With Nancy Pelosi finally sending the impeachment articles to the Senate and Mitch McConnell’s plan to open the Senate trial on Tuesday, Impeachment Act III opens. Unlike Acts I (Schiff) and II (Nadler), which jettisoned the Nixon (1974) and Clinton (1999) precedents, Act III will feature Republicans seeking to return to due process, based on the two 20th-century presidential impeachments. Pelosi’s appointment of Schiff and Nadler means Democrats will try to import Acts I and II into Senate procedure.
The House vote to impeach should be understood as a radical departure from not only longstanding American precedent but also English antecedents, dating back to the year 1350. We will look at English antecedents through the lens of early American precedents, which derived from, but evolved differently than, the English legacy.
This article is the first of two. Next week, my second article will examine more closely the Nixon and Clinton precedents.
Early America, (1635–1787): In their 1984 study of how impeachment developed in America, co-authors Peter C. Hoffer and N. E. H. Hull identify three phases: (a) criminal impeachment, during which officials were targeted for criminal offenses; (b) provincial impeachment, during which officials were targeted for abuse of local governance; and (c) revolutionary impeachment, when the target was abuse of power by their overlords in the English parliament.
Most nettlesome were problems stemming from the inherently hybrid vehicle of impeachment: it intertwined legislative, executive, and judicial elements. It thus created tensions among the branches, and among political and legal principles, that could be limited but never fully resolved. The solution settled upon by the Framers was to adopt from English law the judicial nature of trials but not seat them in the judiciary. Instead, trials would be conducted in the Senate (roughly equivalent to Britain’s House of Lords), with impeachment (the filing of charges) brought by the House of Representatives (roughly equivalent to Britain’s House of Commons). In effect, while impeachment and removal of officials is a political act, its procedures must be governed by legal norms in the trial phase. The Framers rejected one major aspect of English practice: removal of officers for mere maladministration or incompetence. The American presidency was not to be dominated by the Congress.
The late Sen. Robert Byrd, who had been majority leader and also wrote a magisterial two-volume history of the Senate’s first two centuries, added to the above that the Framers were intimately familiar not only with English practice but also with impeachment in colonial America and America under the Articles of Confederation. Their acquaintanceship included experience with impeachments in actual practice, not simply as history. But many early impeachments were directed at maladministration, a ground so broad that it would have transformed the presidency into a state of vassalage. This would have created a “no-confidence” parliamentary system, one the Framers decisively rejected. (One notable target of state-level impeachment was Virginia Gov. Thomas Jefferson, and supporters included Declaration signers Richard Henry Lee and Patrick Henry. The charges, over the governor’s handling of the state militia, went nowhere.)
The American Republic. Since its 1789 birth, America has seen 19 impeachments. These include 15 judges, one Cabinet member (secretary of war in 1875), and three presidential impeachments: Andrew Johnson, impeached by the House but then acquitted in the Senate (1868), Richard Nixon, who resigned facing certain impeachment (1974), and Bill Clinton (impeached in 1998, acquitted in 1999).
Let us look back at two key 19th-century precedents: the first significant impeachment of a judge, Samuel Chase (1804–05), narrowly acquitted in his Senate trial and the first impeachment of a president, Andrew Johnson (1868), also narrowly acquitted. Doing so will offer us historical guideposts that can instruct us as to the present situation. We begin with the Framers of 1787–88.
The Framers of Philadelphia. In his contemporaneous Notes of Debates in the Federal Convention of 1787, James Madison, whose stellar role in those debates and his role in writing the Federalist Papers earned him the sobriquet “Father of the Constitution,” summarized (his Notes were not verbatim) the exchanges in Philadelphia, on impeachment. Madison explained the necessity of having a remedy for the “incapacity, negligence, or perfidy” of the president, with the fixed four-year term an insufficient safeguard. The vote, by State, was 8-2 in favor of making the executive impeachable. Notably, the presidential pardon power, virtually absolute, was expressly denied the president as to impeachments.
The Grand Convention that met in Philadelphia over the summer of 1787 was followed by the campaign from September 1787 to July 1788, conducted by way of The Federalist, 85 papers that by virtual acclamation constitute the greatest reflection on constitutional governance in world history. Put simply, without the latter, the former would never have been ratified. Papers 65, 66, 79, and 81, all attributed to Alexander Hamilton, address impeachment.
