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Can the judiciary try an impeachment?

by KatHowarth

Cite as: Kat Howarth, ‘Can the judiciary try an impeachment?’ in Kat Howarth, Impeachment and the Convention, Quill Project at Pembroke College (Oxford, 2016), item 94.

Content

The possibility of impeachment for the executive had a wider impact than it would first appear. Here the appointment of judges was in issue; Mr Wilson of the Pennsylvania delegation had proposed that they be chosen by the executive, and both Mr Mason and Mr Gouverneur Morris questioned whether this would have an impact on who could try executive impeachments.

Concern was that if the executive appointed the judges, ‘an impartial trial would be frustrated’ as the executive could, for example, appoint only those who would support him and therefore thwart any proposed impeachment. This is another example of the emphasis of the Framers on the separation of powers, and of ensuring that one branch wouldn’t be able to exercise influence over another to try and increase its power. An alternative of course was to allow the executive to appoint judges but then to have a different mode of trial for executive impeachments.

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