[Weiner] is making an argument from the same source material I mentioned, chiefly the Federalist papers. I still haven’t found Madison’s own specific arguments regarding it, but I think the source is irrelevant as the body of work published by the Founders (“Federalist” and “Antifederalist” alike) should be read as a single work documenting an internal dialogue, to be used as clarification when and where the final adopted documents possibly contain ambiguity. This could very well be one of those cases. That being said, the body of work by the Founders which may aid in revealing their intent or at least how they believed their philosophy of our political system out to be enshrined in the constitution, isn’t the only body of work used to interpret their intent. There is precedence and tradition, which the author of this article disregards when he says “Our tendency to read the impeachment power in an overly legalistic way, which is ratified by 230 years of excessive timidity about its use, obscures the political rather than juridical nature of the device.”
He’s right in nothing but that many of the earliest drafts and proposed language of the impeachment standards were very vague, such as (not an exhaustive list):
“…and removable on impeachment and conviction for mar-practice, corrupt conduct, and neglect of duty.” (from an article called “Variant Texts of the Plan Presented by William Patterson”)
“The governors, senators, and all officers of the United States to be liable to impeachment for mal and corrupt conduct; and, upon conviction, to be removed from office, and disqualified for holding any place of trust, or profit.” (from an article called “Variant Texts of the Plan Presented by Alexander Hamilton”)
“9. Resolved, that a National Executive be instituted … and to be removable on Impeachment and Conviction of Mal-Practice, or neglect of duty.” (Notes of William Patterson in the Federal Convention of 1787)
“Mr. Maddison observed that to prevent a Man from holding an Office longer than he ought, he may for mal-practice be impeached and removed” (Notes of Major William Pierce)
“Mr. Dickinson moved that in the seventh resolution, the words, and removable on impeachment and conviction for mal conduct or neglect in the execution of his office, should be inserted after the words ineligible a second time. Agreed to. The remainder postponed.” (Notes of Honorable Robert Yates on the Federal Convention of 1787)
“-Chief Magistrate must be free from impeachment extent-manners- Wilson” (Notes of Alexander Hamilton in the Federal Convention of 1787 – this isn’t necessarily Hamilton’s view, rather he noted that James Wilson of Pennsylvania made the argument)
So why the switch to far more legalistic language?
Well, we know from their other writings that the Founders crafted the Constitution with an eye towards halting the ever-changing and easily violent passions of the People and even the People’s representatives. So language that creates a standard which essentially means one thing when the people *feel* one way and an entirely different thing when the people *feel* differently wouldn’t cut it. So the only option was the funnel the standards through Rule of Law. And since we know Laws change as well, new laws are added and old laws dropped, there still had to be a certain open-endedness to the Impeachment Clause. This way, any enacted laws in the future would apply to presidents as well as the standards written into the Constitution.
“…shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” It would seem that treason is unarguable. “Corruption” was replaced with “bribery” which seems to be a much more legally describable act – I mean, what one Democrat calls “pursuing an agenda” one Republican will call “corruption” and vice versa, so the term “corruption” seems a bit vague. As for the final clause, I think that’s where the Founder’s had an eye for whatever future laws Congress enacted or repealed and the long litany of laws the soon to be Congress would immediately adopt from the old government anyway.
I think however, that one standard probably every President has missed (simply because we’ve bequeathed ourselves TOO many programs, laws and bureaucracies) is that every department and section of the Executive branch exists because of a law, in order to pursue a particular law and governed by law…and that technically, anytime an Executive Officer (up to the President) does NOT enforce laws on the books or fails to follow particular laws as they govern the Executive Branch, then they are committing impeachable offenses. But holy cow if that will ever be triggered.
The author of the article quotes, as his decisive proof, Hamilton’s Federalist #65:
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.”
He’s lifted that excerpt from a larger paragraph:
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
I think the author does a disservice by pulling the piece out of context. This paragraph is found within a 2-part essay on WHY the Senate has been given the power of trying impeachment proceedings, found within a larger arc of essays on the powers of the Senate in general. The focus of the essay has little to do with WHY any particular President should be impeached and more to do with WHY the Senate is the least worst forum to try the President in. I word it “least worst”, because the bulk of the essay acknowledges that every branch of government could have serious separation of powers issues and conflict of interest issues as the court of impeachment, but that the Senate is the “least worst” of them, and with impeachment split between House and Senate, and the Senate’s conflicts of interest (namely the appointment of Executive positions, is diluted to merely Confirmation of presidential nominations) that it’s a much better forum for the trial.
I think what Hamilton is actually describing, is that no matter what reason a President is impeached, it by it’s own nature will be political. Not that it can, ethically, have a political *source*, but that it will by nature have a political *quality*. Hamilton is merely describing the problems caused by impeachment and why the Senate best alleviates those problems.
I cannot find anywhere else that the Founders mused on exactly what they meant by “corruption” or “mal-practice” or “neglect of duty” and can only assume, since their vision was the Rule of Law, that they certainly did not mean any standard based on the capricious whims of opposing political opinions. But I don’t even think the author needs to make the argument he is making…he merely needs to follow the process and determine if Trump has broken any laws, which seems to be the “obstruction of justice” tack the Left is currently undertaking.