Hamilton on Impeachment and ‘High Crimes and Misdemeanors’

Hamilton on Impeachment and ‘High Crimes and Misdemeanors’ January 22, 2020

Alan Dershowitz’ claim that a president can only be impeached if he actually violates the law is one that there is such a consensus against, from across the political spectrum, that you can literally count on one hand those who accept it. One reason is that Alexander Hamilton, in Federalist Paper 65, makes it very clear that it does not require such a thing.

Credit to Nick Youngson

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. 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. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

So abuse of power is clearly within the grounds for impeachment. There is much more evidence for this conclusion, most of which is spelled out in an op-ed column by Harvard Law professor Lawrence Tribe. He points out that there were no federal laws at the time, so “any such understanding would have been inconceivable.” And he cites Edmund Randolph during the Constitutional Convention urging the inclusion of the impeachment power because the “Executive will have great opportunitys of abusing his power.” There’s that phrase again — abuse of power. Not an actual crime but the use of one’s office for corrupt purposes.

He continues:

The logic of impeachment as applied to the presidency is that the president has unique authority conferred by Article II. If he abuses that authority for personal advantage, financial or political, he injures the country as a whole. That is precisely why the framers rejected the idea of relying solely on an election to remove an abusive president from office. Indeed, waiting for the next election is an option that is obviously insufficient when the abuse of power is directed at cheating in that very election.

Justice Joseph Story wrote in 1833 that there are “many” impeachable offenses, none of which is “alluded to in our statute book,” because the abuses of power that constitute “political offences” are “of so various and complex a character, so utterly incapable of being defined, or classified, that the task” of enumerating them all through “positive legislation would be impracticable.”

I don’t see how one could seriously argue against that. That’s why the consensus is so strong, whether you look at liberal, conservative or libertarian legal scholars. But there is a punchline to all this, found in Hamilton’s paper, which shows that his powers of explanation far exceeded his powers of prediction. Discussing why the impeachment power is vested in the Senate rather than the House or the Supreme Court, he makes this prediction:

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

Senator McConnell to the white courtesy phone; a Mr. Hamilton would like to have a word with you.

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