In 1788, three founding fathers made the case for the US constitution in a series of essays
called "The Federalist Papers". And if you want to understand why impeachment is broken today, it’s
worth starting there. With what they thought it would look like if it worked.
In Federalist 65, Alexander Hamilton makes the case for the way the Framers
designed the impeachment power. The House brings impeachment, but it's the Senate that decides
whether to convict and remove. Not the Supreme Court, or some other independent tribunal.
A bunch of politicians. Why? Why give them that power? Here’s the argument Hamilton makes:
Impeachment, he says, poses a special problem. It’s meant for offenses that are “POLITICAL” --
he writes "political" in all caps, for emphasis -- “as they relate chiefly to injuries done immediately
to the society itself.” Stop for a moment on what Hamilton means there.
Impeachment isn’t just for crimes. Perfectly legal acts
can injure a society. James Madison said a president could be impeached for “the wanton removal
of meritorious officers” — that is to say, the President can be impeached for firing good people
for no reason. Not a crime, but it is impeachable.
You can see this in the first impeachment in American history.
It was a Federal Judge, John Pickering, in 1803. Pickering was an alcoholic and a bully, and
historians think he was probably suffering from early-stage dementia. Among the charges brought against
him were “loose morals and intemperate habits.” Is that really… a crime? No, it's not a crime.
But he was impeached, convicted by the Senate, and removed from office, anyway.
It was an injury to the society he was serving
The way he acted on the bench to the House and the Senate was not acceptable.
In some ways, it would be easier if impeachment were just for crimes. And that was considered.
Crimes have definitions. At least in theory they have definitions.
Political offenses are harder to define and the problem with political offenses, as Hamilton said, is
They get politicized. One man’s political offense is another man’s bold act to defend his party and country.
That’s the problem, Hamilton said.
Political offenses “agitate the passions of the whole community” they
"divide it into parties." Once that happens, the danger is that impeachment will
be decided “more by the comparative strength of parties, than by the real demonstrations
of innocence or guilt.” And if that happened, it would lose credibility.
Everything about impeachment rests on the independence and authority and legitimacy
of the body charged with the role. You needed a body in touch with the people, but above
the petty considerations of parties, and factions, and fad. You needed a body the public could trust.
trust. Hamilton admitted there was no perfect answer. But the Senate, with its six-year
terms and staggered elections, the Senate came closest. Hamilton argued that no “other
body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed
and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES
OF THE PEOPLE.” He was wrong.
“This week the president has admitted to asking the president of Ukraine to take actions
which would benefit him politically …”
President Donald Trump faces possible impeachment after repeatedly asking the president of Ukraine
to investigate Joe Biden. He did all this a week after Trump froze military aid to Ukraine. When Ukrainian
President Volodymyr Zelensky brought up the aid,
Trump responded in a call record his own White House released:
“I would like you to do us a favor though”
and then he turned the conversation back to investigating Joe Biden. All of this,
again, confirmed in a call record released by Trump’s own White House.
“This is about abuse of power by an overreaching executive. Something the founding fathers feared."
Using the power of the Presidency to pressure a foreign government to investigate your domestic
political rivals. I would say that’s somewhat worse than the wanton of removal of meritorious officers.
But even if that goes to full impeachment, the President will be tried in the Senate.
And he would not be tried in the Senate as Hamilton imagined it:
the impartial Senate Hamilton hoped we'd have.
Senate Majority Leader Mitch McConnell already said, “If this is the ‘launching point’ for House Democrats’
impeachment process, they’ve already overplayed their hand."
“From my point of view, to impeach any president over a phone call like this would be insane.”
Alexander Hamilton wrote in defense of a political system he thought
would resist organized political parties. The modern Senate, like the House, is controlled
by political parties. And it is a political party Donald Trump leads. We've gone from having
impeachment as a political remedy for political offenses to a partisan remedy for political offenses.
So let’s be honest. It is very, very unlikely, no matter what Trump has done, that he will
be removed from office by the Senate. He is being tried not before the unawed, uninfluenced
body Hamilton imagined, but by his co-partisans, whose fortunes are tied together with his.
They will protect him at all costs because protecting him is protecting them.
So rather than just looking at what impeachment can't do, I want to look at what it can do.
Because even a broken impeachment process isn’t useless. Impeachment can act as a sanction to Trump.
It can unearth information voters will need
when deciding whether to reelect the President, and it will provide a warning to foreign countries that
would seek influence over our politics.
I'm Liliana Mason. I'm a professor of government and politics at the University of Maryland.
Lilliana Mason studies partisan polarization and how it’s warping the American political system.
The most of what I do is actually looking at the ways
that the public understands and interprets what's happening.
