The adorable, hilarious and maybe tragic way the Federalist papers addressed impeachment

Special Counsel Robert Mueller
REUTERS/Jim Bourg
Special Counsel Robert Mueller delivering a statement on his investigation into Russian interference in the 2016 U.S. presidential election at the Justice Department on Wednesday.

In the aftermath of Robert Mueller’s first and (perhaps) last public remarks on the case of Donald Trump, I want to take a second, perhaps awkward and certainly nerdy stab at a reaction.

Mueller described Justice Department policy, by which he felt bound. He didn’t say whether he agreed with these policies. But acting as an official of the Justice Department, he said he was bound by them. Here’s the key section:

A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation.…

First, the opinion explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.

So that was Justice Department policy. Those were the principles under which we operated. And from them, we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the president.

The third of those paragraphs refers to the Constitution, which “requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”

That, clearly alludes to the impeachment process. And Mueller is right that the Constitution outlines that process. The House can impeach a president, with a majority vote. The Senate then holds a trial on the charges forwarded from the House, and it requires a two-thirds vote to convict, which leads to the removal from office of the official convicted.

Now the historical part.

When the Constitution was written, there were no national parties and no two-party system. The framers had no ability to analyze whether and how the impeachment/trial/two-thirds vote for conviction might work in a two-party system, nor could they foresee the level of partisanship and party loyalty that now obtains. To some degree, that level of partisanship is a fairly recent development.

To date, we have exactly one Republican member of Congress, Rep. Justin Amash of Michigan, who has said that he would vote to impeach Trump. And he’s not in the Senate, which currently has a partisan majority of 53 Republicans, none of whom have expressed any interest in voting to convict and remove Trump. You can say, if you like, that that’s because they haven’t sat through the trial yet, fine. But it would take at least twenty — twenty! — of those 53, combined with 100 percent of the 47 Senate Democrats to get to the two-thirds — 67 votes — need to convict and remove Donald Trump.

At the moment, that is beyond imaginable.

Just for yuks, I decided to re-read one of the Federalist Papers that deal with the matter of impeachment. It was adorable. Also hilarious. Or should I say tragic? You decide.

In Federalist No. 65, Alexander Hamilton, writing under the pro-ratification group’s pseudonym Publius, decided to discuss the question of why, in their wisdom, the framers had arranged for a president, impeached by the House, to be tried by the Senate. His explanation:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

That’s adorable.

I especially love the idea, in 2019, that the Senate would be “sufficiently independent” to render a correct verdict in such cases. What does Hamilton mean by “sufficiently independent?”

When we look at the current situation, we start from the assumption that most or all of the Republicans in the Senate would vote against convicting the current incumbent (who happens to also be the leader of their party) of any impeachable offenses (and that most or all Democrats would vote for conviction and removal). Where’s the independence in that?

Remember, Hamilton/Publius lived in an America with no national political parties. His assumption was that the senators would actually be voting based on the merits of the case.

Another part of the logic, to which Hamilton refers explicitly, is that Senators — dignified and independent — would be able to decide such a matter on its merits, not on political considerations, because Senators (in the original Constitution and until this feature was amended in 1917 by the ratification of the 17th amendment calling for the direct popular election of senators), were chosen by the state Legislatures without a popular vote. They didn’t have to pander to the masses.

As undemocratic as that may strike us today, Hamilton argued that it was a good thing to have Senators judge matters of impeachment because the method of their selection sheltered them from political pressure.

But even as recently as the Nixon impeachment crisis, there was still enough willingness of some members of Congress to set aside strict party loyalty in such matters that a delegation of Republicans, led by Sen. Barry Goldwater, came to the Oval Office and told Nixon that Senate support for him was crumbling, even among Republicans.

Nixon announced the next day that he would resign.

