Commentary Collections

Impeachment and the Convention

The Convention debates whether officials should be removable by impeachment, and if so how.

Cite as: Kat Howarth, Impeachment and the Convention, Quill Project at Pembroke College (Oxford, accessed 2018)

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The Impeachment Clause (Article II, §4 of the US Constitution) provides that ‘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.’ However, it did not start life in that form in the Constitutional Convention of 1787, and had some had their way wouldn’t have ended up in the Constitution at all.

The main questions that the Framers tackled in relation to impeachment were which offences would result in impeachment, who could impeach the executive and who would try the impeachment, and (a point of debate that may be surprising to some) whether impeachment of the executive was appropriate at all. Although some may consider it obvious now that there should be some mechanism to ensure the removal of those in high office if they committed certain offences, during the 1787 Convention the topic was nowhere near as cut and dry as that, and lengthy debate took place not only to decide who could try impeachments but whether or not they should happen at all for the executive.

This Commentary Collection is designed to plot the notable propositions and debates centred on impeachment, including an initial suggestion of ‘removal’ and late stage back and forth over who should be responsible for trying an impeachment. The legal and political background to the clause has also been explored in the context of the Framers resources and possible inspirations at the time.

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Commentaries (8)

The possibility of some method of reprimanding an executive magistrate who was considered ‘unfit’ was first discussed here, with the delegates talking of the ‘removal’ of the executive. Mr Mason of the Virginia delegation suggested a remedy on this case was necessary for two reasons: first, that those choosing the executive were fallible, and might choose someone who time would show was ‘unfit’, and second that whoever was chosen would be susceptible to corruption. However, the method suggested at this point was not that of impeachment as we know it today, which Mr Dickinson of the Delaware delegation declared here he was not a fan of, but instead removal of the president on request by a majority of the state legislatures. This method it seems would have left no room for the president to present a defence in the same way as during a trial for impeachment.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Dickinson/Bedford on Removal was debated on 02 June 1787

The convention has now turned to the suggestion that the executive should be impeachable, but here Madison questions the sensibility of allowing the executive to hold office during good behaviour on the basis that impeachments may be impractical. He suggests that a tribunal for impeachments must be ‘as certain & as adequate in the one case as in the other’. Although the motion for good behaviour was negatived, questions about how impeachments should be tried would crop up again and cause problems in later discussion.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Length of Term - McClurg/Morris for Good Behaviour was debated on 17 July 1787

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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The Virginia Plan as amended in Committee [Resolutions] - Eleventh Resolution (Working Version): Third Clause - Wilson/Morris for Appointment by Executive was debated on 18 July 1787

Here Mr Gouverneur Morris sets out his opposition to executive impeachment. He believes that allowing the executive to be impeached was ‘dangerous’ on the basis that, if impeachments are to be triggered by the Legislature, the executive would then be held in their thrall, and the legislature would be able to use the threat of impeachment to force the executive to follow their wishes. Again the notion of the executive being a ‘check’ on the legislature is referenced, showing that the separation of powers continued to be a key issue during discussions of executive impeachment. Morris’ solution at this junction was for the executive term to be a short duration so that an unfit executive could be ousted simply by voting in someone else at the next available opportunity. Morris’ defence of an unimpeachable executive at this stage may also shows links to William Blackstone’s explanation of why the King of Great Britain could not be brought to court. Blackstone suggested executive power would be checked by being able to impeach the king’s ‘evil and pernicious counsellors’ who had suggested his course of action; Morris advocates impeachment instead of ‘certain great officers of State; a minister of finance, of war, of foreign affairs &c.’ who had ‘exercise[d] their functions in subordination to the Executive’. This suggestion implies that Morris, like other in the Convention, had taken account of the wisdom of Blackstone when forming his views on many of the issues before the Convention. Additionally, Morris’ view ties in the possible conundrum faced by the Framers of having no past precedent on which to base a possible impeachment. Working from the English model, the comparison of the executive is between the King and the President, but with no way of removing the King from office or bringing him to court, there was no English policy to base their suggestions on. This could be the cause of the Framers taking such different positions at the start of discussions of any possible impeachment. Although judicial impeachment would have been familiar ground, new ice was being broken in with the inclusion of impeachment for the executive.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version) was debated on 19 July 1787

Gouverneur Morris again reiterates his opposition to impeachment during a discussion of executive term lengths, arguing that a short term was necessary in order to avoid the use of impeachments.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Length of Term was debated on 19 July 1787