In paper 65, Hamilton writes that impeachable offenses are political and that “The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”
The Senate, insulated from the passions of the day — elected to six-year terms by state Legislatures until passage of the 17th Amendment in 1913 — was thus better suited to adjudicate trials than the House of Representatives, elected every two years by direct popular vote. The Supreme Court bench was too few in number to fill the role. Hamilton goes on to note that after impeachment, the president would still be subject to prosecution in the law courts. In paper 66, Hamilton notes that making the House the locus of impeachment — the formal filing of charges — and then the Senate as locus for trial separates the accusers from those who pass final judgment. Ever skeptical of human nature, Hamilton drily says of the Senate, “We may thus far count upon their pride, if not their virtue.” In Federalist 79, he notes that the Constitution prohibits diminishing compensation of judges during their tenure, but increases are allowed; this is because they serve for life. In paper 81, Hamilton stresses that judges hold office during “good behavior,” a safeguard needed given life tenure. Impeachment of judges provides the remedy for bad behavior.
The Framers adopted one final provision to guard against usurpation of presidential power by a sitting vice president: whereas for all other impeachments, the vice president presides over the Senate, when presidents are on trial, the chief justice of the Supreme Court presides. (A key inside player is the Senate parliamentarian, who will advise the chief justice on procedural rulings; her advice is likely to weigh heavily.) The chief justice, however, cannot cast a tie-breaking vote, as vice presidents do on other Senate votes. Thus Republicans, with 51 senators, cannot lose any of their number, if they are to overrule parliamentary rulings by the chief justice — unless one or more Democrats vote with the Republicans.
There is, of course, one other impeachment trial over which the vice president cannot preside: if the vice president is impeached and faces Senate trial. The presiding officer is the president pro tempore — in this Senate, Iowa’s Chuck Grassley. In 1868, the vice presidency was vacant, Andrew Johnson having risen to the presidency upon Lincoln’s death. That year, the radical Republican senator from Ohio, Benjamin Wade, presided, per the 1792 law governing presidential succession, which provided for succession by the president “pro tem” of the Senate and then the Speaker of the House. (In 1886, the line of succession was changed to be the cabinet secretaries, in order of department creation, beginning with the secretary of state, with Congress excluded. In 1947, at Harry Truman’s request, Congress put the speaker of the House first after the vice president, and then the president pro tem, followed by the Cabinet heads, in chronological order.)
Samuel Chase. In the 19th century, Supreme Court judges served in two capacities: in Washington, D.C., for a few months per year, they sat as justices of the Supreme Court, and for much of the rest of each year, they sat on federal district courts, hearing cases alongside a local federal district court judge. Federal district courts were scattered across the several states, the number of which expanded during the 19th century. Each Supreme Court justice was assigned a “circuit” of courts where they would sit; doing so entailed “riding circuit” on horseback. To reach courts in remote areas could take weeks.
Samuel Chase faced impeachment only for his alleged misconduct during trials where he sat whilst riding circuit; his actions on the Supreme Court were not targeted. Mainly the complaints centered on his nasty judicial temperament. He escaped impeachment on one count by a single vote in the Senate. The late Chief Justice William Rehnquist observed in his magisterial history of impeachments, Grand Inquests (1992), that the failed Chase impeachment set the bar high: judges would not be impeached for specific rulings they made or for their points of view. Some form of aggravated misconduct, often but not necessarily criminal, would be required. Rehnquist noted that these boundary lines preserved the independence of the federal judiciary. Those lines have not been crossed yet.
Turning to the presidential impeachments and trials, all began with two major threshold procedural moves. They were specifically authorized to commence an impeachment inquiry by recorded floor votes of the full House, and they were conducted in full public view. Of the latter, in the 19th-century distance communications were limited to the wireless telegraph, while the 1974 and 1998–99 proceedings were vastly amplified by pervasive radio and television. Although online internet access was available, it was very limited. The past 20 years has seen an explosive growth of U.S. household fixed (excluding mobile-only) access. In 2000, there were but 7 million such households; in 2018 there were over 110 million. Thus, from now on, social media surely will play a political role in high-visibility impeachments (those of presidents, vice presidents, and Supreme Court justices).
