Impeachment’s Political Heart – The New York Times

Mason’s intent was clearly to delineate a political category, something Alexander Hamilton — who did not shrink in the defense of executive power — recognized in Federalist 65, which says that impeachment applied to offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

The victim Hamilton identified — “the society itself” — defined the nature of the offense. Earlier, at the 1787 Constitutional Convention, Madison had indicated the same understanding. Note, crucially, the purpose for which he said impeachment should be available: “Mr. Madison thought it indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the Chief Magistrate.”

The tendency to read “high Crimes and Misdemeanors” too literally is one reason the 25th amendment, which treats presidential incapacity as though it requires a special constitutional mechanism when in fact one was already in place, became necessary. It is also why, in a development that surely would have surprised Hamilton and Madison alike, the republic has managed 23 decades without a successful impeachment and conviction, the resignation of President Richard Nixon notwithstanding.

The political nature of the impeachment authority does not mean it is merely a contest over power. Still less is it supposed to rehash electoral disputes. Instead, the point is that because its purpose is to “defend the community” rather than to punish an individual, the standards of a criminal trial do not apply. The Fifth Amendment’s specification that prosecuting an individual for an act for which he or she was impeached does not constitute double jeopardy reinforces this understanding.

The prophylactic rather than punitive character of the impeachment power still, of course, requires an offense. But the offense indicates a pattern on the basis of which future behavior can be predicted. The idea is not to humiliate the president or to cause him to suffer by the loss of his office. It is to protect the public against his negligence or abuse.

In this sense, it does not matter whether Mr. Trump explicitly intended to obstruct justice when he reportedly attempted to cajole Mr. Comey. The determination Congress must make is what its level of confidence is that Mr. Trump can be trusted not to abuse the levers of power in similar ways if he continues to hold them. On another front, there is little question that he committed no crime when he leaked classified information to the Russian ambassador. But that, too, is not the question impeachment poses. The issue is whether Madison’s community and Hamilton’s society need to be defended against similar behavior in the future.

Read the full article from the Source…

Back to Top