As of now, just one Republican in the House (Amash) has indicated any willingness at all to support investigating, impeaching or removing the current incumbent who, coincidentally, is a member of their party. It would take 20 of the 53 Senate Republicans to vote for conviction to assemble the necessary two-thirds majority. At the moment, I count zero.

If you want to make the case that Democrats who favor impeachment are also motivated by partisanship, go ahead. You’re right. It makes the same case, in terms of where we are in the power of partisanship to a level the authors of the Constitution never imagined, in an age before even the existence of national parties.

One last quote from Federalist No. 65, quite relevant to the immediate post-Mueller moment. Mueller was a special prosecutor, working under special appointment to the Justice Department for the purpose of investigating possible crimes in connection with the Russian invasion of the 2016 election. (Crimes, not “treason, bribery or other high crimes and misdemeanors,” which is the rather mysterious language in the Constitution describing impeachable conduct.) In the same essay, Hamilton/Publius asserts clearly that impeachable offenses are not exactly the same as prosecutable criminal offenses. Speaking of the impeachment power, Publius wrote:

The subjects 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.

Read that quote again. It strikes me as quite a different category of offense than those for which you can be prosecuted and put in prison.

The full Federalist No. 65, in which Hamilton makes these arguments is viewable here.

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Comments (16)

  1. Submitted by Misty Martin on 05/31/2019 - 01:22 pm.

    Eric:

    I imagine that Alexander Hamilton would be rolling in his grave today if he could see how far America has fallen. We now have a Commander-in-Chief who had to have his fragile ego protected by hiding the USS JOHN S. McCAIN warship and his staff even going so far as not allowing the crew of said ship near Trump, as the crew bore the ship’s name on their uniforms, during the President’s recent visit to Japan where the warship was stationed. Even if President Trump had nothing to do with this endeavor to shield his “fragile ego”, he still spoke harsh words after the event about never being a fan of the late, GREAT Senator John S. McCain, who was a decorated military officer/P.O.W. and loyal Patriot as most everybody knows.

    And yes, I’m sure there were a lot of reasons found in the Mueller Report (that I have not read in its entirety) to impeach the current occupant of the Oval Office, but it was not Mueller’s place to do so, obviously. We can only hope and pray that some day, SOME DAY . . . justice will prevail, and then America will truly be made GREAT again. Whether that comes by impeachment of this President or by another person sitting in his seat in the Oval Office after the election of 2020, only God knows. But we need to do our part in the next presidential election and GET OUT THERE AND MAKE OUR VOTE COUNT!!!!!!!!!! It’s more crucial than ever before.

  2. Submitted by Howard Miller on 05/31/2019 - 03:49 pm.

    Rule of law ought to matter to both parties.

    Trump’s obstruction of justice has been in plain view.

    His administration is filled with corruption and self-dealing. His erratic belligerent foreign policy may trigger war. He is a mean bigoted cuss.
    He’s violating human rights standards in his mistreatment of migrants.

    How can that be ok for any president to do?

  3. Submitted by Donald Larsson on 06/01/2019 - 01:11 am.

    Add to that Hamilton’s comments (in Federalist 68) on why the Electoral College would be a good thing (Eric has written about this previously):
    “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. . . . It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”

    Like Eric says, adorable!

  4. Submitted by Steve Rose on 06/01/2019 - 11:05 am.

    30 states candidate Trump won. How adorable is that?

    Except from your quote: “may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it”

    • Submitted by Frank Phelan on 06/03/2019 - 06:00 am.

      Speaking of adorable and hilarious, here comes the old acres vote argument.

    • Submitted by RB Holbrook on 06/03/2019 - 10:03 am.

      His victory in the Electoral College simply means that he was able to rack up votes in those arbitrary divisions of land known as “states.” It is irrelevant to the larger issue of his misconduct in office.

      Going forward, there is no reason why his electoral victory matters. Obviously, President Clinton won an electoral victory – one that was more impressive than Trump’s – yet that did not give the Republicans pause in pursuing their impeachment frolic. Obvious as well is the fact that even a strong measure of popular support does not mean that an official is somehow immunized against investigations into his or her wrongdoing.

