The Founding Fathers, High Crimes and Misdemeanors, and Impeachment
Miguel A. Faria, Jr., MD
When our Founding Fathers met during the deliberations of the Constitutional Convention in Philadelphia (May-Sept. 1787), they established the impeachment process as the constitutional remedy for those public servants who would potentially violate the public trust. The impeachment process was part of the carefully crafted system of checks and balances, separation of powers, and limited government with the consent of the governed, and other enlightened principles inherent to a constitutional republic. They deemed a republic to be the best and highest form of government, whereby men are endowed by their Creator with the inviolable and inalienable natural rights to life, liberty, property, and the pursuit of happiness. These natural rights preceded government and were granted by God, guaranteed by constitutional government, a government based on the judicious rule of law rather than the capricious rule of man, and ultimately enforced by the ordinary citizenry. As John Adams wrote in 1798: "Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
Be that as it may, our Founding Fathers recognized the fact that our public servants, our elected representatives and other government officials, were fallible men who could be corrupted and could break the chains binding them to the constitution to commit untold government mischief and subvert the republic. In fact, James Madison, the father of our constitution, in The Federalist Papers (No. 51) asserted regarding the need of impeachment: "It may be a reflection of human nature that such precaution may be necessary. But what is government but the greatest of all reflections on human nature?"
Although in response to Representative Bob Barr's (R-GA) call for an inquiry of impeachment of President Bill Clinton, congressional Democrats with some Republican support have, instead, called for a congressional censure of the president, as a bipartisan compromise measure, there's no constitutional authority or precedent for that type of rebuke.*
In 1834, a resolution of censure against President Andrew Jackson (U.S. President, 1829-1837) was passed by the Senate for his having opposed the establishment of the Bank of the United States and "assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both." Thomas E. Baker, director of the Constitutional Law Research Center at Drake University, writing in the Los Angeles Times (Sept. 21, 1998), pointed out that this censure of Democrat President Andrew Jackson "does not amount to much of a precedent...since three years later the Senate voted to expunge the resolution," and this opinion was supported by Senator Robert Byrd's (D-WV) compilation of the history of the Senate which concludes that "the censure of a president...lacks a constitutional basis."
As we shall see, Baker's conclusion --- that "the House power to impeach and the Senate power to try and convict are exclusive powers, and the sanctions of removal and disqualification from office are the only punishments possible" --- is historically and constitutionally sound.(1)
Impeachment, according to the Founding Fathers, was the remedy for those officials who through professional or personal misconduct violated the public trust and vitiated our republican form of government. Accordingly, Article VI, Paragraph 3, of our constitution provides, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...." And Article II, Section 4 notes, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
The Founding Fathers defined treason in Article III, Section 3, Paragraph 1: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
Bribery was, and remains, well understood, then and now --- namely, the intention to corrupt or influence, particularly public policy, by offering, or a government official accepting, something such as money or favor, quid pro quo, his vote or support in a particular public policy matter.
Which brings us to "other high Crimes and Misdemeanors." As constitutional lawyer Ann Coulter correctly notes in her book, High Crimes and Misdemeanors --- The Case Against Bill Clinton (Regnery Publishing, 1998): "The derivation of the phrase 'high crimes and misdemeanors' has nothing to do with crimes in English common law for which public servants could be impeached," but had much to do with dishonorable conduct or a breach in the public trust.
Indeed, in his influential Commentaries on the Constitution, Supreme Court Justice Joseph Story (1811-1845; the intellectual mate of Chief Justice John Marshall) explained: "The offenses to which the remedy of impeachment has been and will continue to be principally applied are of a political nature...[W]hat are aptly termed political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests."
James Madison explained the requirement for impeachment during the debates of the Constitutional Convention of 1787: "[S]ome provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers."
Alexander Hamilton explained in The Federalist Papers (No. 65) that impeachment of the president should take place for "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 society itself."
And, in The Federalist Papers (No. 70), Hamilton further explained: "Men in public trust will much oftener act in such a manner as to render them unworthy of being any longer trusted, than in such a manner as to make them obnoxious (subject) to legal punishment."
In short, one of the aims of the constitution was to ensure that virtuous men would become the nation's leaders, and impeachment was merely the remedy for those public servants whose misconduct resulted in betrayal of the public trust:
Article I, Section 2, Paragraph 5 charges, "The House of Representatives...shall have the sole Power of Impeachment [by majority vote]." In 1843, Whig President John Tyler (U.S. President, 1840-1844) who had become disaffected from within his own party had a motion of impeachment against him defeated by the full House of Representa-tives by a vote of 127 to 83.
Article I, Section 3, Paragraph 6 and 7, predicate, "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."
After the Civil War, President Andrew Johnson (U.S. President, 1865-1869; who as vice president had assumed the presidency following the assassination of Abraham Lincoln) was denounced by the Radical Republicans for his conciliatory reconstruction program for the conquered South. When Johnson tried to remove Secretary of War Edwin M. Stanton, who was plotting with congressional leaders against the president's programs, the Radical Republicans passed a resolution of impeachment against him in the House of Representatives on February 24, 1868 --- for "impeding the will of Congress" by violating the Tenure of Office Act, which had been passed by Congress to limit the executive power of the president to fire and hire government officials.
