Inside the Founding Fathers' Debate Over What Constituted an Impeachable Offense

[mahatmakanejeeves]

George Mason's name came up frequently when the three law professors testified before the House committee last week (or has it been two weeks already?). Here's more about the inclusion of impeachment in the Constitution.

Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense
If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is


"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy. James Madison is at center, seated, to the right of Ben Franklin. (WikiCommons)

By Erick Trickey
smithsonian.com
October 2, 2017

The Constitutional Convention in Philadelphia was winding down, the draft of the United States’ supreme law almost finished, and George Mason, the author of Virginia’s Declaration of Rights, was becoming alarmed. Over the course of the convention, the 61-year-old had come to fear the powerful new government his colleagues were creating. Mason thought the president could become a tyrant as oppressive as George III.

So on September 8, 1787, he rose to ask his fellow delegates a question of historic importance. Why, Mason asked, were treason and bribery the only grounds in the draft Constitution for impeaching the president? Treason, he warned, wouldn’t include “attempts to subvert the Constitution.”

After a sharp back-and-forth with fellow Virginian James Madison, Mason came up with another category of impeachable offenses: “other high crimes and misdemeanors.” Americans have debated the meaning of this decidedly open-ended phrase ever since. But its inclusion, as well as the guidance the Founders left regarding its interpretation, offers more protection against a dangerous executive power than many realize.

Of all the Founders who debated impeachment, three Virginians—Mason, Madison and delegate Edmund Randolph—did the most to set down a vision of when Congress should remove a president from office. Though the men had very different positions on the Constitution, their debates in Philadelphia and at Virginia’s ratifying convention in Richmond produced crucial definitions of an impeachable offense. And their ultimate agreement—that a president should be impeached for abuses of power that subvert the Constitution, the integrity of government, or the rule of law—remains essential to the debates we’re having today, 230 years later.
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[exboyfil]

1. I wonder about the standards of the time

George Washington was one of the largest land owners at the time. His policies of expansion westward increased the value of his holdings. Would he be impeachable now if it is shown that he made executive decisions because it would make him richer?

[malthaussen]

2. I dislike the term "impeachable."

Anything is impeachable if you have the leverage to make it stick. "Would he be impeached" is more to the point, but that's a counter-factual question.

In the context of the times, I'd say a little profit on political office was expected: the formal sentence forbidding someone to ever hold a government post went "may not hold an office of trust or profit in the government..." The British, who set our precedents, were a little more strict about emoluments of office than, say, the French, and such emoluments were always a convenient stick with which to beat an unpopular minister: several were impeached in the 17th century for just that reason. So again we are down to leverage: there was no inflexible standard, profiting from an office was just a convenient excuse to punish somebody the Legislature didn't like anyway. Doubtful that would have happened to old George. Now, however? Depends on how popular George could make himself. Hey, half the country still thinks Donald Trump should not be impeached.

-- Mal