As the House slowly morphs Adam Schiff’s free-form closed-door search for a crime towards something close to that will be taken for impeachment, the air is filled with grave assertions that impeachment is a political process. That is only trivially true.
While any process involving the chief executive and the legislature is by definition political, impeachment has been granted legitimacy over the years when it has been taken seriously as an act of judicature. The general court of the legislature (thus, in fact, the Massachusetts Legislature is still called) sits in a judicial role.
When impeachment was being established in our Constitution, the Framers were aware of the work of the English common lawyer John Selden, who helped achieve one of the landmark accomplishments on the path to democracy, the 1629 Petition of Right. Selden wrote a work entitled Of the Judicature in Parliaments, which analyzed how in cases of impeachment (among others) Parliament acted as a judiciary body. If the process were not judicial and only political, the people would have no confidence that any crime worthy of impeachment had been committed. John Adams mentions in his diary how he had referred someone curious about the American impeachment process to Selden’s great work.
Understanding impeachment as Selden did to be an act of judicature, the Framers considered and rejected “maladministration” as constitutional grounds for impeachment and chose instead “high crimes and misdemeanors.” Impeachment was not to be the equivalent to the parliamentary vote of no confidence. The Constitution gave the people through the states the right to choose their own chief executive, who was to be independent of the legislature. Rights can only be denied anyone for crimes or misdemeanors, and then only after judicial due process of law. It follows closely the great British jurist William Blackstone’s description: “A prosecution of already known and established law.”
English history records a melancholy example of the deterioration of this judicial process: the trial and subsequent execution of King Charles I. By the time Charles was brought to trial, two bouts of civil war had been fought, and Parliament had been reduced through purge to a docile rump that would do only as Cromwell told it. No English lawyer would associate himself with the prosecution, and there was nothing known to English law that was in the end prosecuted. Political power was all that mattered, and some juridical cover was found to dress up the execution in the trappings of due process. But the judgment was only sustained by the sword, and when Cromwell died and the Army lost its political supremacy, the country in a popular convulsion rejected the legitimacy of the king’s execution and set his son and heir up on the restored throne. This they did even as all accepted constitutional parliamentary supremacy — the true legacy of Selden and his fellow lawyers and parliamentarians.
The recent turn away from Schiff’s blatantly non-judicial process is a partial acknowledgment of truths that Selden and the Framers clearly saw. Yet unlike the proceedings with Nixon and Clinton, the basics of due process have not been forthrightly established: identification of a crime known to law, cross-examination of all witnesses, open access to all evidence, equal right to call witnesses, and most of all, a true sense of judicial responsibility. Without these, the proceedings will not fail to generate revulsion as a violation of our right to have an independent chief executive elected by us, the people, and not serving at the pleasure of the legislative branch. Of course, those who do not have power want it. But if power is to remain in the hands of the people and not in the hands of those most adept at political maneuvering, then this country will decisively spurn any process that does not follow the model of Selden and Adams. If there is a crime, it must be for a crime known to law and with robust evidence and a process worthy of the high standards of American judicature.
Shmuel Klatzkin is a rabbi and serves as senior editor at the Rohr Jewish Learning Institute. He received his Ph.D. from Brandeis University in Near Eastern and Judaic Studies and writes and teaches extensively. The views presented here are the author’s own and do not necessarily represent the position of organizations with which he associates.