Impeachment: What Did the Framers Say?
Explore what the Framers of the Constitution thought about impeachment with the Constitutional Sources Project (ConSource).
December 6, 2019
Explore what the Framers of the Constitution thought about impeachment with the Constitutional Sources Project (ConSource).
Understanding Impeachment from the Framers' Perspective
The constitutional method for impeaching and removing the President and other offices is clear: Article I, Section 2, Clause 5 says, “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeaching.” Further, Section 3, Clauses 6 and 7 clarify that “The Senate shall have the sole Power to try all Impeachments,” that the Chief Justice will preside over the trial of the President, and the extent of possible punishments in impeachment proceedings.
The standards for removal, however, are significantly more vague. Article II, Section 4 reads simply: “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.” Given how infrequently it has been used to impeach and remove officials, this clause’s exact meaning—particularly the definition of “high Crimes and Misdemeanors”—has not been settled.
How did the framers settle on the process and standards for impeachment? Understanding the origins of the legislative branch’s impeachment power, while it won’t dispose of the debate entirely, will help us have better informed discussions when disagreements crop up over official behavior.
On June 2, 1787, merely four days after the introduction of the Virginia Plan, the Constitutional Convention took up removal of the chief executive. Undoubtedly speaking for a majority, Madison’s fellow Virginian George Mason avowed early on in the Convention that “Some method of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.”
Delegates grappled with mode by which the executive could be displaced. Several methods envisioned a direct role for state governments and officials. John Dickinson of Delaware, who spoke on June 2, moved “that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of individual States,” a proposal that was defeated, 12-1. Also conferring this power to state actors, William Patterson’s New Jersey Plan provided for an executive “removeable by Congress. on application by a majority of the Executives of the several States.”
Hugh Williamson of North Carolina was the delegate responsible for officially implanting impeachment in the document; on June 2, he proposed that the executive “be removable on impeachment & conviction of mal-practice or neglect of duty.”
Impeachment was hardly a new doctrine in the United States. It had been imported from Britain, where it was an ancient though weak and seldomly used practice. It could not legally dislodge the king or queen, and had mostly been enforced against lesser officials and nobles. Despite the impeachment power’s infrequent historical usage, a majority of states present at the Convention had already authorized the impeachment and removal of the executive (or executives) in their own founding compacts. Williamson’s motion passed with little discussion, James Madison recorded.
Yet the question of impeachment resurfaced on July 20, occasioning a more spirited debate. Charles Pinckney of South Carolina professed he “did not see the necessity of impeachments” at all, even though his home state as of 1778 had provided for the impeachment of “all officers of the State.” Massachusetts’ Rufus King also opposed impeachment, holding it to be unnecessary. If the President was to serve for a limited period of time, elections would act as de facto trials: “he would periodically be tried for his behavior by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it.”
These delegates were in the minority, however; Elbridge Gerry of Massachusetts responded and “urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them.”
The specifics of the impeachment process were still unresolved. Charles Pinckney disdained the notion of impeachment by the legislative branch. This, he argued, would enable Congress to “hold [impeachment] as a rod over the Executive and by that means effectually destroy his independence.” Gouverneur Morris of New York concurred, arguing that impeachment by the Congress would “render the Executive dependent on those who are to impeach.”
These scant objections notwithstanding, the Committee of Detail on August 6 resolved that “The House of Representatives shall have the sole power of impeachment.” This common practice, of initiating impeachment proceedings in the lower house, was a holdover from English impeachment conventions. It also introduced what would become Article 1, Section 3, Clause 7, proclaiming that impeachment judgements should not go beyond “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States.”
But the proper arena for a trial was disputed; the Committee of Detail’s report provided for a trial in the Supreme Court. Gouverneur Morris objected to this, insisting that that “Tribunal” was “an improper one.” A week later, on September 4, the Committee of Eleven (the third such committee of that name) moved to insert “The Senate of the U— S— shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.”
On September 8, the Convention took up the suggested alteration. James Madison expressed wariness over having the Senate try the President; with both houses involved in the removal process, he reasoned, the executive could become “improperly dependent. He would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.” Charles Pinckney believed that vesting in Congress the ability to remove the President would engender collusion between the two branches, and encourage removals borne of political resentment; Williamson, conversely, “thought there was more danger of too much lenity than of too much rigor towards the President,” given the many governance functions which required cooperation between the two. Madison’s motion to remove the Senate from the trial process failed by a 9-to-2 vote.