Andrew Johnson. The tumultuous effort to unseat Andrew Johnson is recognized by historians as a prime example of an abusive impeachment and one lacking in merit. The sequences of events began with the 39th Congress, whose term ran until March 4, 1867 (a date not changed until the 20th Amendment moved the presidential inauguration to January 20, beginning in 1937). In December 1866, the 39th House of Representatives voted to open in impeachment inquiry, referring the matter to the House Judiciary Committee (HJC). Tellingly, Rehnquist writes that the HJC inquiry did not — pace Adam Schiff today — act as a grand jury, which is convened to investigate specific crimes; rather, it was in form a political campaign seeking to levy charges against an opponent.
Meanwhile, the full 39th Congress, in its closing months, passed three bills: (a) the Reconstruction Act, superseding existing governance in the defeated states with far harsher rules; (b) the Army Appropriations Act, requiring that all presidential orders under the law go through Gen. Ulysses S. Grant, who could not be removed by the president without Senate approval; and (c) the Tenure of Office Act (TOA), on removal of executive appointees. Johnson vetoed the first law, which then was passed by overriding his veto. The army bill Johnson signed, with a statement questioning its constitutionality.
The heart of the case against Johnson was his firing of Secretary of War Edwin Stanton, in violation of the third law. The TOA expressly prohibited president Johnson from firing executive branch officials confirmed by the Senate, one of which was Stanton, a War Democrat (like Johnson) who frequently tried to undercut Johnson’s Reconstruction policies. Widely accepted now as an unconstitutional law and vetoed by Johnson citing exactly that reason, the Radical Republicans (RRs) resolved to remove Johnson for having done so. They came within one vote of succeeding in the Senate trial (as had the Democrat-Republicans in the Samuel Chase trial in 1805).
Immediately upon the expiration of the 39th Congress, the 40th Congress, far more tilted toward the RRs, convened. The new Senate took a significant step: it elected RR Benjamin Wade of Ohio as president pro tem to preside over the Senate when the vice president is not in attendance. But as Johnson became president upon Lincoln’s assassination, the vice presidency was vacant. Were Johnson removed from office, under the succession law, then Wade would ascend from his senatorial post to become president.
Justice Rehnquist notes the irony in the Johnson 1868 conflict coming to a head on George Washington’s calendar birthday (February 22, a Saturday in 1868) — a date celebrated separately, as was Lincoln’s (February 9), but later sacrificed on the altar of long weekends and bargain shopping. The House started impeachment proceedings on Sunday, in the Reconstruction Committee, and on Monday, February 24, voted along party lines, 126 to 47, in favor of impeachment. On February 29, a special committee convened solely to draw up articles of impeachment reported out nine articles. Every article save two was directed at the president’s exercise of rights to fire executive branch employees and/or the assertion of his right to do so.
The House managers were mostly RRs, but moderate John Bingham of Ohio was selected as chairman of the managers. The Senate appointed six RRs and one Democrat to draw up rules for the trial. On March 4, 1868 — exactly one year after the 40th Congress was convened, the Senate convened to receive the articles of impeachment from the House managers. On March 5, Chief Justice Salmon Chase was sworn in to preside over the Senate trial. After procedural wrangles, the trial commenced on March 30. On May 16 and 26, votes were taken on three of the 11 articles. They all failed. Astonishingly, the Senate never voted on the other eight articles.
The TOA was repealed in 1887, during Grover Cleveland’s first term. In Myers v. United States (1926), the Supreme Court held that presidents have plenary power to fire executive-branch employees. But in Humphrey’s Executor (1935), the Supreme Court partly backtracked: Congress can create an agency that exercises legislative and/or judicial powers and can prevent presidents from firing such officials by limiting presidential authority to fire to executive-branch officials. And in Morrison v. Olson (1988), the Supreme Court — 7-1, over Justice Scalia’s vigorous dissent — upheld the Office of the Independent Counsel, created by the 1978 Ethics in Government Act. Although in 1999, bipartisan majorities in both Houses voted to abolish the office, this precedent leaves open the prospect that a future Congress, if dominated by one party, could revive the law to harass a president of another party.
Bottom Line. In the 19th century, the historical precedents for impeachment narrowed in three important ways: (1) impeachments would not be based upon opposition to substantive presidential policy; (2) impeachments would not lie for generalized “maladministration”; and (3) impeachments would not be based upon usurpation of legitimate powers given the president.
In effect, Democrats aim to revive 19th-century impeachment precedents, markers that were rejected during the Nixon and Clinton impeachments.
John C. Wohlstetter is author of Sleepwalking with the Bomb (2014).