On March 5, the U.S. Senate heard the charges, tried but failed by one vote, to convict President Johnson. The story then took a titillating turn when Radical Republicans accused Senator Edmund Ross (R-KS), who had cast the deciding vote against the ouster of President Johnson, of having his vote swayed by the wiles of a charming woman, an attractive 20-year-old sculptor named Vinnie Ream. Miss Ream reportedly was sympathetic to the cause of the defiant president. Despite the swirling controversy at the time, Ms. Ream went on to finish the statue of Lincoln she had been working on for two years in the Capitol studio and which still stands today in the Capitol Rotunda.(2)
In 1974, we had the Watergate scandal that caused President Richard Nixon to resign in disgrace after he witnessed the House Judiciary Committee vote articles of impeachment against him. Hillary Rodham Clinton, then a young activist lawyer, sat on the legal staff of the Nixon impeachment inquiry which set forth a report on the "constitutional grounds for presidential impeachment." Ironically, Mrs. Clinton's very words on the defense of impeachment would come back to haunt her when Rep. Bob Barr (R-GA) quoted them in a letter** to the president's wife printed in The Wall Street Journal:
"...You said in 1974 that impeachment as understood by the framers of our Constitution, reflected the long history of the term used at least since late-14th-century England: 'one of the tools used by the English to make government 'more responsive and responsible'...
"You also noted then clearly in response to those who mistakenly claimed impeachment presupposes or requires a violation of criminal law --- that British history, to which our Founding Fathers turned for guidance, clearly envisaged impeachment as a tool to correct 'corruption in office' that 'alleged damage to the state,' and was 'not necessarily limited to common law or statutory...crimes'...
"You find support for your properly broad interpretation of 'high crimes and misdemeanors' in no less a legal scholar than Justice Joseph Story. I was in awe of your use of Justice Story's Commentaries on the Constitution (1833) supporting your proposition that 'impeachment...applies to offenses of a political character...[that] must be examined upon very broad and comprehensive principles of public policy and duty'..."(3)
But perhaps, most ironic were the words uttered by an Arkansas law school professor who was running for Congress in 1974. In February of that year, Bill Clinton explained "high crimes and misdemeanors" as follows: "I think the definition should include any criminal acts plus a willful failure of the president to fulfill his duty to uphold and execute the laws of the United States. [Another] factor would be willful, reckless behavior in office; just totally incompetent conduct of the office and the disregard of the necessities that the office demands."
And, on August 8, 1974, the young professor was quoted in the Arkansas Gazette: "I think it's plain that the president should resign and spare the country the agony of this impeachment and removal proceeding. I think the country could be spared a lot of agony and the government could worry about inflation and a lot of other problems if he'd go on and resign. [There is] no question that an admission of making false statements to government officials and interfering with the FBI and the CIA is an impeachable offense."
Despite the "mixed signals" results in the congressional elections this past November 3, members of Congress must do their duty and uphold their oaths of office. After all, we live in a constitutional republic where the judicious rule of written law, not the capricious rule of man (and fleeting and fashionable public opinion), is paramount.
Members of Congress have sworn to uphold the constitution, and this includes the unpleasant duty of proceeding with an investigation for possibly writing articles of impeachment, when a lawful independent counsel submits "substantial and credible information" that impeachable offenses have been committed by officials who have betrayed our trust and violated our constitution --- and this includes the President of the United States. The survival of the rule of law in our constitutional republic hangs in the balance --- and so does the strained moral and constitutional fiber of the nation. And I'm not thinking of the Monica Lewinsky affair but of perjury, suborning perjury, and witness tampering in this and other incidents; and of bribery and corruption in Whitewater and Travelgate; and obstruction of justice and abuse of power in Filegate and Chinagate.***
We owe it to the country to ascertain with certainty if the public trust (and the laws of the land) have indeed been violated by our sitting president and other government officials, and at the same time, we owe it to the cause of justice and the once exalted office of the presidency to exonerate the Chief Executive if the accusations are erroneous and invalid. Let the process of the rule of law move forward.
At press time, it seems doubtful that Congress will act appropriately. If that turns out to be the case and this episode in our nation's history is swept under the rug, then this editorial will serve as another humble notation for history on a Congress that now lacks the political will and a nation that now lacks the moral fortitude to move forward in the pursuit of truth and justice. Nevertheless, it must be said that going through this painful trial may be needed not only for the taming of corruption in the highest places within our government, but per-haps even more importantly, to force our government to return to the wisdom of our Founding Fathers and the limitations of power enumerated in our constitution. Yes, this constitutional trial by fire may be what is needed for the utter purification of our nation, mired as it is in the political and moral decadence of our times.
* Along these lines, in fact, following the November mid-term congressional elections in which the Republicans unexpectedly lost five seats in the House, congressional leaders have called for a truncated version of an inquiry of impeachment in the House to be completed before the end of 1998.
** This missive was written and published before the "sex-and-lies" Monica Lewinsky story broke in the mass media.
*** See "A Case for Impeachment," a special report by the editors of Human Events (Washington DC, 1997, 1-800-787-7557), published before the Monica Lewinsky story broke in January 1998 and which builds a series of 9 strong arguments for presidential impeachment (the first one also involves the vice president).
1. Caine CW. Office holder requirements (and impeachment).
Medical Sentinel 1998;4(6):224-225.
2. Sculptor molded rescue of Johnson. The Washington Times, National Weekly Edition, October 26-November 1, 1998, p.10.
3. Barr B. Mrs. Clinton's defense of impeachment. The Wall Street Journal, April 25, 1997.
Dr. Faria is Editor-in-Chief of the Medical Sentinel, the official journal of the Association of American Physicians and Surgeons (AAPS), and author of Vandals at the Gates of Medicine (1995) and Medical Warrior: Fighting Corporate Socialized Medicine (Macon, Georgia, Hacienda Publishing, Inc., 1997).
Originally published in the Medical Sentinel 1999;4(1):18-20. Copyright
©1999 Association of American Physicians and Surgeons.