This debate is the most thorough of the whole Convention on the topic of whether or not the executive should be impeachable whilst in office. Some argued that impeachment wasn’t necessary, or would cause other issues, such as Gouverneur Morris; he suggested that the practicalities of impeachment were a strong reason to reject it on the basis that it would be too difficult to decide who should try such an impeachment, and ‘render the Executive dependent on those who are to impeach’. Similarly, Mr Pinkney believed the legislature would be able to hold the threat of impeachment as a ‘rod over the executive’, whilst Mr King argued that the executive ought only to be impeachable if he held office during good behaviour. Otherwise, he suggested, he would be more effectively held to account by the electors. However, many delegates were staunch supporters of the concept of executive impeachment, and sought to defend it. Mr Davie suggested that without impeachment, electors would not be able to hold the executive to account as he would spare nothing to get himself re-elected, presumably a suggestion that bribery and corruption might be resorted to if there was no proper punishment for these actions. Franklin dryly suggests that impeachment would be better than assassination, which was until that point a recourse when leaders were ‘obnoxious’, whilst Mr Madison observes that impeachment seems the best method of defence against ‘incapacity, negligence or perfidy of the chief Magistrate’. Additionally, Mason here argues that all men should be subjected to justice and that none, not even the executive magistrate, should be above this rule. Although his declaration of ‘Shall any man be above Justice?’ could draw comparisons with the 19th Century interpretation of the rule of law popularised by A.V. Dicey (‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’), one can also look back to Blackstone to see where inspiration for this statement could have come from. Blackstone was at pains in his Commentaries to emphasise the fact that the King could not be brought before a court of law, and Mason’s declaration that no one should be above the law is suggestive of an attempt to distance the new American Constitution that they were forming from the foremost symbol of country they had had to fight for independence from. It is interesting that after this portion of the debate, Morris reverses his position, declaring that having listened to the arguments for impeachment he is persuaded that it ought to be used. He was ‘sensible of the necessity of impeachments’ on the basis that ‘This Magistrate is not the King but the prime-Minister. The people are the King.’ Once again we see an attempt to distance the executive from the concept of a king, and it seems that Morris has dropped his previous position in favour of one that has the President brought to justice as himself, rather than through his ‘councillors’, as Blackstone suggests of the King of Great Britain. This reversal from Morris, and the observation by Franklin that ‘History furnishes one example only of a first Magistrate being formally brought to public Justice’, tie back to the consideration that because the Framers were having to move away from the English model which treats the King so differently, their positions were more unsure than those on other considerations. Whilst many seemed to have fairly concrete plans on other issues that arose, the change brought about by this concept seems to have created less firm policy positions, meaning they were more susceptible to amendment.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Impeachment Clause was debated on 20 July 1787

The impeachments clause that had been under consideration during previous discussions was only applicable in cases of treason and bribery. Colonel Mason had suggested the addition of ‘maladministration’ as a third head of impeachment, arguing that bribery and treason did not cover all dangerous offences which he thought an executive should be impeachable for. However, after an observation by Madison that such a term was too vague, and would ‘be equivalent to a tenure during pleasure of the Senate’, Mason changed his terminology to ‘other high crimes and misdemeanours’. This wording brings the impeachment clause into the format that we see it in today. However, no discussion took place to illustrate the meaning of ‘high crimes and misdemeanours’. This would suggest that such a phrase was simply already understood as having certain connotations by those at the Convention, and therefore necessitating no debate about its particulars. Although definition of this phrase can be a topic of debate, arguably the picture becomes clearer if we take into account that (it is generally agreed) many of the Framers had read and taken inspiration from Blackstone’s Commentaries on the Laws of England. In these volumes, Blackstone describes the offence of ‘crimes and misdemesnors [sic]’. In comparison to private wrongs, which were seen as ‘civil injuries’, this category refers to public wrongs, ‘a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.’ This suggests that the impeachments clause had been widened to cover infractions generally against the public rights and duties that a President would become subject to when he took office. The inclusion of the word ‘high’, rather than indicating a specific type of offence or distinguishing from the simple 'crimes and misdemeanours' category, simply looks to the gravity of the charge. Edward Christian, whose annotated 12th edition of Blackstone’s commentaries was published in 1793, noted that 'When the words high crimes and misdemeanours are used in prosecutions by impeachment, the words high crimes have no definite signification, but are used merely to give greater solemnity to the charge'. If the Framers were following Blackstone, this offence would already be seen as more serious than the comparable private wrong, and though this edition was printed six years after the Convention, it is likely their usage of the phrase inclusive of 'high' would similarly look to the importance of the office and therefore the corresponding solemnity of any infraction. Therefore, this inclusion, although there was little to no debate on the subject past the rejection of ‘maladministration’, suggests a much wider basis for impeachment than had previously been considered by the Framers. For example, it is plausible to suggest that contravention of the Presidential oath in any form could be considered a public wrong or dereliction of a public duty, and therefore be impeachable under the auspices of ‘high crimes and misdemeanors’. A similar example of someone under professional oath committing such an offence which is given in Blackstone is that of a physician reneging on his duties and committing mala praxis (malpractice) because it 'breaks the trust which the party had placed in his physician'.

Associated event:

Second Report of the Grand Committee on Postponed Questions: Article X - Second Amendment to Section 2: Mason Amends His Proposal was proposed on 08 September 1787

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.

Associated event:

Second Report of the Grand Committee on Postponed Questions: Article X - Second Amendment to Section 2 was debated on 08 September 1787