The statements this week by House Speaker Nancy Pelosi, D-Calif.,asserting that the impeachment of President Donald Trump is not warranted absent investigative developments that are “overwhelming, compelling and bipartisan” are not only disappointing to liberals. They’re also historically inaccurate, and run contrary to the intention of the framers of the Constitution.
And, her cramped formulation of the use of impeachment power was refuted 25 years ago in a staff report of the House Judiciary Committee, which outlined the history and legality of impeachment at the outset of the committee’s inquiry of President Richard Nixon.
The authors of that report, “Constitutional Grounds for Impeachment,” examined both the original meaning ascribed to impeachment by the drafters of the Constitution as well as historical origins of “high crimes and misdemeanors” — the grounds for impeachment — in Britain for four centuries before its drafting. And the myths about impeachment they skewered then remain relevant to Democrats considering any exercise of that power today.
For instance, the report examined the idea that the framers meant for impeachment power to be exercised rarely and only if the evidence for it is “overwhelming.” They found instead that, historically, the impeachment of high government officials regularly occurred in England for both criminal offenses and abuses of power; 100 impeachment proceedings were initiated by Britain’s House of Commons between 1620 and 1649.
According to the committee staff’s 1974 report, these historical impeachments had two common traits: all involved misconduct against the state, including abuse of power or encroachment on Parliament’s authority; and none necessarily required a violation of criminal law.
Further, the delegates to the Constitutional Convention (and those later arguing for the ratification of the Constitution) all acknowledged that our impeachment clause was based on the British experience. In “Federalist No. 65,” Alexander Hamilton bluntly stated that the model of impeachment “has been borrowed” from Britain.
Even the term “high crimes and misdemeanors,” the basis for impeachment written into the Constitution, was incorporated directly from and based upon British usage. As the Judiciary Committee staff report stated: “’High crimes and misdemeanors’” has traditionally been considered a ‘term of art.’”
The report added: “The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them.”
The litany of potential impeachable offenses by President Trump is lengthy and serious, and many mirror abuses identified by the framers themselves. Here are a few examples:
James Madison advised during the first session of the First Congress that the president could be impeached “for wanton removal of meritorious officers,” which could well describe the firing of FBI Director James Comey.
George Mason, during the debates in the Virginia convention regarding ratification, warned that a president might seek to “pardon crimes which were advised by himself” or, if prior to indictment, “to stop and prevent detection.”
James Madison responded that such would be grounds for impeachment: “[I]f the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.” It’s already been alleged that Trump or his lawyers have dangled pardons to indicted members of Trump’s circle.
In that same Virginia convention, Edmund Randolph cited a president’s receipt of presents or emoluments from a foreign power as an impeachable offense — and, of course, it’s been regularly reported that foreign guests have been staying in Trump International Hotel in D.C., and potential foreign donations to the Trump Inaugural Committee through a shell corporation are currently being investigated.
Alexander Hamilton in 1788 wrote in “Federalist No. 66” that, if the president encroached on the powers granted exclusively to Congress, impeachment could remedy that encroachment. Meanwhile, President Trump declared a national emergency in order to use funds to build a border wall after Congress refused to appropriate them.
However, many Democrats today have suggested that the House should not begin any impeachment inquiry absent a reasonable expectation that the Senate would convict. But according to Benjamin Franklin, impeachment proceedings were suitable whether the president was ultimately convicted or not. He suggested instead that impeachment power would be exercised for the “regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”
Some modern Republicans, however, clearly feel less than beholden to the concept of foregoing an impeachment investigation absent the likelihood of conviction. In the last Congress, Rep. Mark Meadows, R-N.C., and other Republicans introduced a resolution to impeach Deputy Attorney General Rod Rosenstein for allegedly failing to produce documents to Congress and conflicts of interest. While the resolution went nowhere, it is a telling reminder that Republicans have subscribed to the concept that an impeachment inquiry is justified even if the prospect of a Senate conviction is zero.Even the idea Congress must wait for the Special Counsel report or the conclusion of the various House investigations before deciding whether to commence an impeachment inquiry is ahistoric.
In February 1974, the House of Representatives — by a vote of 410 to 4 — “authorized and directed” the Committee on the Judiciary “to investigate fully and completely whether sufficient grounds exist” for the House to exercise the power of impeachment. At that time, Special Prosecutor Leon Jaworski had not completed his work nor submitted any report to Congress or the public about his findings.
In that February report, the committee staff declined to specify what would constitute grounds to impeach President Nixon. “The issues cannot be defined in detail in advance of a full investigation of the facts.”
The report offered “no fixed standard for determining whether grounds for impeachment exist” because the framers “adopted from English history a standard general and flexible enough” to address future events that they could not foresee.
Two years into the Trump presidency, it is high time that the House of Representatives launch an impeachment inquiry to determine if a “full investigation of the facts” warrants a vote to impeach President Trump.
The framers would have settled for nothing less.