      By now, it should be painfully obvious that the Founders, for all their wisdom, could not have anticipated the political environment of the United States in the 21st century. “Esteem and confidence” do not rule out “low intrigue” elevating a person across much of the country’s land mass, and “the little arts of popularity” form much of the basis for our contemporary culture. Ridiculous as the idea may have seemed at one time, today, you can fool a lot of the people taking up a lot of space any old time you want.

      • Submitted by Steve Rose on 06/05/2019 - 08:10 am.

        Seriously, “those arbitrary divisions of land known as “states.””?

        The question of how power should be divided between the federal government and the states is really what American politics has been all about since the birth of our nation. The idea of “states” is so important that it is included in the name of our nation. This article and discussion is about writings of the founding fathers in the Federalist Papers. Our candidate didn’t win, so let’s throw the founding fathers and their federal form of government under the bus.

        The lesson of the 2016 election: To lose to a flawed candidate, you only need to run a candidate more deeply flawed.

        • Submitted by RB Holbrook on 06/05/2019 - 09:19 am.

          The question of how power should be divided between the federal government and the states is really what American politics has been all about since the birth of our nation. ”

          And it was largely settled by the Civil War, and the constitutional amendments adopted in its wake. States are, in the final analysis, divisions of territory that may once have had some meaning, but the differences between them have been eroded in important ways. Saying that the idea of the state is all important because “it is included in the name of our nation” is ignoring so much political, historical, and cultural reality that I don’t know where to begin (just so you have something to fixate on in your reply: do you place equal importance on the use of the word “United?”).

          Historically, states started as ratification by the independent nation of colonial land grants. Once upon a time, states had distinct identities: the louche Anglican cavaliers of Virginia had little in common with the austere Puritans of New England. Later, the structure of those grants was adopted as new territory was opened up. Eventually, the divisions became less important, and are now historical relics.

          • Submitted by Steve Rose on 06/05/2019 - 10:17 am.

            From the Articles of Confederation, “A loose confederation of states, not a strong union with extensive central powers.”

            So no, I will leave the “united” fixation to you and your position of arbitrary divisions of land argument.

            The Civil War didn’t settle the question of power. The Civil War settled a basic human rights issue that the Founding Fathers failed to address.

            • Submitted by RB Holbrook on 06/05/2019 - 10:49 am.

              “The Civil War settled a basic human rights issue that the Founding Fathers failed to address.”

              Where to begin? The Founding Fathers deliberately avoided the basic human rights issue, for both economic and political purposes. I suppose that could be regarded as a “failure to address” the issue, but it’s important to remember the “failure” was a deliberate decision, not just an oversight (“D’oh! We failed to address slavery! Oh, well, it can be fixed by a long and bloody war. No worries.”). Besides, there are plenty of people who will tell you that the Civil War was not about slavery.

              I recommend you read the 14th Amendment, and see if you can put it in its historical context. That Amendment, by itself, represented a major shift in the political dynamic of the United States.

              • Submitted by Steve Rose on 06/05/2019 - 12:09 pm.

                I would suggest beginning with having your scales of justice calibrated.

                About 620,000 Americans were killed in the Civil War, a number approximately equal to all other U.S. wars combined. Nearly 100 years of legal slavery scarred our history, and nearly ended the union. I call it a failure of the Founding Fathers; you see if differently. The fact that they were aware of it makes it no less a failure.

  5. Submitted by Allan Campbell on 06/01/2019 - 11:46 pm.

    Eric:

    You are totally correct that prosecutable criminal offenses are different from impeachable offenses. For a sitting president only the latter are relevant and Hamilton/Publius recognized them in Federalist 65 to be POLITICAL (caps are Hamilton’s). Hamilton further recognized the potential for parties to develop and turn impeachment into a partisan affair, citing the “danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.”

