What the Founders Would Have Done with TrumpRoundup
tags: impeachment, Constitutional Law, Donald Trump
Frank O. Bowman, III is Curators’ Distinguished Professor at the University of Missouri School of Law; and the author of High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.
Donald Trump has now been impeached by the House of Representatives for the second time but will not stand trial before the Senate until after he has left office. Senate backers of the president seem to be coalescing around the argument that at that point their body will no longer have jurisdiction over the by-then ex-president.
The majority of impeachment scholars maintain that the impending trial is perfectly proper. An insistent minority urge the opposite. The arguments so far focus primarily on the text of the constitution and on three prior impeachments: Senator William Blount who, in 1797-98, was impeached while in office and tried afterward; Secretary of War William Belknap, who in 1876 was both impeached and tried after leaving office; and Judge West Humphreys, who in 1862 was impeached, tried, convicted, and disqualified a year after he abandoned his office to join the Confederacy. Although these impeachments provide persuasive precedent for post-term Senate impeachment jurisdiction, obsessing over them can mislead us because none involved a president. Even though Article II, §4, renders all “civil officers” (a phrase we now read to include judges and executive branch appointees) impeachable, the president was the nearly exclusive focus of all the impeachment debates at the Constitutional Convention.
The delegates supported the ouster of a president for personal corruption, egregious incompetence, and betrayal of the nation to foreign powers. But a singular concern of the Framers, not merely when debating impeachment but throughout the process of designing the constitutional system, was the danger of a demagogue rising to the highest office and overthrowing republican government.
When composing our Constitution, the Framers drew on their educations and studied every historical model they could find. When crafting the impeachment clauses of the Constitution, they focused particularly on the constitutional history of Great Britain and the history of the limited number of prior republics, especially those of ancient Greece and Rome.
The unwritten British constitution was the Framers’ patrimony. In the wrenching process of resisting and then freeing themselves from British rule, they had studied and debated its every nuance. Likewise, the ancient history of Rome and Greece was the core of the “classical education” almost all the Framers possessed to one degree or another, and the educated members of the founding generation drew on their knowledge of it for inspiration and example. Their public and private papers are full of classical allusions. They commonly wrote under pseudonyms of Roman political personalities — Cato, Caesar, Brutus, Agrippa, Cincinnatus, and most famously, Publius, the pen name used by Alexander Hamilton, James Madison, and John Jay as authors of The Federalist Papers.
The impeachment mechanism written into the American Constitution owes its structure to a set of very specific lessons the Framers drew from British and classical history.
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