Impeachment, The Rusted Hammer
By using the process of impeachment so rarely throughout American history, Congress has taken a valuable check and balance and rendered it nearly useless.
This article is from The Liberty Hawk’s 2019 archives, first published in the days leading up Donald Trump’s first impeachment. With the rusted hammer being dusted off once more and with growing voices lamenting a possible precedent being set for the overuse of the impeachment power, the republishing of this article seemed both timely and pertinent.
By using the process of impeachment so rarely throughout American history, Congress has taken a valuable check and balance and rendered it nearly useless.
In this tradition of self-appointed impotence, we have narrowed the scope of impeachable offenses so thinly that impeachment, let alone a conviction, is virtually impossible. A de facto result of this calamity is that the President of the United States is, for all intents and purposes, entirely above the law and beyond meaningful reproach or censure. We have recreated the tyranny of Ancient Greek Democracy. Demagogues need only excite the passions of the people to maintain their power and their offices, answerable to no law nor a higher sense of moral behavior or demeanor.
Impeachment Separates Presidents from Monarchs
In Federalist №65, Alexander Hamilton points out that the British “regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?”
Hamilton also penned Federalist №69, an essay whose theme suggests that the congressional power of impeachment draws a clear line of separation between a President and a King. A King is above the law and any standards of conduct. By granting the power of impeachment to the Legislative Branch, a president is rendered answerable to the law and answerable to Congress for his behavior.
George Mason, another founding father, echoes this idea of impeachment’s importance when he said, “No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice?”
Many founders echoed the importance of impeachment as a check and balance on the power of the Presidency. William Davie said that impeachment is “an essential security for the good behavior” of the President. Elbridge Gary pointed out that while a good president would have no fear of impeachment, a “bad one ought to be kept in fear.”
Can we honestly say that impeachment in current use and definition resembles in any way a bridle upon the executive, an essential security for good behavior, or a power that keeps a president in fear?
The constitutional requirements alone assure the difficulty of impeaching and removing a president, yet we have added to this bulwark high demands upon even the suggestion of impeachment. No president truly fears impeachment.
If impeachment has become “an impracticable thing, a mere scarecrow” as Thomas Jefferson noted as early as 1820, and if the founders designed impeachment as one of the clear lines of separation between a president and a king, can we not reasonably state that a president with no fear of impeachment is above the law and beyond the reach of moral expectation?
Impeachment Too Narrowly Defined
Today, many narrowly define impeachment as an almost purely criminal consideration. Moreover, they place a requirement of near absolute certainty of conviction and removal before they even consider impeachment. These developments are in direct contrast to the purpose of impeachment, as laid down by the founders.
Returning to Hamilton’s discussion of impeachment in Federalist №65, it is stated in no uncertain terms, “The subject of its 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 upon society itself.”
Impeachment is a political process. Its jurisdiction is not only criminal acts but misconduct and a breach of public trust. As an essential and powerful check and balance on the executive branch, it can be whatever improper behavior Congress deems fit for impeachment.
As was stated earlier, the rigorous constitutional requirements for impeachment and conviction provide the proper balance of this legislative power. Jefferson even argued that these high constitutional requirements alone render the process “completely inefficient” as a legislative check on the power of the other branches of government.
The march of history has placed Congress in the shadow of executive authority. Is there truly a need to limit the scope of impeachment by narrowing the list of impeachable acts to protect the more powerful and energetic office of the Presidency? This view has only served to render impeachment a wholly empty and ineffectual check on the executive branch.
The founders’ true intent for the power of impeachment shouts at us from the dust, joined by other sages across history:
James Madison tells us that impeachment is “indispensable…for defending the Community [against] the incapacity, negligence, or perfidy of the chief Magistrate.”
Edmund Burke states clearly that, “It is by this tribunal that statesman [are tried] not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of morality.”
Thomas Jefferson asks us, “How to check the unconstitutional invasions of rights?” and answers first “by a strong protestation of both houses of Congress” and then, if there is a “relapse into the same heresies,” to “impeach and set the whole adrift.” He concluded by saying, “For what was the government divided into three branches, but that each should watch over the others and oppose their usurpation.”
As to the reticence to even consider impeachment before a conviction is assured, Benjamin Franklin pointed out the need for “a regular and peaceable inquiry,” which could allow the guilty to be “duly punished” while the innocent can be “restored to the confidence of the public.”
The process of impeachment not only provides a mechanism for censorship and removal but the preservation of the honor and dignity of the office. Impeachment should be just as vigorously supported by those who support the accused. It is a means of an open and public inquiry to clear their name and assure the people of these United States that the President is not above the law nor beyond reasonable demands for moral and just behavior.
A Proper Definition of High Crimes and Misdemeanors
Before a US President assumes his authority and responsibility, he takes an oath of office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
This is no mere formality. Far more than nice words inaugurating presidential office, it is a legal and binding act required to assume executive authority. By constitutional decree, the President takes an oath and remains under oath as they exercise the office. This requirement and responsibility define high office in the American Republic.
Because the actions of the chief executive carry higher weight and consequence than the actions of any other government officer, the expectations of someone who fills that office should be higher than any other government responsibility. Any misconduct committed by someone in high office has demeaned not only their self but the office they hold. They have demeaned themselves while under oath, an act that should be more consequential than other violations by other citizens, not less. High crimes and misdemeanors are defined by the nature of the office, not by the nature of the act.
And to what mechanism does a president who demeans their office answer? Under the Constitution, they answer to impeachment alone. Every act we choose to consider beyond the scope of high crime and misdemeanors is an act we grant the President carte blanche to commit. Through the narrow consideration and use of the powers of impeachment, Congress has placed the Presidency above the law, and beyond the moral behavior we reasonably expect from everyone else in society.
Having not been energetically wielded, the hammer of impeachment has rusted into nothingness. The designs of the Constitution are frustrated. Acts of presidential power are not more personally consequential; they are less. Moral degradation and violations of dignity do not have more accountability; they have less. Even if presidential conduct does rise to blatant criminality, a President would prove to be mostly above the law. The only path to meaningful censorship and removal has atrophied from serial disuse.
An executive officer who stands above his fellow citizens as ours now stands is more fit to be called “Your Majesty” than “Mr. President.”
It should not be unreasonable to decry the narrow definition of high crimes and misdemeanors as purely criminal. Given the importance of the office of the Presidency, Congress should not flinch from defining high crimes and misdemeanors as any act that demeans the office, violates the public trust, or betrays the oath of office.
It’s Never Too Late to Change Course
Despite the cobwebs gathering thick across the surface of this rusted hammer, impeachment as an energetic check and balance of the Presidency remains a tool Congress can dust off, polish, and wield to significant effect.
In many ways, the current and most recent presidencies demonstrate the very conditions for which the founders crafted the checks and balances of our Republic. No tool at the disposal of the people and the people’s representatives should be left idle. The Presidency itself represents the most apparent threat to the domestic tranquility of the United States. Emotions and anxieties heightened by the consequences of presidential elections and the actions taken by Presidents with near impunity threaten the very future of the Union.
The Presidency is the last office we need to be worried about damaging or belittling. Congress and the system of federalism are the institutions and ideas we need concern ourselves with saving. Indeed, the very fabric of the Constitution hangs by a thread.
Many are concerned with the idea of expanding the scope of impeachment. I hope I have demonstrated through the course of this article that the question isn’t one of expansion. It is a matter of wielding it to accomplish its intended constitutional purpose. The damage to consider is the damage we have wrought by allowing the hammer of impeachment to rust and wither away.
