Lone Candle

“what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.”

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“Even though the Constitution’s text does not explicitly address whether the Senate can try a former president, the evidence from English practice, state constitutions, the Constitutional Convention, and the Federalist Papers—all core sources for originalist legal arguments—suggest that its authors fully expected that the Senate would use its power that way.”

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“As Hamilton wrote in the Federalist Papers, a core source of original meaning, the framers “borrowed” the model from the English. And, as Raskin pointed out, every English impeachment during the lifetimes of the Founders was of a former official. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British official in India, which began during the summer of 1787. No delegate raised any concern about its impropriety. No early state constitution prohibited impeaching a former official—and in fact, Delaware allowed its chief executive to be impeached only “when he is out of office.” Early state constitutions are usually core evidence for originalists. The English and early American practice suggest an emphasis more on punishment—for instance, disqualification from future office—than on removal.

In the 1787 Convention debates, as recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents abusing their power at the end of their terms in order to get reelected. Several of them specifically mentioned that election fraud and manipulation of the Electoral College could be grounds for impeachment.”

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“When the Convention specifically debated the timing of impeachments, delegates William Davey, George Mason, Edmund Randolph and Gouverneur Morris (the last three considered among the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the Convention turned to the proposed impeachment language, and two delegates, Morris and Charles Pinckney, objected. Madison recorded Pinckney’s objection: A president “ought not to be impeachable whilst in office.” Morris explained that such impeachments of sitting presidents would hand Congress too much power over the president, who might be compromised by fear of impeachment. This argument is similar to the concern about whether a sitting president can be indicted and prosecuted.
William Davie answered, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as an essential security for the good behaviour of the Executive.”

Morris saw the public as the final arbiter—“In case he should be re-elected, that will be sufficient proof of his innocence,” he said—but neither Morris nor anyone else in the long ensuing debate suggested that a president who wasn’t reelected should be able to avoid impeachment for what he’d done in office. And in fact, several delegates addressed Morris by emphasizing their concerns that presidents might abuse their power at a particularly dangerous time: during bids for reelection.

On that same day, George Mason was especially concerned with election fraud and the Electoral College—with presidents corrupting electors to get elected, and then attempting to stay in power “by repeating his guilt.” It defies logic to think that a president who tried such a scheme could be impeached only if he somehow succeeded and stayed in office—especially given the British precedent of out-of-office impeachments, from which the Founders were drawing.

Then Randolph emphasized broad application: “Guilt wherever found ought to be punished”—reflecting the view that the purpose was not just removal from office, but more broadly punishment for abuses of power.

In the final speech of the debate on July 20, and perhaps the most significant, Gouverneur Morris, a supporter of a strong presidency, conceded that his colleagues had persuaded him to drop his concern about timing and to vote for the impeachment clause. After noting the infamous “Secret Treaty of Dover,” in which England’s Charles II made a corrupt deal with France’s Louis XIV that led to war, Morris concluded that “treachery” justified impeachment. But then he added other reasons, including, “Corrupting his electors, and incapacity.”

He proposed that incapacity, which implied no transgression, be punished only by “degradation from his office.” But corruption during a reelection effort deserved full impeachment, removal and disqualification from office. Impeachment proceedings for such abuses would by definition have to take place after the election. And implicitly, Morris was highlighting the urgency of disqualification for treachery and corruption of the Electoral College, regardless of removal. With Morris’ reversal, the Convention moved to vote, and impeachment prevailed 8-2.”

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“The original meaning of the impeachment clauses is that they applied to former presidents, as well as presidents.”

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“The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.”