    Even if senators were still appointed by state legislatures, I am doubtful that they would be able to conduct an impeachment trial in the independent manner that Hamilton was counting on now that extreme partisanship has penetrated our state houses. Regardless, impeachment is now a POLITICAL process and the vagueness of the term “high crimes and misdemeanors” gives the House wide latitude in
    using its political instincts to decide whether to impeach, while the two-thirds requirement for conviction means that the mood of the country must be strongly in favor of conviction before an elected Senate will be willing to convict.

    With 90% plus of Republican voters and 100% of Republican Senators still backing the president despite his clear violation of public trust, we are clearly not there yet. So, unless a smoking gun emerges, as it did with the Watergate tapes, the only alternative under the Constitution is to vote the president out of office at the next election.

  6. Submitted by Frank Phelan on 06/03/2019 - 06:05 am.

    The Founders are not the only source of ideas both hilarious and adorable. Let’s what naivete Justice Kennedy spewed in the Citizens United decision:

    “[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …”

    “The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. …”

    “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

    Political favors? In return for thousands of dollars of spending? How silly!

  7. Submitted by Edward Blaise on 06/03/2019 - 09:33 am.

    Alexander Hamilton, meet Lindsey Graham…

    The Federalist Society, and their constitutional constructionalist brothers, take the historical things they like, chisel them into stone and search for a storage facility akin to the Lost Arc of the Covenant.

    The stuff they don’t like?

    Given all the care and consideration as a contract for a 90 day free membership at Snap Fitness.

    They cheerfully gave us Brett Kavanaugh with their divine guidance; but, the voices in their heads go mute when doing the right thing on Trump.

  8. Submitted by Bruce Marshall on 06/03/2019 - 01:20 pm.

    I love this column! It puts in context the mindless puffery about the ‘wisdom of the Founders’ and Originalism as a ‘doctrine’ for constitutional interpretation. And with such grace and humor!

    A words doesn’t wear it meaning on its face, doesn’t come bearing meaning like an aura. The reader, the auditor has to guess it.

    Sometimes that’s impossible. “If it’s 5:00 pm on earth, what time is it on the moon?” There are inconsistent presuppositions in the two clauses. The sentence is an Unidentified Linguistic Object.

    Hamilton shows us that the the Senate as he imagined it in 1787 is radically different from the Senate in 2019. The word “Senate” goes on, but the reality has changed.

    How then should Constitutional language about impeachment be understand (and applied) in 2019?

    It comes down to judgment.

  9. Submitted by Paul Udstrand on 06/04/2019 - 12:39 pm.

    The thing is this in not a thought experiment, it’s not a hypothetical, and I simply cannot support Mueller’s conclusion because it pretend that this is an abstract discussion. Sure, Mueller decided HE couldn’t charge Trump with a crime, but have decided whether or not anyone else would be charged given the same evidence. It’s the difference between saying president didn’t commit a crime, or when the president does it, it’s not a crime, or it was a crime but POTUS is beyond normal prosecution.

    I understand Mueller’s concern accusing someone of a crime when they can’t be charged, but since you’re not actually arresting or charging anyone it’s a fair as it needs to be. Under Mueller’s logic there’s never any reason to investigate a president. Barr actually has a point here, if Mueller didn’t think he had any business investigating the president, why did he take the job? What’s the point of investigating if can arrive at any conclusions.

    Look, given Mueller’s logic, how can he conclude that there was NO collusion? If he HAD concluded that there WAS collusion, according to his own logic, he couldn’t conclude that because it was be an unfair indictment without judicial appeal.

    As for impeachment and what-not, it was just a matter of time until the Republican Party gave us a president like Trump, This is why needed a liberal Party instead of a centrist party of accommodation. This trend was obvious after Nixon resigned but Democrats decided they could work with Fascists as long as they didn’t call them Fascists.

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