OCR Text |
Show The Origins and Scope of Presidential Impeachment Matthew R. Romney Impeachment in the State Constitutions Soon it became apparent that impeachment could be applied effectively in the new and relatively weak state governments to prevent the corrupt or incompetent application of power. It also became apparent, however, that the American legislatures were willing to use impeachment to punish loyalists and seize their property. Impeachment was even used against Governor Thomas Jefferson for alleged incompetence in his role during the British invasion of Virginia. Though he was subsequently cleared, and though it was not formally called impeachment, it was identified as such by at least one observer, Edmund Randolph (Hoffer and Hull 1984, 85). The British Parliament had possessed the authority to impeach anyone in the realm for any reason, and assuming it could get by the Lords, it could ask for any punishment. Abuses by the American assemblies made it clear, however, that the enormous power which impeachment had encompassed in the British experience would have to be curtailed. Other prominent revolutionaries had direct experience with impeachment, and the topic was discussed among the elites which would form the state constitutions. John Adams played an important role in the impeachment of Peter Oliver, and subsequently included the following passage in his Thoughts on Government, which was circulated widely during April 1776 and clearly influenced the thinking of other American leaders: "For misbehaviour the grand inquest of the Colony, the House of Representatives, should impeach [officials] before the Governor and Council, where they should have time and opportunity to make their defence, but if convicted should be removed from their offices, and subjected to such other punishments as shall be thought proper" (Hoffer and Hull 1984, 65). The importance Americans ascribed to impeachment is evidenced by the fact that it was written into the first constitutional drafts of eight states: Massachusetts, Pennsylvania, North Carolina, Virginia, New York, Vermont, New Jersey and Delaware. Those drafting the state constitutions, then, were facing some important questions: Who can be impeached, and for what offenses? It turns out that answers took on different appearances in different states. Generally, states limited impeachment to state officials, though some limitations were more rigid than others. By the end of the Virginia debate for example, George Mason's draft restricting impeachment to office holders had been changed to the governor and others '"offending against the state"1 (Hoffer and Hull 1984, 70), leaving the definition of "others" open to debate. On the question of scope of offenses reachable, there was far less agreement. In Pennsylvania, impeachment was limited to '"mal-administra-tion,"1 thus relegating common and statutory crimes to the courts. New York and North Carolina added corruption as an impeachable offense. New Jersey was the most liberal with the impeachment power, allowing impeachment for '"misbe- havior."1 And Delaware tacked on the phrase, "'or other means, by which the safety of the commonwealth may be endangered."1 This disparity among different states becomes one of the key obstacles to defining the intention of the U.S. Constitution's framers. Nevertheless, there was a republican consensus, with only small exceptions, that impeachment should be limited to office holders, for acts while in office, and that the punishment would be limited to removal and disqualification (Hoffer and Hull 1984, 68-69). There was also disagreement among the drafters of the state constitutions about where the impeachment trial should be held. Many accepted the framework of trial in the upper houses, but Thomas Jefferson, having had a poor experience with legislative trial, supported trial in the Virginia Supreme Court by a conglomerate of officials from different branches of government. James Madison agreed and the methods they proposed for selecting the impeachment court grew fairly complex. At issue was the republican idea of separation of powers. What incentive did legislatures have to remove officials they had appointed? In the end, the states made varying attempts to balance trial in the upper house with the presence of judicial officials, all except Virginia, where impeachments were tried by the Supreme Court (Hoffer and Hull 1984, 70-75). Impeachment in the U.S. Constitutional Convention By the time the Constitutional Convention convened in Philadelphia in the summer of 1787, republican impeachment had begun to take on a distinct republican shape-it was limited to office holders, for offenses outside the jurisdiction of the common law, with a punishment limited to removal and disqualification. Significantly, while these were the general trends, each state applied them slightly differently. On the issues of the impeachment trial and the scope of impeachment there were subtle but significant differences. It was not surprising therefore, that when delegates met in Philadelphia, impeachment of the executive was quickly agreed upon, but also that these differences were the objects of debate. It is important to note however, that neither the issue of trial, nor the issue of scope of offenses covered were motivated by fears of factionalism. It was not feared, for example, that it would be too difficult to get impeachment through the judiciary, nor that it would be too easy to get it through the Senate. It was not a concern that defining the scope of impeachment too broadly would allow factions to exploit the process. What little concern there was about factionalism was abated by the application of the two-thirds standard to the impeachment trial, another American innovation born during the drafting of state constitutions and also stemming from the requirement of nine states to ratify treaties in the Articles of Confederation. On May 29, as part of the "Virginia Plan," Randolph included the impeachment of any national officer, assigning 70 |