nature and depth of the alleged harm done that impeachment has always been a ferociously partisan and highly divisive affair.
Yet, despite knowing that impeachment would likely prove destabilizing, the Constitution’s framers nonetheless incorporated impeachment into the U.S. Constitution as a necessary defense of the nation’s institutions and values against an unprincipled and unrestrained individual. Impeachment was intended not just as a remedy of last resort but also one that should be considered only in rare cases where presidential actions were deemed harmful to American society. James Iredell, later a Supreme Court justice, argued at the North Carolina ratification debates that “the occasion for its exercise will arise from acts of great injury to the whole community.” This was very much in keeping with the definition of “high Crimes,” as understood by the founding generation. William Blackstone, the leading British legal scholar of the late 18th century, wrote in 1792 that such wrongs were “a breach and violation of the public rights and duties” and “strike at the very being of society.” Such offenses were understood by the Constitution’s writers as assaults on civil order and governance itself.
Because impeachment levels such a grave charge, it was intended to be both political and public. This was intentional. Neither the Constitution, nor the proper functioning of the country’s democratic process, nor the nation’s sovereignty could survive sustained assaults in the absence of vocal and vigorous defenders.
Ultimately, the Constitution left it to the judgment of the House and the Senate to determine when, in the words of Hamilton, “the abuse or violation of some public trust” amounted to “injuries done immediately to the society itself” and required removing the president from office, lest his continued occupation of the presidency do further damage.