Month: January 2020

The greatest canard being advanced by Trump, his lawyers and defenders is that the articles of impeachment in his impeachment trial are deficient because they do not charge that he committed a specific identifiable crime.
Nothing can be further from the truth.
A simple review of American history demonstrates the fallacy inherent in this argument.
The impeachment clause that was under consideration during the Constitutional Convention in Philadelphia in 1787 was being discussed and debated while the overall framework of the proposed Federal system was being designed.
The Constitution had neither been approved by the Convention nor ratified by the states.
Thus, there was no Executive, Legislative or Judicial branches in existence.
There was no House of Representatives or Senate which could propose and enact laws. There was no President who could approve or veto enactments and, as a result, there was no penal code in existence which could define the crimes that would make the President and other officers of a government criminally liable or liable for impeachment.
In determining what offenses might be included in an impeachment clause, the Framers included those crimes that they were familiar with having just fought a war of independence a decade before. The crimes of Treason and Bribery were within their recent experience but much debate would ensue over what other conduct would constitute an impeachable offense.
Professor Engel in his portion of the work, Impeachment, referenced in my earlier blog post on this subject, quoted Governeur Morris, a convert to the requirement for an impeachment clause on the subject of bribery; “”A president may be bribed by a greater interest to betray his trust and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.”
The Framers in trying to decide what other conduct might be a basis upon which to impeach a president, looked to the several state constitutions in existence. Five states adopted “maladministration” as the ground for impeachment. New York specified “misconduct” and North Carolina, “misbehavior.” James Madison suggested “incapacity, negligence or perfidy.”
Professor Engel recounts how Virginia’s George Mason grew frustrated at the impasse, complaining; “Why is the provision restricted to treason and bribery only? He suggested that they reconsider “maladministration.” Madison, however, objected that “maladministration” was too subjective and that a president could then be removed for solely political reasons. A malevolent intent should be required. Ultimately, Mason bowed to Madison’s reasoning and proposed “high crimes and misdemeanors.”
Professor Engel notes that the term “High crimes and misdemeanors” has “puzzled readers ever since.” I can confess that while attending law school and throughout my career as a lawyer and a judge, if you had asked me to explain what “High crimes and misdemeanors” meant, I would have said “high crimes” was synonymous with the term “felony” and misdemeanor had its ordinary accepted meaning.
I was astounded to discover that my interpretation would have been wrong.
Engel explains that “High” offenses appeared in English law as early as 1386 and evolved over centuries along a common thread. ‘High’ offenses were committed against the sovereign’s state, or against the people in republics where the people had sovereignty on their own. The adjective is the key. A ’crime’ occurred where one citizen or subject harmed another. “High crimes” were conversely those committed against the crown in a monarchy, or the people in a democracy. The term says nothing about the severity of the crime or its consequent penalty, merely as one that surpassed mere criminal law, being a more fundamental assault against the body politic…….Put in even clearer terms, ‘high’ crimes warranting impeachment were those a president might commit against the entire American people.” Engel further explains “To the Constiution’s authors, therefore, a ‘high crime and misdemeanor,’ need not violate an extant law or statute, and neither would a president who commits common violation be guilty of a ‘high’ offense. An impeachable offense need not be illegal at all.”
Thus, it seems that a president who “shoots someone on 5th Avenue” might ultimately be prosecuted criminally for it, he would not be liable for impeachment for it but one who interfered or obstructed the investigation into it, could be.
Kenneth Starr and Alan Dershowitz are clearly wrong in suggesting that absent the inclusion of a specific criminal offense that the articles of impeachment are deficient.
I suspect that they know that too.

I’ve been multi-tasking this past week.
I agreed to co-host a discussion on Impeachment with my friend, former Syracuse Mayor, Stephanie Miner at Colgate University where she is the Rakin Fellow to be held on Friday, February 7. So, I’ve been familiarizing myself with the topics and sources she identified and gathering other readings on the subject. I’ve been reading and taking notes while at the same time, watching the impeachment trial on television.
Comparing the readings and sources with the commentary being offered by participants in the trial and some of those commenting on it, their lack of knowledge about impeachment has stunned me.
One of the best references on this subject is the book Impeachment by John Meacham, Timothy Naftali, Peter Baker and Jeffrey Engel.
Engel’s explanation of the evolution of the impeachment clause and its inclusion in the Constitution was particularly illuminating.
I was surprised to learn that whether to include impeachment in the Constitution at all was a controversial issue for the Framers during the Constitutional Convention in Philadelphia in 1787.
The Framers were familiar with the mechanism of impeachment and removal from office because it had existed in the British system as early as the fourteenth century. While the King, who was ordained by Divine right, couldn’t be impeached, judges and other ministers could and were impeached and removed from office.
As the framers debated the duties and powers of the office of the President, which they called the “First Magistrate,” conflicting opinions were offered about the need for impeachment. Benjamin Franklin observed about George Washington that, “The first man at the helm will be a good one, nobody knows what sort may come afterwards.” George Mason of Virginia declared “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose as well as by the corruptibility of the man chosen.”
When an impeachment clause was adopted on June 2, 1787, George Mason offered an observation that is often cited today. “No point is more important than the right of impeachment shall be continued. Shall any man be above the law?”
Governeur Morris, a delegate from Pennsylvania, approved of impeachment but resisted vesting the impeachment power in the Legislature believing that it would empower the Legislature, while at the same time, weaken the President, noting that “It will hold him in such dependence that he will be no check on the legislature and will not be a firm guardian of the people and the public trust.” Morris believed that a good president would be returned to office and a bad one voted out. He believed that a shorter term of office and frequent referenda was preferable to making the executive beholden to the legislature.
Delegate, William Davis, of North Carolina, in an observation that should have particular resonance today, declared “If non-impeachable, a thoroughly immunized president would spare no effort or means whatever to get himself re-elected.”
George Mason offered a similar caution opining that, “The man who has practiced corruption and by that means procured his appointment in the first instance might otherwise be suffered to escape punishment by repeating his guilt.” It is not lost on me that Trump made his “perfect call” to the President of Ukraine seeking an investigation of the Bidens, on the day following Robert Mueller’s testimony about the conclusions in his report concerning Russian meddling in the 2016 election.
Benjamin Franklin finally brought those delegates who were wavering on the inclusion of an impeachment clause to the conclusion that it was essential by posing and answering a question. As he framed it, “What was the practice before this in the cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination.”
The Framers had to next decide what would be a sufficient basis for impeaching a president.
I’ll share some thoughts on that in the next blog post.