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Cite as: Kat Howarth, ‘Late stage concerns about the impeachment process’ in Kat Howarth, Impeachment and the Convention, Quill Project at Pembroke College (Oxford, 2016), item 99.
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Although the concept of impeachment and the heads the executive was to be impeachable under, were decided, there was still debate over who could impeach and who would be able to try the impeachment. Previous discussions had led to the Committee of Detail proposing that impeachment would be done by the House of Representatives, but that the trial for impeachment would take place in the Senate.
However, Madison and Pinkney both raised concerns about this mode of impeachment. Madison was particularly concerned that control by both houses over impeachment for ‘any act which might be called a misdemesnor [sic]’ would make the executive dependant on the legislature and would therefore go against the strong separation of powers that the Framer were trying to construct by placing the executive under the will of the legislature. Pinkney expresses a similar sentiment.
The other suggestion made again at this stage was to let the Supreme Court have control over the trial of impeachments, which had been discussed and rejected in previous debates. Mr Sherman re-stated the concern that judges who were to be appointed by the executive should not be the ones to try his impeachment, as the President could abuse such a system if he wished. Gouverneur Morris added the ground that he thought the Supreme Court had too few members to properly try such a matter, and also that he thought them susceptible to corruption – this was left open as to whether by the executive or legislature, or some outside faction.
This debate shows that even at this late stage, only nine days before the end of the Convention, the matter of the impeachment of the executive was such a complicated topic that it was still not settled, months after the introduction of ‘impeachments of National officers’ in the Virginia Plan on May 29. Much of the concern at this stage was focused on the impartiality of the impeachment process and which would be the best way of ensuring that a fair trial was given and no bribery or corruption could be exercised by either side, which ties back to the strong separation of powers theme which pervades the discussions of the Convention as a whole.
Approved for publication