And in an interview she made this great point to me:
Voters are so overwhelmed with information all the time that it's hard to
sort of have a focusing event for them where they get to really pay attention to what's
happening and learn some new things. And that's one thing that these hearings would do.
We have to think of it as more than just removal.
Impeachment is a form of public disgrace. To be one of only four Presidents
in American history, even if you are not convicted by the Senate, is to know an asterisk will
be forever attached to your presidency. It will make just about every single person now in
the country seriously consider whether or not you did something wrong.
That’s not as strong a punishment as removal from office, but it might lead to removal from office.
In impeachment, yes, it is the House’s role is to bring the case and it is the Senate's role to judge the accused.
In an era of of partisanship like we have now, it's very very difficult for it to work properly.
The problem facing the country right now is that Senate leadership would almost certainly
not convict the accused, no matter what the accused did.
But the Senate is not the only possible judge of President Donald Trump.
Public opinion is ultimately, I think, the jury that Democrats in the House are playing to.
Look, in the previous two modern impeachments,
you could see the effects on public opinion.
Well, for Nixon, as the public learned more about what had happened,
approval of both the impeachment process and removal increased.
For Clinton, his approval went up. As citizens learned more about the details of Clinton's crime,
I think the approval went up because they sort of found that there wasn't a whole lot that he had done.
It was gross, but it didn't, maybe, seem like the Constitution required that he be removed.
But both of those impeachments began in the president’s second term.
They weren't going to face the voters again.
The difference, this time, is the impeachment process began before Trump has won reelection.
And, make no mistake, Trump’s offense here was all about the 2020 election.
It is about what is proper for the President to do when running for reelection. It is about whether he can
use his office, the most powerful office we gift upon someone, that we entrust him with,
to enlist foreign governments as allies in shaping American elections
This one- THIS one, was about us. What we would see, what we would know.
What we would be made to believe. So maybe we, the voters, are actually the right jury here.
Trump wanted to run for reelection atop a booming economy: "Make America great again!"
Now he is going to run as a candidate arguing that when he said, "I need you to do me a favor, though"
of the Ukrainian President, it didn't quite rise to the level of quid pro quo.
I'm not a political consultant, but, “I’m not quite a crook” isn’t a great bumper sticker.
In his farewell address, President George Washington spoke against “the common and
continual mischiefs of the spirit of party.” In particular, he warned that partisan infighting, it
“opens the door to foreign influence and corruption.” In 2016, Russia reached deep into
the US presidential election to help elect Donald Trump and their investment paid off in spades.
Trump has defended and praised Putin, he's undermined NATO, he's made American politics
more fractious and polarized and chaotic than ever.
But it paid off for Trump. He’s President, and the Mueller report,
it carried no direct consequence for him. That’s the context in which he asked Ukraine
to help him in 2020. After all, it worked the first time. Partisanship, opening the
country to this kind of foreign influence, and then protecting the foreigners who influenced it after they do,
that is exactly what Washington and Hamilton feared the system they designed couldn’t handle.
The question for a foreign country,
facing an opportunity or potentially a presidential request to intervene in America’s election,
is what they may gain and what they may lose.
For Ukraine, the possible gains were clear: military aid they desperately needed
and anything else that might flow from nurturing Trump’s goodwill.
But the spotlight of impeachment makes the costs clearer, too.
A foreign country asked to intervene in an American election may see its activities exposed,
much to the fury of the other political party. Much to the fury even of the public.
Ukraine may have wanted Trump’s goodwill, but it doesn’t want the Democrats’ ill will.
It doesn't want the distraction or infamy of this investigation.
Impeachment, in this case, acts as a message to other countries too:
You don’t want to be part of our circus. Even so, we do live now in the world Washington feared.
Republicans are falling in line behind Trump, they are placing their loyalty to him, to each other,
above any sense of public accountability. And in doing, they have opened American politics to foreign influence
To foreign corruption. Partisanship like this, it creates eras in which corruption of all kinds flourishes.
Because so long as that corruption is to the benefit of the party in power, that American politics
has no true answer for official wrongdoing in periods of unified party government, it's chilling.
It's not that the impeachment process itself isn't working because I do think it has some benefits
even without conviction.
I think the frightening thing about it is
that it's impossible for it to be used if there isn't divided government.
Look, Hamilton wasn’t, in the end, just the author of Federalist 65.
He was also the author of much of Washington’s farewell address. Sadly, it’s his pessimism
about what would happen to an America driven by party, rather than his optimism about the Senate, that rings
true today. And yet, even a broken impeachment process has its uses.
The House can focus the public’s attention. It can send a message to the world.
It can create a record for the future.
Maybe that’s not sufficient. Maybe it's not as much as impeachment was initially designed to do.
But it’s something. And it's going to have to be enough.