The vesting of the impeachment power in the legislative branch was not the only controversy; also demanding resolution was the issue of timing. It was not clear to all delegates that impeaching the executive during his term was proper. On July 20, Gouverneur Morris (who would later change his mind and back a strong impeachment power) and Charles Pinckney had moved to strike out the impeachment clause, the latter arguing that the President at least “(ought not to) be impeachable whilst in office.”
There was precedent to support this change: the constitutions of Delaware and Virginia both specified impeachment of their chief executives would take place only after their terms had ended. Both of those constitutions, however, had imposed three-year limits on their respective “chief magistrates,” after which time they would have to wait several years before serving again.
The President of the United States, on the other hand, would be eligible for reelection in perpetuity. Reserving impeachment for after the President’s term, then, could conceivably enable one to serve for the remainder of his life without being brought to justice. As William R. Davie pointed out, “If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected.” Morris and Pinckney’s attempts to excise the impeachment clause went down to defeat, and impeachment during the President’s term remained in the document.
Once the procedure of impeachment had been determined, the substantive problem of defining an impeachable offense remained. Delegates feared a corrupt executive, especially one under the influence of a foreign nation, betraying the United States. Madison speculated that a chief executive could “betray his trust to foreign powers,” while the newly pro-impeachment Gouverneur Morris foretold of “the danger of seeing the first Magistrate in foreign pay.”
Settling on an acceptable means of punishing such transgressions proved troublesome. The diversity of standards in early state constitutions presaged difficulty in Philadelphia. The requirements in these documents included “misconduct and maladministration,” “mal and corrupt conduct,” “mar-administration,” “maladministration, corruption, or other means,” “mar-administration, corruption, or other means,” “violating any part of this Constitution, mal-administration, or corruption” and “mal and corrupt conduct in their respective offices.” Intriguingly, the standards eventually established in the Convention, “Treason, Bribery, or other high Crimes and Misdemeanors,” were not commonplace in these early constitutions.
Where did the Standards for Impeachment Clause come from, then? Hugh Williamson’s initial phrasing called for impeachment as a result of “mal-practice or neglect of duty.” This was not adequately specific, for the Committee of Detail in early August changed this to “treason, bribery, or corruption.” Delegates protested this phrasing; George Mason noted, “Treason as defined in the Constitution will not reach many great and dangerous offences…Attempts to subvert the Constitution may not be Treason as above defined.” He moved to restore “maladministration” to the text. 
James Madison objected to such a “vague” term as “maladministration,” which “will be equivalent to a tenure during pleasure of the Senate.” Mason replaced it with the now-familiar phrase, “other high crimes or misdemeanors,” a proposal that passed by an eight-to-three vote. Though James Madison worried that the President could be impeached “for any act which might be called a misdemeanor,” this plainly imprecise standard otherwise went essentially unaddressed for the remainder of the Convention, having evidently satisfied its members.
The Convention record provides in effect no further guidance on the question of impeachment. In The Federalist No. 65, Alexander Hamilton described impeachable acts as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They…may…be…political, as they relate chiefly to injuries done immediately to the society itself.” He called the process, simply, “a method of NATIONAL INQUEST into the conduct of public men.”
The impeachment of the executive did not number among the most debated issues at ratifying conventions–there were simply larger structural and political questions. What’s more, impeachment was a well-recognized procedure, given its long history and ubiquity in early state constitutions. Resultantly, the Framers did little to elucidate what constituted an impeachable offense beyond provable treason or bribery.
The history of impeachment since ratification, moreover, provides little further guidance on the criteria for impeachment and removal. The most famous proceedings—against Justice Samuel Chase, President Andrew Johnson and President Bill Clinton—failed to remove those officials despite heated debate. President Richard Nixon was practically assured to be the first chief executive displaced by Congress, but resigned before that could happen.
Over 230 years after the ratification of the Constitution, we can understand how the impeachment clauses came into being. Yet a bare historical record fails to adequately clarify the nebulous “high Crimes and Misdemeanors” standard, making the implementation of these provisions a risky political and legal endeavor.
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